Delhi District Court
State vs . Rajender Parkash & Anr on 1 November, 2012
FIR no. 354/00
PS Narela
U/s. 448/34 IPC
State Vs. Rajender Parkash & anr
IN THE COURT OF SH. SANDEEP GUPTA:
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR no. 354/00
PS Narela
U/s. 448/34 IPC
State Vs. Rajender Parkash & anr
Date of Institution of case:- 16.03.01
Date on which reserved for orders:- 27.09.12
Date on which Judgment pronounced:- 01.11.12
JUDGMENT
Unique ID no. :02401R0567782003
Date of commission of offence :20.11.00
Name of the complainant :Smt. Ram Pyari,
W/o Sh. Om Prakash,
R/o H.no. 1977, Railway Road,
Narela, Delhi-40.
Name and address of accused :Rajender Prakash
S/o Sh. Ganga Sahay
Devender
S/o Sh. Rajender Prakash,
Both R/o H.no. 311,
Pana Udyan, Narela, Delhi-40.
Offence complained of :448/34 IPC
Plea of accused :Pleaded not guilty
Date of order :01.11.12
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The present case was registered on the basis of the complaint of one Smt. Ram Pyari, W/o Sh. Om Prakash, R/o H.no. 1977, Railway Road, Narela, Delhi. It is alleged in the Page 1 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr said complaint that she was a tenant in the shop and went to the Doctor to take medicines and when she came back she saw that accused Rajinder and Devinder were cutting the lock of the door and of the shop and when she tried to prevent them from breaking / open the lock, they pushed her and forcibly cut the lock and threw out the articles kept in the shop and on the basis of the said allegations, the present FIR bearing no.354/00 was registered at Police station Narela and the accused persons have been charged with the offence under Section 448/354/34 IPC.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet was supplied to the accused persons in compliance of Section 207 Cr.P.C. and charge was framed against accused persons on the ground that they outraged the modesty of the complainant by pushing her and also committed a house trespass by entering into the shop, which was under her tenancy at the time of offence and accordingly, charge U/s. 448/354/34 IPC was framed against them to which they pleaded not guilty and claimed trial.
3. It is a matter of record that vide the order of Ld. ASJ dated, 18.10.02, wherein it was ordered that the accused Page 2 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr persons be tried for the offence U/s. 448/34 IPC only. Accordingly, vide order dated 15.09.03, charge U/s. 448/34 IPC was framed, to which accused persons pleaded not guilty and claimed trial.
4. In support of its version, the prosecution has examined six witnesses.
5. PW 1 is Asstt. Sub-Inspector Jagir Singh, no. 4524 D, PS Narela Industrial Area, Delhi. He has proved the copy of FIR as Ex. PW1/A as well as DD no. 12 A as Ex. PW1/B.
6. PW 2 is Smt. Ram Piyari, W/o Sh. Om Prakash, R/o H.no. 1977, Railway Road, Narela, Delhi. She is the complainant in the present matter. She has deposed that she was running a fruit shop under the landlordship of the accused Rajinder at the monthly rent of Rs. 15/- per month. She has further deposed that the said shop was taken by her grandfather-in-law Sh. Sadhu Ram and after the death of Sh. Sadhu Ram, her husband Om Prakash used to run the shop and she also used to sit on the shop. She has further deposed that on 20.11.00, when she had gone to take medicines and when she was coming back, she saw that Rajinder and Page 3 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr Devinder had cut the lock of her shop and were throwing out her articles of her shop and when she protested, the accused persons misbehaved with her. She has further deposed that she called the police and the police officials came at her shop. She has further deposed that police had seized the lock from the spot and she went to the PS and when she came back, she found another lock placed on the shop. She has further deposed that her brother told Om Prakash told her that Devender had put the said lock and the same was removed by the police. She has further deposed that her statement was recorded by the police. She has further deposed that she is still in possession of the said shop. She has further deposed that shop in question was taken on rent from the father of the accused Rajinder.
This witness was cross examined at length by Ld. Defence counsel and in her cross-examination, she has deposed that the shop was taken by Sh. Sadhu Ram before her marriage. She admitted as correct that a Civil case, filed by Rajinder Prakash is pending against her and her husband. She has further deposed that her husband has expired. She has further deposed that she has not brought the original rent receipt of the said shop. She has further deposed that she could not identify the signatures of Om Prakash but he used to sign. She denied the suggestion that on 20.11.00, Om Prakash Page 4 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr has obtained Rs. 1,00,000/- and had handed over the possession of the said shop to Rajender. She has further deposed that she has no knowledge that Om Prakash has deposited Rs. 1,00,000/- in the bank. She admitted as incorrect that she had wrongly named the accused persons or she had grabbed the shop of the accused persons with the help of police. She denied the suggestion that she is deposing falsely.
7. PW3 is Sh. Narinder Kumar, S/o Sh. Mohan Lal, R/o 1977 A, Railway Road, Narela, Delhi. He has deposed that he is photographer by profession and used to work at M/s. Subhash Photo Studio. He has further deposed that he did not remember the exact date, month and year but around 7/8 years back, he was called by HC Tejpal Singh from PS Narela at the shop of one Ram Piyari to take some photographs. He has further deposed that he took the photographs of the spot Ex. PX and PY and after taking the photographs, he returned back to his shop.
This witness was cross-examined by Ld. APP and in his cross-examination, he admitted as correct that the said shop was in possession of one Ram Piyari, who used to sell fruits. He denied the suggestion that on 20.11.00, he told the police that Rajender Prakash Verma and his son Devinder Page 5 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr Kumar had broken the lock of the shop of Ram Pyari and thrown away her articles from the shop. This witness was confronted with the portion B to B1 of statement mark A, where it was so recorded. He has admitted as correct that when he reached at the spot, articles belonging to Ram Piyari were thrown out on the road and Rajender Prakash and Devinder Kumar were present at the spot. He denied the suggestion that he has been won over by the accused persons.
This witness was cross-examined by Ld. Defence counsel.
8. PW4 is Sh. Satpal, S/o Sh. Hari Singh, R/o H.no. 48, Village and Post Office Bankner, Narela, Delhi. He has deposed that accused Rajender Prasad was the owner of the said shop in question, which was on tenancy to Om Prakash, husband of Ram Piyari. He has further deposed that Om Prakash had vacated the said shop after taking consideration from the owner Rajender Prasad. He has further deposed that no fighting or untoward incident had taken place in the said shop in his presence.
This witness was cross-examined by Ld. APP and in his cross-examination, he denied the suggestion having made statement mark B to the police at any point of time. He Page 6 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr admitted as correct that he is a tenant in the shop of Rajender Prasad. He denied the suggestion that he being the tenant of the accused is deposing falsely.
9. PW5 is Asstt. Sub-Inspector Ranbir Singh, no. 2031 D, PCR, Outer Zone, Delhi. He has proved the entry made at serial no. 652/00 in register no. 19 as Ex. PW5/A.
10. PW6 is Constable Suresh Kumar, no. 756 W, PS Uttam Nagar, Delhi. He has deposed that on 20.11.00, he joined the investigation of the present case alongwith HC Tej Pal and reached at the spot i.e H.no. 1977 and met complainant Ram Pyari. He has further deposed that IO recorded the statement of complainant Ram Pyari, prepared rukka and got the case registered through him. He has further deposed that IO seized two locks (one was locked and other was cut with sharp object). He has further deposed that IO prepared pullanda and sealed the same with the seal of KPS. He has further deposed that IO called the photographer, who took the photographs of the shop. He has further deposed that IO arrested the accused persons and conducted their personal search. He has further deposed that on producing surety, accused were released on bail.
This witness was cross-examined at length by Ld. Page 7 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr Defence counsel.
11. After the examination of prosecution witnesses, prosecution evidence was closed vide order dated 23.08.12.
12. Subsequent to the recording of statement of witnesses, statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused persons in which they have submitted that they have been falsely implicated in the present case. They have further submitted that they do not wish to lead any evidence. Thereafter, the matter was posted for final arguments.
13. I have heard the arguments advanced by Ld. APP for the state, Ld. Defence counsel and perused the record.
14. In the present case, the accused has been charged with for the offence under Section 448/34 IPC and in order to sustain conviction, prosecution has to prove all the ingredients of above said Section.
15. To prove the offence of criminal trespass, first of all, the complainant Smt. Ram Pyari had to show that she was in Page 8 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr lawful possession of the property in question. Evidence of PW3 Sh. Narender Kumar is quite significant in the present matter, who specifically deposed that he did not see the accused persons breaking the lock of the shop of Ram Pyari and he could not depose anything inculpatory with respect to the accused persons. Now, referring to evidence of PW4 Satpal, who deposed that Om Prakash, the husband of the complainant Smt. Ram Pyari had vacated the shop after receiving the consideration from the owner Rajender Prakash, one of the accused in the present matter. He also stated that no fighting and any other untoward incident happened at the alleged time and place. He also stated that he is a tenant in one of the shop of accused Rajender Prakash. PW2 i.e the complainant admitted that a civil case has been filed by the accused against her and her husband, which indicates that complainant might be having an ulterior motive to harass the accused persons. Complainant also did not produce any rent receipt in the name of her husband, which could have shown that she was having lawful possession of the property in question on the day of alleged incident. Evidence of the complainant has not been supported by any other testimony of some other independent witness.
16. Before entering upon the final verdict, I would like to Page 9 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr refer to Kunji Lal AIR 1914 ALL 220 and Parmeshwar Lal Mitter AIR 1922 Patna 296, where it was observed that the possession emphasized in the offence of house trespass must be actual possession of some person other than the alleged trespasser. Possession means actual physical possession which includes the right to eject or exclude another person (Basanta Kumar AIR 1956 Calcutta 118), where the prosecution failed to prove the exclusive possession of the complainant, the accused was entitled to acquittal (State Vs. Daulat Singh 2001CrILJ, Rajasthan). It is true that the question of title is not be raised on a plea of possession as the offence is against possession and not against the ownership of the property but the complainant must show that he / she were in exclusive possession of the property. Where an owner enters into his own land permissibly used or occupied by someone else but not in the possession of another, he commits no offence (Gurdial Singh Vs. Abhey Dass AIR 1967 PUN 244).
17. We cannot also loose sight of the other primary ingredient required to constitute an offence of trespass that entering into or upon the property in possession of another must be with intent to commit an offence or to intimidate, insult or annoy the person in possession of the property and in Page 10 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr the present matter nothing of such like nature has been put forward by the prosecution against the accused persons. It must be proved that some criminal intent was in the mind of the accused and criminal trespass depends upon the intention of the offender and not upon the nature of the act.
18. The evidence of PW2 and PW3 clearly show that husband of the complainant was only a tenant in the shop of the accused and there is nothing on record to show that after the demise of her husband, complainant was enjoying peaceful possession of the shop with the consent of the accused persons. Moreover, as already discussed above, PW4 specifically denied about the happening of any incident as alleged in present FIR and according to him, husband of the complainant had vacated the shop, which put doubt in the story of the prosecution. Non-examination of the IO HC Tejpal Singh because of his severe ill health also proved fatal to the case of the prosecution.
19. After scanning the entire record and keeping in view the abovesaid discussions, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused for which they have been charged with, beyond reasonable doubt. Accordingly, the accused persons are Page 11 of 12 Contd/..... FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr acquitted of the said offence under Section 448/34 IPC.
20. Bail bonds of accused persons are extended in terms of Section 437 A Cr.P.C.
21. File be consigned to Record Room, after necessary compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court, Delhi Announced in open court on dated 1st November, 2012.
Page 12 of 12 Contd/..... FIR no. 354/00PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr FIR no. 354/00 PS Narela U/s. 448/34 IPC State Vs. Rajender Parkash & anr 01.11.12 Present : Ld. APP for the State.
Both accused on bail with Ld. counsel. Vide separate judgment dictated to the steno in the open court, accused persons are acquitted of the said offence U/s. 448/34 IPC.
At this stage, accused persons are directed to furnish fresh bail bond in the sum of Rs. 10,000/- in terms of Section 437 A of Cr.P.C .
At the request of accused persons, their previous bail bonds are extended in terms of Section 437 A Cr.P.C.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) MM (Outer)-01/Rohini 01.11.12 Page 13 of 12 Contd/.....