Delhi District Court
State vs . Bhagwan Dass on 7 June, 2022
IN THE COURT OF MS. RENU CHAUDHARY
METROPOLITAN MAGISTRATE04, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
FIR No.174/05
PS Shakarpur
State Vs. Bhagwan Dass
CNR No. DLET020003282005
(a) Sr. No. of the case 8715/2016
(b) Date of offence On or before 23.09.2004
(c) Complainant Ram Avtar Singh
(d) Accused, parentage and 1. Bhagwan Dass S/o Sh. Prabhati
address Ram
2. Yadav Krishan S/o Sh. Prabhati
Ram
Both R/o H. No. S-657-A, School
Block, Shakarpur, Delhi.
(e) Offence complained of Section 453/34 IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 22.07.2005
(i) Date when judgment was 31.05.2022
reserved
(j) Date of judgment 07.06.2022
FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.1 of 11
JUDGMENT
1. Present chargesheet has been forwarded by the SHO, PS Shakarpur against the accused persons to face trial for the offences under Section 453/34 IPC.
2. In nutshell, the case of the prosecution is that a complaint was made by the complainant Ram Avtar stating that he had purchased property bearing No. H657A, School Block, Shakarpur, Delhi consisting of five rooms and three kitchens at ground floor & five rooms and kitchen at first floor from one Prabhati Lal. It is further stated that the possession of the entire property was given to the complainant except two rooms and two kitchens situated at ground floor wherein two sons of Prabhati Lal resided with their respective families & denied to vacate the same and the accused persons have taken the possession of the said property illegally by breaking open the rooms therein.
3. Consequently, the case was registered and the final report was filed after completion of investigation for offences under Sections 453/34 IPC against accused Bhagwan Dass as well as Yadav Krishan & subsequently, the cognizance was taken by Ld. Predecessor v.o.d. 22.07.2005.
4. After taking cognizance, accused persons were summoned. On appearance of accused persons, copy of the chargesheet as well as documents annexed therewith were supplied to them in compliance of FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.2 of 11 Section 207 Cr.P.C & the case was listed for arguments on charge.
5. After hearing the parties, charge for the offences U/Sec.453/34 IPC was framed against both accused persons v.o.d. 30.08.2006. It is noteworthy that the said order was challenged by the accused persons but their revision petition was dismissed v.o.d. 03.04.2007 by the Court of Ld. ASJ with directions to serve the notice upon the accused persons instead of framing charges. Upon the said directions, a notice was served upon the accused persons for the offence U/Sec. 453/34 IPC v.o.d. 17.04.2017 to which they pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, examined as many as 05 witnesses which are as under:
PW1 ASI Urmila, Duty Officer
PW2 HC Shiv Kumar, Investigating witness
PW3 Retd. SI Noor Mohammad, Investigating Officer
PW4 Ram Avtar, the complainant
PW5 Gopal Dutt, Summoned witness
7. ASI Urmila appeared in the witness box as PW1 who proved FIR No.174/05 vide Ex.PW1/A and endorsement on rukka vide Ex.PW1/B. Witness was not crossexamined on behalf of the accused.
8. HC Shiv Kumar appeared in the witness box as PW2 & deposed that on 14.03.05, he joined the investigation with IO/SI Noor Mohammad & reached at House No. S657/A, School Block, Shakarpur where the accused persons were arrested vide arrest memo Ex. PW2/A FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.3 of 11 and Ex. PW2/B respectively, the personal search of the accused persons was conducted vide Ex. PW2/C and Ex. PW2/D respectively after which both accused persons were medically examined. PW2 correctly identified the accused persons present in the Court. PW2 was not cross examined on behalf of accused persons despite opportunity.
9. Thereafter, Retd. SI Noor Mohammad appeared in the witness box as PW3 & deposed that on 23.09.04, after receiving a complaint, he recorded the statement of the complainant vide Ex. PW 3/A, prepared rukka vide Ex. PW3/B and sent the same for registration of FIR. After registration of FIR, IO took photographs of the spot vide Mark XA (colly), prepared site plan at the instance of complainant vide Ex. PW3/C and also recorded supplementary statement of the complainant. PW3 further deposed that on 14.03.05, he alongwith Ct. Shiv Kumar went to H. No. S657/A, School Block, Shakarpur, Delhi where accused persons namely, Bhagwan Dass and Yadav Krishan were arrested vide Ex. PW2/A & PW2/B respectively, their personal search was conducted vide Ex. PW2/C & PW2/D respectively and they were sent to LBS hospital through Ct. Shiv Kumar for medical examination. PW3 correctly identified the accused persons present in the Court. PW3 further deposed that inquiry was made from one Prabhati Ram & his statement was recorded accordingly. Thereafter, chargesheet was filed after completion of investigation. PW3 was not crossexamined by the accused persons despite opportunity.
FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.4 of 11
10. Thereafter, the complainant Ram Avtar appeared in the witness box as PW4 & deposed that he had purchased property bearing No. H657A, School Block, Shakarpur, Delhi consisting five rooms & three kitchens at ground floor and five rooms & one kitchen at first floor with roof right from one Prabhati Lal in the year 1993 for a consideration amount of Rs.8 lakhs. It is further deposed that accused persons who are the sons of Prabhati Lal were already in possession of the two rooms at ground floor & in furtherance of their common intention, they illegally broke open the locks of the other rooms belonging to the complainant and possessed the said property illegally. PW4 brought the record/documents pertaining to said property vide Ex.PW4/A1 and correctly identified the spot in the photographs vide Ex.P1 to P4. PW4 further deposed that he had filed the civil suit against accused persons for getting the possession of said premises & after obtaining a decree from the Court when the complainant reached to take the possession thereof, the accused persons were found possessing the same illegally. PW4 proved on record certified copy of judgment in RCA No.06/2003 & 32/2002 as PW4/B. Thereafter, complaint was made to the police & accused persons namely, Bhagwan Dass and Yadav Krishan were arrested vide Ex. PW2/A & PW2/B respectively & their personal search was conducted vide Ex. PW 2/C & PW2/D. PW4 was crossexamined by Ld. Defence Counsel at length wherein he deposed that Ex.PW4/B was passed against accused Bhagwan Dass & not Yadav Krishan & that the present case was filed in connivance with the police officials to get the possession of the property in dispute.
FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.5 of 11
11. Sh. Gopal Dutt, Record keeper was examined as PW4 who produced the record pertaing to the property in dispute as Ex.PW5/A.
12. It is pertinent to mention that PW4 was recalled for examination U/Sec.311 Cr.P.C but after partial examination of the witness U/Sec. 311 Cr.P.C, he expired & hence, his examination U/Sec. 311 Cr.P.C could not be concluded.
13. After the completion of PE, Statement of Accused persons U/Sec.313 Cr.P.C r/w Section 281 Cr.P.C was recorded v.o.d 14.09.2018 & 29.03.2022 wherein accused (s) denied all the incriminating circumstances appearing in evidence against them. They further denied the allegations so levelled against them by the complainant/prosecution. Accused persons wished to lead defence evidence and hence, the case was listed for DE.
14. During defence evidence, both accused persons were examined as DW1 & DW2 respectively wherein they deposed that property in question was never sold to any person namely Ram Avtar & a civil suit filed by Ram Avtar was dismissed vide Ex.DW1/1. It is further deposed that the accused persons are the rightful owner of the property in question & have been falsely implicated in the present case.
15. After closing Defence Evidence, the matter was listed for final arguments.
FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.6 of 11
16. It was argued by the Ld. APP for the State that prosecution witnesses have successfully proved the factum of commission of offence by the accused, beyond reasonable doubt. He further stated that all the witnesses have supported the case of the prosecution and hence, the accused is liable to be convicted and punished as per law.
17. On the other hand, Ld. Counsel for the accused (s) argued that the accused persons were falsely implicated in the present case as there are several discrepanciesand material contradictions in the deposition of the prosecution witnesses which create grave suspicion about the prosecution's case.
18. I have heard the arguments advanced by both the parties & gone through the case file carefully & throughly. I have considered the testimony of witnesses & perused the oral as well as documentary evidence available on record.
19. It is a well settled legal principle that the prosecution has to prove its case beyond all reasonable doubts & has to stand upon its own legs. The prosecution cannot draw any strength from the case of the accused howsoever weak it may be. It is also a well settled principle of law that the burden of proof in a criminal trial always rests upon the prosecution & the same never shifts on the accused.
20. As per Section 453 IPC, whoever commits lurking house trespass or housebreaking, shall be punished with imprisonment of either FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.7 of 11 description for a term which may extend to two years, and shall also be liable to fine. Lurking house trespass has been defined U/Sec.443 IPC as housetrespass committed with precautions to conceal such trespass from a person who has the right to eject the trespasser from the premises or house in question.
21. It has been alleged against the accused persons that they, in furtherance of their common intention have committed the offence of lurking house trespass and housebreaking which is punishable under section 453 of IPC. The offence of house trespass is defined under section 442 IPC which reads as follows:
House trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "housetrespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass.
Criminal trespass is defined under section 441 IPC which reads as follows:
Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
The offence of housebreaking is defined under section 445 IPC which runs as follows:
House breaking.--A person is said to commit "housebreaking" who FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.8 of 11 commits housetrespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say--
(First) --If he enters or quits through a passage by himself, or by any abettor of the housetrespass, in order to the committing of the house trespass.
(Secondly) --If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
(Thirdly) --If he enters or quits through any passage which he or any abettor of the housetrespass has opened, in order to the committing of the housetrespass by any means by which that passage was not intended by the occupier of the house to be opened.
(Fourthly) --If he enters or quits by opening any lock in order to the committing of the housetrespass, or in order to the quitting of the house after a housetrespass.
(Fifthly) --If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. (Sixthly) --If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the housetrespass. Explanation.--Any outhouse or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.
22. In order to get the accused (s) convicted for the offence of house trespass and housebreaking, it was imperative for the prosecution to establish that the accused (s) were not entitled to enter the said property. It was also required to be proved that the property was in the possession of the complainant. The accused (s) claimed ownership and possession of FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.9 of 11 the property stating that they are the rightful owner therein. The complainant on the other hand claims possession and ownership of the property on the basis of the documents Ex.PW5/A (Ex.PW4/A1) stating that GPA as well as will pertaining to the property in question were executed by Sh. Prabhati Lal who is the father of the accused persons in favour of the complainant in 1995. It was stated by the complainant during his examination that the said original documents dated 01.11.1995 i.e. GPA as well as the will executed by Prabhati Lal have been lost & could not be traced out. Sh. Prabhati Lal has not been examined by the prosecution so that the authenticity and the veracity of the above mentioned claims could be ascertained. Moreover it was stated by PW3 during his deposition that statement of Prabhati Lal was recorded during investigation, however, the said statement was not made part of the chargesheet for the reasons best known to the IO & casts a doubt over the veracity of the prosecution's case.
23. In the event of the failure of the prosecution to examine Sh. Prabhati Lal, it was necessary that the factum of the complainant obtaining the possession of the property was proved by other means including the testimony of some independent public witnesses who could have supported the case of the prosecution to the effect that they had seen the complainant ever in the possession of the property. But no such witness was examined by the prosecution. Further, the evidence led on behalf of the prosecution is silent about the date and time on which the accused persons have allegedly trespassed into the property in question. No document pertaining to the ownership of the property in dispute were FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.10 of 11 seized during investigation. The complainant had stated that after purchasing the property and getting its physical possession he had put the locks on it and the same were broken by the accused (s). During the evidence no such lock or even the key to it which the complainant was possessing have been produced before the court. In such circumstances, in view of the court, the prosecution has failed to prove that the property in question on the date of the alleged commission of the offence was in the possession of the complainant. Therefore the accused cannot be convicted for the offences punishable under section 453/34 IPC.
24. As a consequence to the above said discussion, the court is of a conclusion that the prosecution has failed to prove the case beyond reasonable doubt against the accused persons. Hence, accused Bhagwan Dass & Yadav Krishan stand acquitted of the offences punishable under section 453/34 IPC.
25. At request, bail bond of said accused persons are extended for a period of six months as per Section 437A Cr.P.C.
File be consigned to record room, after due compliance.
Digitally signed by Renu Renu Chaudhary
Chaudhary Date: 2022.06.07
16:27:28 +0530
Pronounced in the open court ( RENU CHAUDHARY)
on 07th Day of June 2022 MM04/East/KKD/Delhi
It is certified that this judgment contains 11 pages & each page is checked & signed by me. Renu Digitally signed by Renu Chaudhary Chaudhary Date: 2022.06.07 16:27:36 +0530 ( RENU CHAUDHARY) MM04/East/KKD/Delhi 07.06.2022 FIR No.174/2005 State Vs. Bhagwan Das Etc Page No.11 of 11