Delhi District Court
State vs . Priya Brath Patra on 14 March, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-04, DISTRICT
SOUTH EAST, SAKET COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Priya Brath Patra
FIR No. 486/12
PS. Govind Puri
U/s. 447 IPC
JUDGMENT
1) SI No. of the case : 624059/16
2) The date of commission of offence : 20.09.2012
3) The name of the complainant : Conservation Assistant
Sh. Bahadur Chand,
Archaeological Survey
of India, Tughlakabad
Fort, New Delhi.
4) The name & parentage of accused : Priyabrat Patra @ Tikku
S/o Dinbandhu Patra,
R/o H.No.450/17, Gali
No.3, Chhuria Mohalla
Tughlakabad Village,
New Delhi
5) Offence involved : Section 19/30/32 of
Ancient Monuments and
Archaeological Sites
and Remains Act,
1958,Section 188 of
Indian Penal Code &
447 of Indian Penal
Code.
6) The plea of accused : Pleaded not guilty
FIR No. 486/12 State Vs Priyabrat Patra 1
7) Final order : Acquitted.
8) The date of such order : 14.03.2022
Date of Institution : 13.12.2012
Judgment reserved on : 10.03.2022
Judgment announced on : 14.03.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The instant FIR No. 486/12, PS Govind Puri was registered on the basis of the statement dated 20.09.2012, Ex.PW1/A of the complainant Sh. Bahadur Chand, Conservation Assistant, Archaeological Survey India, Tughlakabad Fort, New Delhi alleging that on 20.09.2012 Security Guard Sh. Rajender gave him written report that accused Priyabrat Patra was found carrying the unauthorized/illegal construction at H.No. 450/3 Street No.4, Chhuriya Mohalla, Behgoli Colony, Tughlakabad, New Delhi i.e. in the prohibited area of Tughlakabad Fort which falls within the area of a centrally protected monument. The accused also failed to stop the said illegal/unauthorized construction and also failed to demolish the same. That any such construction was also prohibited vide letter no.662841 dated 06.03.2003 of the Hon'ble Supreme Court of India. The FIR was registered for the offence punishable u/s 19/30/32 Ancient Monuments and Archaeological Sites and Remains Act, 1958,Section 188 of Indian Penal Code & Section 447 of Indian Penal Code (IPC).
2. Upon completion of the investigation the charge-sheet was filed by the investigating officer against the accused. Charge of the offences punishable FIR No. 486/12 State Vs Priyabrat Patra 2 under section 19/30/32AM & ASR Act,Section 188 IPC & 447 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the allegations against the accused, the prosecution has examined eight witnesses.
4. PW1 Sh. Bahadur Chand is the complainant. He deposed that he was posted as Conservation Assistant at Archaeological Survey India from 2002 to 2013. He deposed that on 20.09.2012, Rajender Kumar, Monument Attendant gave him information regarding unauthorized encroachment on the land of Archaeological Survey of India, Chhuriya Mohalla, Village Tughlakabad. Thereafter he went to the spot with Rajender Kumar where accused Priyabrat was constructing House on the area of 50 sq. yard approximately. He deposed that he gave complaint Ex.PW1/A to the police. Police officials visited the spot and prepared the site plan. That the total area of Tughlakabad Fort was 2667 bigha which includes 116 bigha lal dora. Some of the area was encroached and some was open. That in the year 1995 the land of Tughlakabad Fort was transferred to Archaeological Survey of India from DDA and MCD. He identified two photographs Ex.P-1 (colly). Accused was also correctly identified by the witness in the court.
5. PW-2 Sh. Rajender Kumar, Monument Attendant, Archaeological Survey of India (ASI) Tughlakabad Fort, New Delhi deposed that on 20.09.2012 his duty hours were from 9.00 AM to 5.00 PM. On that day his duty was in the area of Tughlakabad Fort. That one Priya Madam was raising some construction illegally. Thereafter he complained to Sh. Bahadur Singh, Conservation Assistant, Archaeological Survey Of India. The witness correctly FIR No. 486/12 State Vs Priyabrat Patra 3 identified the two photographs Ex.P1 (colly) of the alleged illegal construction. This witness, however, failed to identify the accused in the court despite the Ld. APP pointing to him, the accused. He deposed that at the time of unauthorized construction he had seen one lady Priya.
6. PW3 is Ct Mahipal. He deposed that on 22.09.2012 he alongwith HC Devender went to H.No.450, Gali No.4, Chhuriya Mohalla, Tughlakabad Village, New Delhi where IO arrested accused Priyabrath Patra and conducted his personal search vide memos Ex.PW3/A and Ex.PW3/B respectively. Accused was correctly identified by the witness.
7. PW4 is ASI Yad Ram. He deposed that he was working as duty officer on 22.09.2012. On that day at about 7.05 PM SI Kulbeer came to him with rukka and he recorded the DD No.26A and made endorsement on the same Ex.PW4/A. Thereafter he registered the FIR Ex.PW4/B. After registration of FIR he handed over the original rukka and copy of FIR to HC Devinder for further investigation.
8. PW5 is Surender Singh Rana. He is IDC from Archaeological Survey of India. He brought the document F.No.DC/459/2013-M-(U/C dt.18.12.2013). He deposed that regarding the said letter Ex.PW5/A some information and documents were handed over to the police. He also brought the original noting Ex.PW5/B of his office. He also deposed that a location plan/site plan of the property in question was handed over to the police vide above mentioned letter Ex.PW5/C. The other documents regarding the land of Archaeological Survey of India Ex.PW5/D (running into 16 pages) were handed over to the police.
FIR No. 486/12 State Vs Priyabrat Patra 49. PW6 ASI Devender Singh deposed that on 22.09.2012 the investigation of the case was marked to him and he alongwith Ct. Mahipal went to the place of incident i.e. House NO. 450, Gali No.4, Chhuriya Mohalla, New Delhi where he met Bahadur Chand and Rajender, the officials of the ASI. Thereafter he prepared the site plan Ex.PW6/A. Officials of ASI showed him the entire place of incident and after interrogation of accused he arrested the accused and conducted his personal search vide the memos Ex.PW3/A and Ex.PW3/B respectively. Thereafter photographs of the spot were taken. He recorded the statement of witnesses U/s. 161 CrPC. During investigation he collected documents from the office of ASI. He gave notice U/s. 91 CrPC to the Archaeological department and received documents Ex.PW6/B (colly) (running into 16 pages). He completed the investigation, prepared the chargesheet and filed the same before the court. He correctly identified the accused in the court. He also identified the place of the incident from the two photographs Ex.P1 (colly).
10. PW7 is Retired SI Desh Raj. He deposed that on 02.04.2013 he conducted further investigation of this case during which he corresponded with ASI and other agencies for demarcation of the property in question. Process of demarcation was carried out by M/s. Dhyani Consultants. Report/plan was obtained from them in which the property in question was cited in Khasra No.649 mentioned at point 26. After obtaining the same he prepared the supplementary chargesheet and filed the same before the court.
11. PW-8 is Puranchandra Dhyani, Survey Consultant & Proprietor of M/S Dhyani Consultants INC. He deposed that he was a Civil Engineer and FIR No. 486/12 State Vs Priyabrat Patra 5 working as the land surveyor and as an expert of the land demarcation since the year 1991. He identified the original report/plan prepared by him regarding the Tughlakabad Fort. He deposed that he had mentioned the land/property in question in Khasra No.649 at Sl. No.26 in the plan Ex.PW8/A.
12. Prosecution witnesses were cross examined by Ld. Defence counsel for accused.
13. Upon completion of the prosecution evidence statements of the accused under section 313 of Cr.PC was recorded and the evidence surfaced against him during the trial was put to him. The accused pleaded innocence and stated that he had not done any construction work on the day of incident. That he had been falsely implicated in the present case by the police.
14. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.
15. It has been argued by the Ld. APP that the accused deserves to be convicted as he had been shown to have encroached upon the land belonging to the Tughlaqabad Fort which is a Protected Area as per the Ancient monuments and Archaeological Sites and Remains Act, 1958. It is submitted that the prosecution has been successful to show that the accused has raised construction within the premises of the said monument despite the notification of the Central Government and the order of the Hon'ble Supreme Court of India and therefore he has committed the offences punishable under Section 19 read with Section 30 and 32 of the said Act. That the accused is also liable to be convicted for the offences punishable under section 188 and section 447 IPC for the above FIR No. 486/12 State Vs Priyabrat Patra 6 mentioned actions. It is prayed that the accused be convicted.
16. On the other hand, the learned defence counsel has prayed for the acquittal of the accused stating that the prosecution has failed miserably to prove its case against the accused. It is stated that no witness of the prosecution has deposed that he had seen the accused committing the alleged offences. It is further argued that no material has been produced by the prosecution that the accused had been the person in occupation/possession of the portion of the property in question. That it has also not been shown by the prosecution that the accused has been engaged in raising any construction over the said property.
17. I have heard the respective arguments and have gone through the record.
18. It has been alleged against the accused that on 20.09.2012 at House No. 450/2, Street No.4, Chhuria Mohalla, Bengali Colony, Tughlaqabad village, New Delhi he was found carrying unauthorized/illegal constructions in the prohibited area of Tughlaqabad Fort which falls within the area of a centrally protected monuments and he failed to stop the said construction and to demolish the construction which he already had raised. That therefore, the accused has committed the offences punishable under section 19/30/32 of the AM & ASR act. It is alleged that the accused had failed to comply with the order issued by the Central Government vide notification No.4190 dated 28.06.1921 with the order of the Hon'ble Supreme Court of India passed in the petition titled S.N Bhardwaj Vs. Archaeological Survey of India and Ors passed on 06.03.2003 and thereby he had committed the offence punishable under section 188 of IPC. It is also alleged that the accused has committed the offence of FIR No. 486/12 State Vs Priyabrat Patra 7 criminal trespass by entering the above said land with intent to commit an offence and therefore he has also committed the offence punishable under section 447 of IPC.
19. In the instant case, no documentary material has been produced by the prosecution to show that the premises in question and the construction raised on the same belonged to the accused. In such circumstances, the court has to rely on the testimony of the witnesses of the prosecution in order to decide the guilt of the accused.
20. The complainant Mr. Bahadur Chand who has deposed as the witness PW1 has stated that on 20.09.2012 on receiving information from Mr. Rajender Kumar, he reached the Chhuria Mohalla and found the accused raising construction in an area of about 50 sq. yards upon which he made the complaint Ex.PW1/A. In his cross examination, he has stated that on the day of incident the land of the fort was not demarcated. He stated that he saw 4-5 workers at the spot. In response to a specific question he could not tell the specific part of the building where the construction was being carried out. He could not tell when the construction was raised for the first time.
21. PW2 Mr. Rajender Kumar not even failed to identify the accused in the court but he has stated that on the day of the incident he saw a female namely Priya raising the construction. He denied that the accused was raising the construction at that time. He also could not tell the exact specifications of the construction being carried out.
22. PW3 Ct. Mahipal could not tell the number of floors the house of the FIR No. 486/12 State Vs Priyabrat Patra 8 accused had when he visited it with HC Devender. He denied seen any worker at the spot. He stated that when he visited the spot no construction activity was going on. He could not tell the specifics of the construction allegedly being carried out by the accused.
23. PW6 ASI Devender Singh in his cross examination stated that when he visited the spot he did not find any worker indulged in construction activities nor did he find any building material outside the house of the accused. He also could not tell the number of floors of the house of the accused.
24. The evidence led by the prosecution in the form of the testimony of the above mentioned witnesses clearly shows that the allegation of illegal construction being raised by the accused on the day of the incident has not been established. No witness of the prosecution has described the actual construction which the accused was carrying out. PW6 has stated that the house of the accused had an electricity connection. Therefore, it is safe to assume that the accused had been residing in the said property much prior to the date of the incident.
25. For the reasons recondite, the prosecution has failed to explain as to why the police officials or the officials of the ASI did not record the particulars and statements of the workers who were raising the construction at the behest of the accused, as alleged. The workers would have been in a better position, in the event of unavailability of any documentary material, to state that they were raising the construction at the behest of the accused. No construction material/equipments has been seized from the site of the offence. Further more, the prosecution has not examined any person from the vicinity in support of the FIR No. 486/12 State Vs Priyabrat Patra 9 fact that it was the accused who was raising the said construction.
26. It is the case of the prosecution that the construction was being raised on 20.09.2012. The prosecution has placed reliance on the photographs exhibit P-1 in support of the said allegation. A perusal of the photographs would show that the construction alleged to be illegal is not recent. In any case, it cannot be said to be of the same day or of the day before. This further creates a doubt about the case of the prosecution.
27. In order to fasten the criminal liability to the accused, it is imperative for the prosecution to establish a water tight case. As observed above, the prosecution has not only failed to connect the accused with the property in question, it has also remained unsuccessful in establishing the alleged construction which the accused was raising. The witnesses have not deposed anything about the date on which the construction shown in the photographs Ex.P1 was raised by the accused. No evidence in the form of the expert opinion of civil engineer etc. after collecting the sample of the property of accused or after its inspection by such expert has been produced. Therefore, the argument of the Ld. Defence counsel that the accused has been residing in the property in question for several years prior to the year 1993 cannot be ruled out altogether. The case of the prosecution has remained shrouded in ambiguity and lacked clarity and certainty as to the time of raising the alleged construction and the extent to which it has been raised. The material led by the prosecution is not sufficient to give a finding of guilt.
28. In view of the above mentioned discussion, the court is of the opinion that the prosecution has failed to connect the accused with the alleged FIR No. 486/12 State Vs Priyabrat Patra 10 construction beyond a reasonable doubt and therefore there is insufficient ground to convict the accused for the offences under section 19/30/32AM & ASR Act,Section 188 IPC & 447 IPC. The accused Priyabrat Patra accordingly stands acquitted of the above mentioned offences for which he has been charged in the present case.
29. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 14th day of March 2022 MM-4/South East/Saket Courts
Delhi
FIR No. 486/12 State Vs Priyabrat Patra 11