Delhi District Court
In Another Case Titled As Mousam Singh ... vs . State Of West on 18 September, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
Presided by: Sh. Deepak Vats
State v. Kiran Devi & Others
FIR No. 78/10
Police Station: Chhawla
Under Section: 447/34 IPC
Date of institution : 29.11.2010
Date of reserving : 23.09.2019
Date of pronouncement : 18.09.2019
JUDGMENT
a) Serial number of the case 428987/16
b) Date of commission of offence 07.03.2010
c) Name of the complainant Sh. Hari Ram
s/o Sh. Hukam Chand
R/o Village Tajpur Khurd, Na-
jafgarh, New Delhi.
d) Name, parentage and address 1.Kiran Devi
of the accused w/o Sh. Chander Dev.
r/o House no. B-47, Gali no.
1, West Vinod Nagar, PS
Mandawali, Fazal Pur, Delhi
2. Chander Dev
s/o Sh. Amar Singh
State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 1
House no. B-47, Gali no. 1,
West Vinod Nagar, PS Man-
dawali, Fazal Pur, Delhi
e) Offence complained of Section 447/34 I.P.C.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 18.09.2019
BRIEF REASONS FOR THE JUDGMENT
1. Facts germane to the prosecution case are that on 07.03.2010 both ac- cused persons in furtherance of their common intention tried to take forcible pos- session of a plot no. 7 situated in Khasra no. 18/3 Qutub Vihar, Phase II Goyla Dairy belonging to Hari Ram by raising a boundary wall of the plot over the plinth so constructed by the complainant and also constructed a room on the said plot. Thus, it is alleged that both accused persons committed offences u/s 447/34 IPC.
2. After investigation, chargesheet was filed. Copy supplied to the ac- cused persons. Charge was framed against both the accused Kiran Devi and Chander Dev for the offences under Section 447/34 IPC vide order dated 03.02.2011 to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution had examined seven witnesses. State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 2
4. PW-1 Sh. Hari Ram is the complainant, who alleged that on 04.04.2007 he purchased one plot measuring 100 sq. yds, plot no. 7 Khasra no. 18/3 Kutub Vihar Phase II, Goyala Dairy from one Manoj Kumar. He further alleged that on 07.03.2010 when he went to his above said plot he saw that accused Kiran Devi and her husband Chander Dev were constructing the wall on his plot and were also constructing a room on the back side of his plot. He further alleged that he told to the accused persons that he is the owner of the said plot and why they are raising construction his plot. Accused Chander Dev told to him that this plot be- longs to him. He called at 100 number and PCR from the PS Chhawala came at the spot. PW 1 showed the original papers in respect of his said plot to them. Ac- cused Chander Dev and Kiran failed to produce any documents regarding the own- ership/ possession of the said plot in their name. They requested to police officials to give sometime to them to show the documents of the said plot but later on also they failed to produce any such document to the police. It is further alleged that he made a complaint to the higher authorities including CBI regarding not lodging of his case by the police official of PS Chhawala and ultimately on 12.05.2010 police officials agreed to register the present case and recoded his statement in the PS vide Ex. PW 1/A. He also visited the spot with police officials. Police officials pre - pared the site plan of the plot and also took the photographs of his plot vide mark A and B. He handed over copies of the complete chain of documents related to the above said plot to the IO of this case vide Ex. PW 1/B1, B2 and B3. It is stated that the plot was in the name of Anand Singh in the year 2002 and he sold the same to State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 3 accused Kiran Devi. The document Ex. PW 1/B4 to B6 were exhibited to show that the said plot was sold by Kiran Devi to one Ajay Partap Singh on 7.11.2003. Fur- ther, the documents Ex. PW 1/B7 to B10 were exhibited to show that the said Ajay Pratap Singh had sold the said plot to one Sh. Manoj Kumar and documents Ex. PW 1/B11 to B 16 were the documents produced to show that Sh Manoj had sold the said plot to Sh. Hari Ram.
5. PW-4 Ct. Kuldeep proved the of notice u/s 91 Cr. PC vide Ex. PW4/A.
6. PW-5 SI Vikram Singh Rathi, who served the notice for producing the origi- nal documents of plot no. 7 Khasra no. 18/3 Qutub Vihar Phase II area measuring 100 yds vide Ex. PW 5/A
7. PW 6 HC Shri Krishan has proved the FIR and endorsement on rukka vide Ex. PW 6/A and Ex. PW 6/B.
8. PW 7 SI Sudesh Pal, is the IO of the present case. He deposed regarding the investigation conducted by him. He further deposed that after completion of inves- tigation he prepared charge sheet and filed the same before the court. State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 4
9. Statement of accused Kiran Devi and Chander Dev were recorded U/S 313 Cr.P.C wherein accused persons deposed that they are innocent and owner of the plot in question. The further deposed that they never handed over the physical possession of the property to Hari Ram. They further deposed that they borrowed Rs. 60,000/- from the Ajay Pratap Singh and paid interest for two years and three months. Thereafter Ajay Partap could not be traced out . They further deposed that said Ajay Partap including Manoj Uperti and Hari ram in collusion and connivance with each other sold the property to each other. They never sold their property in question to Ajay Pratp singh. They opted to lead defence evidence and the matter was posted for defence evidence.
10. In defence evidence DW 1 Sh Mohd Yaseen has deposed that accused Chander Dev is his colleague as they both worked in Vigyan Bhawan. He further deposed that in the year 2003, he used to reside in Nagli Dairy. At that time ac- cused Chander Dev asked some money from him on interest basis. Since he was not having the money to lend at that time, he introduced accused Chander Dev to one Sh. Ajay Pratap Singh who was a resident of their colony. He stated that Ajay Pratap Singh lent Rs. 60,000/- to accused persons and in lieu of the same, the ac- cused persons executed mortgaged documents in favour of Ajay Pratap Singh re- garding plot in question.
State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 5
11. I have given my considerable thoughts to the submissions tendered by Dr. Yadvender Singh, learned Assistant Public Prosecutor for the State and Sh. Pujya Kumar Singh, Ld. Counsel and perused the record carefully.
12. Ld. APP for the State submits that prosecution has proved its case against the accused beyond reasonable doubt. Prosecution has proved the factum of occurrence of incident at the relevant date, time and place. He submits that the prosecution has proved the role of the accused persons and their presence at the spot. He submits that there is no doubt regarding the identity of accused persons.
13. Ld. counsel for the accused has submitted that accused is innocent and has been falsely implicated in this matter and there are several in- consistences/lacunae /contradictions in the prosecution story. He submits that prosecution has failed to prove the occurrence of incident at the relevant date, time and place. Therefore, prosecution has not been able to prove its case against the accused persons beyond reasonable doubt and hence, there is a reasonable doubt in the prosecution story and benefit of which must goes in favour of the accused persons. He submits that accused persons be acquitted from the case.
14. I have carefully perused the material on record and heard the submissions of the Ld. Counsels.
State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 6
15. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
16. Reverting back to the present case, it is first of all necessary to quote Section 441 and 447 IPC, before deciding to appreciate the evidence and to decide whether the prosecution has proved the guilt of the accused persons beyond reasonable doubt. Section 441/447 IPC are as follows :-
State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 7 Section 441 IPC 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"
Section 447 IPC Punishment for Criminal Trespass :- Whoever commits criminal trespass shall be punished with imprisonment of either description for a terms which may extend to three months, with fine or which may extend to Rs. 500/- or with both.
17. Thus, in order to prove that the accused persons have committed criminal trespass within the meaning of Section 441 IPC, the prosecution must prove the following ingredients :-
a.) The property was in the possession of the complainant. b.) Accused persons entered upon the same unlawfully or having entered law fully remained there unlawfully.
c.) With the intent to commit an offence or intent or to intimidate, insult or annoy the complainant.
18. In the present case, it is not in dispute that accused persons entered State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 8 into the case property i.e. plot bearing no. 7 Situated in Khasra no. 18/3, Qutub Vihar, Phase II, goyala Diary. Thus, the court needs to inquire the other two ingredients, i.e. whether the property was in possession of the complainant and second thing whether the accused persons entered into the property with intention as provided above.
19. It is necessary to discuss here the version given by the prosecution and the defence to understand the controversy. As per the prosecution, the accused no. 1 Kiran Devi was the original owner of the above mentioned plot and she mortgaged the same to PW 3 Ajay Pratap Singh for a sum of Rs. 60,000/- on 07.11.2003. Thereafter, PW 3 Ajay Pratap Singh made the payment of another Rs. 20,000/- and bought the same from the accused no. 1 through transfer document namely GPA, Agreement to Sell and receipt etc. Thereafter, PW 3 sold the said plot to PW 2 Sh. Manoj Kumar Upreti through transferred document i.e. GPA, Agreement to Sell and Receipt etc., who eventually sold it the complainant vide similar documents and thus is claimed that the complainant was the owner of the said plot of the land and the accused persons trespassed over the same.
20. As per the defence, the accused no.1 was the owner of the plot in question, who mortgaged the same to PW 3 Sh. Ajay Pratap Singh, who got certain papers from the accused no. 1 signed. It is submitted by Ld. Counsel for accused persons that PW 3 in collusion with complainant and PW 2 Manoj Kumar forged State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 9 documents and illegally transferred the property in their name. It is alleged that accused persons never transferred the plot of land to the complainant and thus the accused no. 1 was the owner of the case property and in that capacity only she was in possession of the same.
21. In this factual background, as stated above, the court has to see whether the ingredients (a) and ( c) as aforesaid are proved by the prosecution. Both these ingredients are discussed in detail herein below. POSSESSION OF THE COMPLAINANT.
22. In the present case the only document showing that the complainant Hari Ram was in possession of the plot in question is possession letter Ex. PW 1/B15 (Page no. 125 of the judicial file), no other documents showing the complainant to be in possession has been placed on record by the prosecution. Perusal of the documents Ex. PW 1/B15 shows that there was one witness to the said documents. The name and other description of the witness is not mentioned in the said document Ex. PW 1/B15. The said witness has not been examined by the prosecution. Moreover, the document appears to be attested by the Notary Public, however he has also not been made witness by the prosecution. Furthermore, PW 1/ complainant has admitted in his cross-examination that he has no other documents showing that he was in the possession of the plot in question at the State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 10 time of allged incident.
23. Merely on the basis of Ex. PW 1/B15, the witness to which has not been examined as discussed above, the court is of the opinion that prosecution has not sufficiently proved that the complainant was in possession of the plot in question at the time of alleged incident.
24. Further the testimony of PW 1, PW 2 and PW 3 have many contradictions and their statements have not been corroborated with the documents filed by the prosecution, which suggests that they are not reliable witnesses. The most important testimony is that of PW 3 Sh. Ajay Pratap Singh, who allegedly purchased the plot in question from the accused no.1 vide GPA, Agreement to Sell and Receipt etc. He stated in his cross-examination that he met the accused Kiran Devi on 07.11.2003 and purchased the property on that very day for a sum of Rs. 60,000/-. He denied the suggestion that the accused mortgaged the property to him. However, Ex. PW 3/D1, i.e. the statement of PW 3 to police under section 161 Cr. PC dated 06.06.2010 shows that it was stated by the PW 3 that accused Kiran Devi mortgaged the plot in question to him for a sum of Rs. 60,000 and PW 3 subsequently bought the same from PW 1 on paying additional amount of Rs. 20,000/-. Thus, the statement of PW 3 that he purchased the property for Rs. 60,000/- is clearly contrary to his statement PW3/D1, under Section 161 Cr Pc. He was confronted with the statement Ex. PW 1/3D1 in his cross examination, but no State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 11 plausible explanation was given by him for making the said statement before police, further, as stated above in statement Ex. PW 3/D1 he stated that he bought the property for a sum of Rs. 80,000/- (Rs. 60,000/- plus Rs. 20,000/-) in his deposition before the court , he stated that he bought the plot in question for a sum of Rs. 60,000/- and as per the document Ex. PW 3/A i.e. receipt purportedly issued by the accused no.1 in favour of the PW 3, the plot in question was sold for a sum of Rs. 51,000/- in the full and final settlement. Thus there are different versions regarding the alleged transaction between PW 3 and accused Kiran Devi and this clearly shows that the testimony of PW 3 is not reliable and PW 3 is not worthy of credit.
25. Similarly, PW2 Sh. Manoj Kumar Uperti stated in his cross examination that he has purchased the plot in question from the PW 3 for a sum of Rs. 2, 10,000/- however, as per the document i.e receipt Ex PW1/B9, PW 2 purchased the property for a sum of Rs. 55,000/- as full and final settlement. Further, he stated that he sold the plot in question to the complainant for a sum of Rs. 3 lacs. Complainant/ PW 1 stated that he purchased the plot from the PW 2 for a sum of Rs. 4 lacs and receipt Ex. PW 1/B 14 shows that plot in question was purportedly sold by PW 2 to PW 1/ complainant for a sum of Rs. 1 lac. This again shows that the amount mentioned by the PW 2 before the court and as mentioned in the documents are completely different and thus PW 2 is also not a reliable witness. State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 12
26. Similarly, PW 1 stated that he bought the plot in question from the PW 2 from a sum of Rs. 4 lacs, however, receipt Ex. PW 1/B14 shows that Rs. One lac was paid as full and final settlement qua the alleged transaction of the transfer of property between PW 1 and PW 2. Further, PW 1 in his cross examination stated that he made seven installments total amounting to Rs. 4 lacs to the PW 2, however no proof of payment has been filed. This shows that PW 1 is also not worthy of credit and is not a reliable witness.
27. The above discussion, makes amply clear that the prosecution witnesses including the complainant are not reliable and that the prosecution has failed to show even remotely that complainant was in possession of the plot in question at the time of alleged incident.
INTENTION
28. The prosecution was also required to prove that the accused persons entered into the plot in question with intention within the meaning of Section 441 IPC i.e. with intent to intimidate, insult or annoy the complainant. It is settled law that mere having the knowledge that the accused may commit the offence or intimidate, insult or annoy any person, while committing trespass shall not be sufficient so far as the criminal trespass is concerned. The prosecution must prove with cogent evidence that accused persons entered the property in question with State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 13 intention and not mere knowledge. The case of the prosecution as per the Asal Tehrir of the complainant Ex. PW 1/A shows that there was rival claims of the complainant and accused persons for ownership of the property in question and both the parties claimed to be owner of the same. Thus, the prosecution case itself shows that there was dispute regarding ownership of the said plot and in the opinion this court this question as to who is the owner of the said plot falls within the domain of Civil Law and thus, the alleged act of the accused persons cannot be termed as criminal wrong because a person being in possession of the property claiming himself to be owner cannot be stated to commit criminal trespass within the meaning of Section 441 IPC where nothing else is available to show his intention. Thus in the present case the ingredient (c) has also not been proved by the prosecution.
29. In view of the aforesaid, the prosecution has failed to prove its case beyond the reasonable doubts. Accordingly, accused Kiran Devi and Chander Dev stands acquitted for the offence punishable under Section 447/34 IPC.
30. Documents, if any be released to the rightful persons. Bail bonds stands discharged. Endorsement if any be cancelled.
31. File be consigned to record room.
Announced in open Court on 18.09.2019. DEEPAK Digitally signed by
DEEPAK VATS
VATS Date: 2019.09.19 16:47:11
+0530
(Deepak Vats)
Metropolitan Magistrate-05 (South-West)-
18.09.2019.
State v. Kiran Devi & Others FIR No. 78/10 PS: Bindapur 14