Delhi District Court
State vs . Harsharan Singh Etc. on 21 March, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. HARSHARAN SINGH ETC.
FIR No. 422/1996
PS: MOTI NAGAR
U/S: 380/448/506-II/34 IPC
JUDGMENT
Sr. no. of the case : 656/2/10
Unique Case ID no. : 02401R0495562002
Date of commission of offence : 24.07.1996 & 25.07.1996
Date of institution of the case : 04.10.1996
Name of the complainant : Sh. Ravi Dutt Sharma
Name of accused and address : 1). Harsharan Singh
S/o Lt. Sh.Mahinder Singh
R/o 69/1, Furniture Block,
Kirti Nagar, Delhi.
2). Babu Lal (since PO)
3). Mohd. Ahmed (since expired)
Offence complained of or proved : 380/448/506-II/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted U/s 380 IPC &
convicted U/s 448/506-II
Date on which reserved for judgment : 07.03.2015
Date of judgment : 21.03.2015
******************************************************************************************************************************* THE FACTS :
1. As per the prosecution, 24.07.1996 at about 03:00 PM and again on 25.07.1996 at about 07:30 PM, accused Harsharan Singh alongwith his accomplices in furtherance of their common intention committed house trespass by entering illegally on a plot no.B/5 Raja Garden, which was in possession of the complainant Ravi Dutt Sharma. Accused persons had threatened to kill the complainant and his family members. It is also alleged that the accused persons had also taken away certain articles FIR No. 422/1996, PS Moti Nagar Page 1/10 belonging to complainant. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charges for offence punishable under section 380/448/506-II/34 IPC were framed against accused Harsharan Singh and Mohd. Ahmed (since expired), to which they pleaded not guilty and claimed trial. Other accused persons namely Rajpal, Harish Chand, Ram Gulam, Ram Bharti, Krishan Pandey, Ram Murti were discharged. During the course of trial on 09.06.2013 accused Mohd. Ahmed was expired and proceedings against him were abated vide order dated 21.08.2013. In the charge sheet one Mr. Babu Lal was also named as an accused in the present case, however, later on he was declared as Proclaim Offender and in the order sheet dated 13.02.2013 it was written by the then Presiding Officer that accused Babu Lal has expired, however, his death certificate is not on record. Thus, accused Babu Lal is to be treated as Proclaimed Offender in the present case. The order is already on record.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 Ravi Dutta Sharma stated that on 24.07.1996 at about 03:00 to 03:30 PM, accused Harsharan Singh alongwith Mohd. Ahmed and Yunis accompanied by 10-12 persons reached B-5, Raja Garden i.e. the dairy of the complainant and threatened to kill them. It is stated by him that his wife namely Laxmi Devi was present there alongwith children Deepak, Rekha and Rajni. It is stated by him that accused Harsharan and his accomplices were having knife and revolver in their hands. It is stated that police came at the spot as they called the police on phone and police took them to PS Moti Nagar, however, matter was not settled in the PS. It is stated that accused and his accomplices also gave threats to them in the PS. It is stated that on 25.07.1996 at about FIR No. 422/1996, PS Moti Nagar Page 2/10 05:00 PM accused Harsharan alongwith 8-9 other persons forcibly encroached upon their land at B-5, Raja Garden and also gave threats to kill him and his family members. It is stated that police came at the spot on calling by them. It is stated that police has taken the accused and his accomplices into custody. It is stated by him that complaint was written by his son-in-law as he is illiterate and same is Ex.PW1/A. In his cross-examination he denied having reached any compromise with the accused persons at the PS. It is stated by him that he was put into the possession of the plot in question by its owner namely Smt. Saraswati Singh. However, it is stated by him that no written agreement was executed between them and he was not paying any amount to her for possession of that plot. However, he denied the suggestion that he was never been in possession of that property. He shows ignorance to the fact that Smt. Saraswati Devi had sold the plot to accused Mohd.
Ahmed on 22.11.1984 vide registered sale deed. It is accepted by him that in the year 1985 he had given in writing to Smt. Saraswati Singh that he will not pay illegal possession of that plot.
5. PW2 ASI Jugal Kishore stated that on 25.07.1996 he was posted at PS Moti Nagar and on that day he alongwith SHO Moti Nagar reached at B-5, Raja Garden on govt. vehicle, where a Maruti car bearing no. DL-1CC-2615 and a tempo bearing registration no.DBL-2723 were parked in front of that. It is stated by him that accused (name of the accused is Harsaran, however wrongly written as Ramsaran) was standing there alongwith 6-7 co-accused. It is stated that two windows and three iron doors (gate) were also kept in the tempo. It is stated that after interrogation, his accomplices namely Harish Chand, Ram Murti, Babu Lal, Shri Ram Bharti, Raj Pal, Krishan and Ram Gulam were arrested vide memos Ex.PW2/A, PW2/B, PW2/C, PW2/D, PW2/E, PW2/F, PW2/G and PW2/H. Windows and iron gates were taken into possession vide memo Ex.PW2/I and tempo vide seizure memo Ex.PW2/J, car vide seizure memo Ex.PW2/K, thereafter they came back to PS Moti Nagar with case property. This witness correctly identified the photographs of the case property as Ex.PW5/A1 to A4.
FIR No. 422/1996, PS Moti Nagar Page 3/106. PW3 Smt. Laxmi Devi stated that there was a vacant plot in front of their house and in the said plot his husband and his neighbour Kashmere Lal had kept the goods and buffalo. It is stated that one Smt. Sarswati Devi was the owner of the said plot and they tied buffalo over the said plot with the permission of Smt. Saraswati Devi. It is stated by her that she does not remember the exact time but after handing over the possession of the said plot to them, Smt. Saraswati Devi had expired. This witness identified accused Mohd. Ahmed (since expired) and stated that he alongwith his accomplices came to the said plot to take forcible possession of the same and due to which an altercation had taken place. It is stated by her that accused persons had dispossessed them from the said plot and thrown away their goods and untied the buffaloes. In her cross-examination, she accepted that accused Mohd. Ahmed had purchased the said plot from Smt. Saraswati Devi.
7. PW4 Rajeev Kumar stated that on 25.07.1996 he was posted at PS Rajouri Garden as photographer West District. It is stated by him that at the direction of the IO he reached at B-5 Raja Garden and had clicked 6 photographs. It is stated by him that at the said place some buffaloes were tied, fodder and wood were lying on the said plot. It is stated that he was directed to click photographs of the buffaloes and surroundings, same are collectively Ex.PW4/A.
8. PW5 ASI Baljeet Singh stated that on 25.07.1996 he was posted at PS Moti Nagar and on that day on the instruction of SHO Moti Nagar, he reached the spot alongwith SHO and HC Jugal Kishore. It is stated by him that on 24.07.1996 the dispute between the parties had already been settled/compromised, however, again on 25.07.1996 complaint received regarding the same matter. It is stated by him that he had driven the police vehicle to the spot where they found that one Maruti Car bearing no.DL-1C-2643 and one tempo bearing registration no.DBL-2723 were parked outside. It is stated by him that 3 windows and 2 doors were lying on the ground which were unloaded from the above said tempo and he correctly identified the same in photographs FIR No. 422/1996, PS Moti Nagar Page 4/10 Ex.PW5/A1 to PW5/A4. This witness correctly identified accused Harsharan Singh as being present at the spot. It is stated by him that SHO had enquired about the incident and arrested all the accused persons. Thereafter, the case property was seized vide memo Ex.PW5/A and PW2/I and PW2/K (during the testimony of this witness MHC(M) has produced photographs of three windows and two doors which are lying in the Malkhana and not in a position to be transported to the Court due to rust. He has also produced copy of DD No.4B dated 21.10.2005, wherein it was recorded that certain case property of this case i.e Baans, Balli and ladder has been disposed off as the same were destroyed by termite).
9. PW6 M.L. Arora stated that he was posted as Sub-Registrar at Kashmere Gate Office from 1994-96 and he has been retired from his job since 1996. It is stated by him that he cannot tell if the documents mark X copy of sale deed dated 22.11.1994 is bearing his signature or not as the same is only a photocopy.
10. PW7 Inspector Sanjeev Kumar stated that on 13.08.1996, he was directed by the SHO to visit the office of Sub-Registrar Kasmere Gate to verify the sale deed dated 22.11.1994 purportedly executed by Smt. Sarswati Singh in favour of accused Mohd. Ahmed. It is stated by him that accordingly he went to the office of Sub-Registrar and inquired from the Sub-Registrar Sh. M.L. Arora, who after seeing the record informed him that sale deed was registered by him. Sale deed is mark X and he also recorded the statement of Sh. M. L. Arora U/s 161 Cr.P.C.
11. PW8 ASI Dilbagh Singh was the duty officer on 25.07.1996 and he exhibited on record copy of FIR as Ex.PW8/A (OSR) and endorsement on the rukka as Ex.PW8/B.
12. PW9 Retired Inspector M.L. Sharma stated that on 25.07.1996 he was posted as SHO at PS Moti Nagar. On that day the investigation of the present case was marked to him. On that, he went to the spot i.e. B-5, Raja Garden where he prepared the site plan Ex.PW9/A, seized the tempo bearing no. DBL-2723 vide seizure memo Ex.PW2/J, seized FIR No. 422/1996, PS Moti Nagar Page 5/10 the Maruti Car bearing no. DL1CC-2645 vide seizure memo Ex.PW2/K, seized the iron gate and wooden gate vide seizure memo Ex.PW2/I, seized the Bans balli and other construction related material vide seizure memo Ex.PW5/A. It is stated by him that accused Harsharan Singh was apprehended. This witness correctly identified accused Harsharan Singh. It is stated that accused was arrested and personally searched vide personal search memo Ex.PW2/E. It is stated that he recorded the statement of witnesses and after completion of investigation charge sheet was submitted to Court for trial. This witness correctly identified the photographs of the case property i.e. Bans, Balli and ladder as Ex.PW5/A1 to PW5/A5.
13. No other witness was left to be examined, hence, PE was closed.
THE DEFENCE :
14. Statement of accused Harsharan Singh U/s 313 Cr.P.C was recorded. In his statement, the accused controverted and denied the allegations leveled against him. Accused stated that he is innocent and has been falsely implicated in the present case. It is stated by him that a settlement had reached between complainant Ravi Dutt Sharma and accused Mohd. Ahmed (since expired) in the PS on 24.08.1996 in his presence. It is stated that he had signed the same as a witness. It is stated by him that he has been falsely implicated in the present case as he had told the complainant to obey the settlement reached with accused Mohd. Ahmed on 24.07.1996. Accused opted not to lead any defence evidence.
THE ARGUMENTS:
15. Ld. APP for State has argued that complainant/ injured has supported the prosecution and his testimony has remained unrebutted. That on a combined reading of testimony of prosecution witnesses, offences U/s 380/448/506-II/34 IPC are proved beyond reasonable doubt.
16. On the other hand, Ld. counsel for accused has stated that there is FIR No. 422/1996, PS Moti Nagar Page 6/10 no legally sustainable evidence against the accused. It is argued that there are a number of contradictions in the testimony of complainant. It is stated that PW3 who is the wife of PW1 complainant, could not remember if the present accused was accompanying accused Mohd. Ahmed at the time of incident or not. It is argued that even PW1 has not stated anything regarding theft of any property/articles from his possession. It is also argued that even the complainant was in illegal possession of that plot.
THE FINDINGS:
Offence U/s 380/448/506-II/34 IPC:
17. Arguments adduced on behalf of State by Ld. APP and for defence by Ld. Defence Counsel have been heard. Evidence and documents on record carefully perused.
18. In order to bring home the guilt of the accused for the offence under Section 380/448/506-II/34 IPC, the prosecution was required to prove that the accused has committed house trespass into the property in possession of the complainant, that the accused had threatened to kill the complainant and he had taken away certain articles from that plot.
19. In the case in hand there are only two eye witnesses of the incident i.e. PW1 complainant Ravi Dutt Sharma and PW3 Smt. Laxmi Devi w/o complainant Sh. Ravi Dutt Sharma. PW3 Smt. Laxmi Devi, though stated in her examination that accused Mohd. Ahmed (since expired) had come to their plot to take forcible possession of the same due to which an altercation had taken place. However, she has stated nothing against the present accused namely Harsharan Singh. It is stated by her in her cross-examination by Ld. APP for State that she does not remember if accused Sharan (apparently name of the accused has been wrongly written as his name is Harsharan) who was present in the Court had accompanied accused Mohd. Ahmed. It is stated by her that she does not know if accused Sharan (correct name is Harsharan) had brought the doors for raising construction over the said plot. Thus, PW3 has not stated even a word against present accused Harsharan Singh.
FIR No. 422/1996, PS Moti Nagar Page 7/1020. In the entire testimony of PW1 Ravi Dutt Sharma, he has nowhere stated that his articles were taken away by the accused or by any of his accomplice. Thus, the allegations of theft will not sustain. PW1 has nowhere mentioned the articles which were stolen or the manner in which the same were stolen or from where the same were recovered.
21. It is argued on behalf of the accused that the plot in question was belonging to one Smt. Saraswati Singh and she has sold the plot to accused Mohd. Ahmed, thus the possession of the complainant was illegal. From the evidence on record, it appears that the complainant was in settled possession of plot bearing no.B-5, Raja Garden, Delhi though he was not having any document to show legality of his possession. For commission of an offence of house trespass, it is not required that the complainant should have legal possession of ownership of that house or land. It is sufficient if he is having settled possession of that property. It is well known principle of law that a person in settled possession of a property cannot be dispossessed from that property without the due process of law. In the present case, the complainant was in settled possession of the plot in question and the accused Harsharan Singh alongwith his accomplice entered into that plot to take possession of the same as accused Mohd. Ahmed had purchased that plot from its owner. In such situation the entry of the accused into the said plot will be seen as with the intention to annoy the complainant who was in settled possession of that property. In such situation ingredients of offence U/s 448 IPC are proved against the accused Harsharan Singh beyond reasonable doubt.
22. To prove an offence U/s 506-II IPC, it has to be proved that the accused had threatened the complainant with the threat of causing his death and due to the said threat he intended to cause an alarm to that person. In the present matter PW1 Ravi Dutt Sharma has stated that on 24.07.1996 present accused alongwith his accomplices had threatened to kill him and his family, it is also stated by him that accused and his accomplices were having knives and revolvers with them. It is stated by him that thereafter police came at the spot. The police took both the FIR No. 422/1996, PS Moti Nagar Page 8/10 sides to Police Station and even in the Police Station accused had threatened the complainant. It is stated that again on the next day accused and his accomplices came to the plot of the complainant and even on that day accused Harsharan had extended threats to the complainant. The testimony of PW1 on this aspect remains unrebutted. From the testimony of complainant it is clear that accused Harsharan Singh has threatened to kill him and his family. This threat raised an alarm due to which complainant called the police on both the occasions. In these circumstances, all the ingredients of committing offence U/s 506-II IPC are duly fulfilled.
23. Hence, it can be seen that there is a categorical statement made by PW1 implicating the accused in present case. The evidence of PW1 is natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in the cross-examination of PW1.
24. In the case in hand, this Court found the testimony of PW1 absolutely credit worthy and truthful. The testimony of police officials has also supported the version of the complainant.
25. The argument that other public witnesses were not joined in the investigation is not material. As it is settled law that conviction can be based on the testimony of a single witness or even of police witnesses and it is not necessary that in each and every case, public witnesses must be joined. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there FIR No. 422/1996, PS Moti Nagar Page 9/10 everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
26. On the basis of above stated evidence, in the considered opinion of this Court the prosecution is able to prove on record beyond reasonable doubt that the accused Harsharan Singh with his accomplices had committed house trespass on the plot in the possession of the complainant. It is also proved beyond reasonable doubt that accused had extended threat to kill the complainant and his family. However, there is no evidence on record regarding the theft committed by the accused.
27. Thus, in the considered opinion of this Court, all the ingredients of Section 448/506-II/34 IPC are satisfied. As such accused Harsharan Singh S/o Late Sh. Mahinder Singh is convicted for the offence Under Section 448/506-II/34 IPC. Accused Harsharan Singh is acquitted for committing offence U/s 380/34 IPC.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 21.03.2015 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 422/1996, PS Moti Nagar Page 10/10