Delhi District Court
Court In Mathri vs . State Of Punjab Air 1964 Sc 986 That The ... on 31 May, 2011
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IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN MAGISTRATE,
DWARKA COURTS, NEW DELHI
FIR NO: 927/2000
PS: Dabri
U/s 448 IPC.
State V. Shankar etc.
Date of institution of the case : 22.02.2001
Date on which Judgment was reserved: 31.05.2011
JUDGMENT
a) S. No. of the case : 309/08
b) Date of commission of offence : 10.10.2000
c) Name of the Complainant : Sh. Rajinder Singh
S/o Sh. Jhori Singh
R/o RZ-48, Gali No. 24,
Vashisht Park, New Delhi.
d) Name of accused and address : 1) Shankar
S/o Bhagwan Sahai
R/o RZ-62, Gali No. 24,
Vashisht Park, New Delhi.
2) Suresh Kumar
S/o Bhagwan Sahai
R/o RZ-62, Gali No. 24,
Vashist Park, Pankha Road,
New Delhi-46.
e) Offence complained of : U/s 448 IPC
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f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 31.05.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1. The present case was registered on the statement of complainant Rajinder Singh given by him on 13.10.2000 in which he alleged that he had bought plot No. RZ-62A, Gali No. 24, Vashisht Park in 1990 and he constructed three small shops on that plot. Both accused persons Suresh and Shankar made holes in the walls of the shop and they also constructed three windows towards rooms of his shop by climbing his shops. The accused persons put three iron garders on roofs of their shops and part of 2.5/3 feet of those iron Garders is coming at the roof of complainant's shop. Both accused persons are trying to effect illegal possession over the shops of the complainant and to fulfill their desire they constructed windows and put part of iron garders on his shops so that they can use the open window to possess the shops of the complainant. 3 Therefore, FIR U/s 448 IPC registered.
2. After completing the investigation, charge sheet U/s 173 CrPC filed against both accused persons for the offence U/s 448 IPC. Cognizance taken accordingly and notice was framed against both the accused for the offence u/s 448 IPC to which they pleaded not guilty and claimed trial.
3. To prove its case, Prosecution has cited six witnesses in its list of witnesses and examined all six witnesses.
4. PW-1, HC Prembir Singh stated that on 13.10.2000 he received a rukka through Ct. Subodh Kumar on the basis of which he registered the FIR of the present case Ex. PW-1/A and made endorsement on the rukka in this regard Ex. PW-1/B. He also recorded the DD entry No. 11A dated 13.10.2000 following a message through wireless. The relevant DD register has been destroyed and report in this regard is Ex. PW-1/C and copy of said DD is Ex. PW-1/D.
5. PW-2 Rajinder Singh, who is the complainant stated that he purchased 4 the plot in question in 1990 and built up the small shops on the said plot. Accused persons were residing in a house adjacent to his house and they raised a wall of their house and also put a shed measuring 3 feet with the support of angle built up on the roof of his shop and also fitted three windows thereon to encroach upon his shop. The accused persons also drilled hole in the wall of his shop through their walls. Earlier, the roof of his shop and the house of the accused persons were in the same level. Thereafter, they demolished their roof and further constructed the said structure to encroach his shop. When the said structure was being built up, he made a call on telephone no. 100 and police came on the spot and got the construction stopped. But after ½ days, accused persons again started raising the said construction on his shop. He again made a call to the police and police got stopped the construction again. He did not remember the date when he finally made a statement Ex. PW2/A to the police. His statement was recorded at Police station. He had also shown the documents of the ownership to the police and did not give the copy of the same to the police. He did not remember, if the police had got the photocopy of the same. He had also got the photograph of the said structure. He identified the accused persons. He had brought the original copy of documents placed on record i.e. GPA, 5 Agreement to Sell, Affidavit and a receipt of Rs. 20,000/-, copy of the same are Ex. PW-2/A to D respectively. He ad also given the positive of photographs taken by him by photographer of the structure to the police. Same are mark 1 to 10. He do not remember the name of the photographer, however, his name was something was Yadav. Negative of the photographs are also present on the record. Same are mark 11 to 20.
6. PW-3 Ct. Subodh stated that on 13.10.2000 in pursuance of DD No. 11 A, he along with SI Ram Pal reached at the spot where SI recorded the statement of complainant and sent him to PS with rukka for FIR. He came back after registration of FIR. Thereafter, on 19.10.2000, he joined investigation and went to the house of the accused with IO where both accused persons were arrested vide memos Ex. PW-3/A to D.
7. PW-4 SI Ram Pal deposed that on 13.10.2000 on receipt of DD No. 11A Ex. PW-1/A, he along with Ct. Subodh reached at Gali No. 24 where construction work was going on by both accused persons. He recorded the statement of complainant and got registered the FIR vide his endorsement Ex. PW- 6 5/A and he prepared site plan ex. PW-5/B. Site was photographed and said photographs of the site are Ex. P-1 to P-8. He also seized documents of the complainant in respect of property in dispute vide memo Ex. PW-5/D. Both accused were arrested on 19.10.2000 vide memos Ex. PW-3/A and Ex. PW-5/E and personal search memos Ex. PW-5/F and Ex. PW-5/G. He recorded the statement of PWs and on transfer handed over the file to MHCR.
8. PW-5 Govinda stated that he was working as Tea vendor in a rented shop of Rajinder. The accused had erected / put three - four iron garders on their roof of his house.
9. PW-6 Sh. Shanti Parsad stated that he was running a Kabadi shop on rented shop of Rajinder for about 17 years. Accused persons has erected three ventilations in the roof of shop of Rajinder and also erected three garders on roof and also broken three four poll brick of the door. He also identified both the accused persons.
10. No other witness was examined by the prosecution and PE closed. 7 The statement of both the accused U/s 281 CrPC recorded in which they denied all the allegations made against them and they further submitted that they do not want to lead any defence evidence. Therefore, matter was fixed for final arguments.
11. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused persons and they be given maximum punishment. Ld. Counsel for accused also filed written submissions / arguments on behalf of accused stating therein that prosecution cannot prove any ingredients of the offence against the accused persons. Statement of witnesses are contradictory. The I.O. has completed the investigation mechanically and he failed to do proper investigation. None of the public independent witnesses supported the version of complainant which reveals that story of the complainant is concocted. Accused persons are falsely implicated in the present case and are liable to be acquitted. I have gone through the oral and documentary evidence on record.
12. It is the duty of the prosecution to prove its case against the accused 8 persons beyond any reasonable doubts. In the present case, the charge against the accused persons is for the offence U/s 448 IPC which proves punishment for house trespass. House trespass is define in Section 442 IPC which reads as under:-
" 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 place for worship, or as a place for the custody of property, is said to commit house trespass.
Explanation :- The introduction of any part of the criminal trespassers body entering is sufficient to constitute house trespass."
13. Therefore, in view of the above said provision to constitute the offence of house trespass, the main ingredients is that the accused have committed offence of criminal trespass which is provided under Section 441 IPC as under :-
" Section 441. Criminal trespass :- Whoever enters into or upon property in the possession of another with intends to commit an offence or to 9 intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains therewith, intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass. "
14. The combined readings of the above said provisions reveals that essential ingredients to establish offence U/s 448 IPC are :
I) Accused enters into or upon any building, tent or vessel used as a human dwelling in the possession of another,
ii) he does so with intent,
a) to commit an offence, or
b) thereby to intimidate, insult or annoy such person.
15. As far as the first ingredients is concerned, it is must that the accused entered into or upon the house, building etc. of the complainant. The complainant in his complaint Ex. PW-2/A stated that accused persons had constructed three windows after climbing on roofs of his shops, whereas in his statement before 10 court as PW-2 he nowhere stated that accused persons climbed upon or entered upon the roofs of his shops. PW-2 further stated in his statement before the court that after 1 / 2 days accused persons again started raising the said construction on his shop where as in Ex. PW-2/A he had not stated such facts. He also remained unable to tell the date when he made the statement Ex.PW2/A to the police and he stated that his statement was recorded at police station whereas IO of the case PW-4 and PW-3 Ct. Subodh stated that statement of complainant was recorded at the spot. Further PW-2 stated that he had given the positive of photographs taken by him by photographer to the police whereas as per recovery memo of Photographs Ex.PW5/D the photographs were taken by IO of the case and were delivered to the IO after their development by Ct. Subodh Kumar. These contradictions affect the reliability of the testimony of PW-2 who is only one supporting witness of the prosecution other than official witnesses.
16. As far as possession and ownership of the property in question is concerned, that is proved by placing on record documents general power of attorney, agreement to cell, affidavit and a receipt of Rs.20,000/- Ex.PW2/A to Ex.PW2/D by the complainant. Mode of proving such documents was objected to 11 by Ld. Counsel for the accused. It is a settled rule of Law of Evidence that contents of the documents can be proved by its subscriber or in whose presence the document was executed and there are signatures of that person on the document to show his presence at that time. The documents Ex.PW2/A to Ex.PW2/D do not contain signatures of the complainant. This fact is also admitted by the complainant in his cross examination. Therefore, these documents are not proved as per the standards of proving a document provided in the Indian Evidence Act.
17. Statement of PW-6 also reveals that accused persons had erected three ventilations in the roof of shop of Rajender whereas the case of prosecution is not so and complainant himself had not stated that accused persons erected ventilations in the roof of his shop. In his cross examination he specifically admitted the fact that accused persons never entered into the shop of complainant and accused persons never raised any constructions on the roof of shop of Rajender except erecting garders.
18. Statements of complainant and I.O. SI Rampal are also contradictory. 12 PW-2 stated in his evidence that his statement was recorded at PS whereas PW-3 and PW-4 (I.O.) stated that statement of complainant was recorded at the spot. Regarding photographs of the spot also there are contradictory statements. As per Ex.PW5/D photographs were handed over to the IO by Ct. Subodh Kumar whereas as per statement of PW-2 the photographs mark 1 to 10 were given by him to the police. When IO went to the spot and started the investigation then complainant was present there but at the site plan Ex.PW5/B there is no name /signature of the complainant as a witness.
19. To prove the offence u/s 448 IPC three things are very necessary i.e. The person entered upon others property so ownership of the complainant over the property where the alleged trespass happened must be proved but in this case documentary evidence to this effect are not sufficient. Then the entry of trespasser is also not proved as none of the prosecution witnesses stated that accused persons entered into the shop of complainant. Then thereafter, the intention / mens-rea is sine qua none to establish this offence as held by Hon'ble Supreme Court in Mathri Vs. State of Punjab AIR 1964 SC 986 that the aim or dominent intention of the accused for committing an offence or intimidation insult or 13 annoyance must be proved. It is also held by Hon'ble Supreme Court in Kanwal Sood Vs. Naval Kishor, AIR 1983 SC 159 that mere unlawful occupation of premises without any intention to commit an offence or to intimidate, insult or annoy any person does not fall under section 441 IPC.
20. In the present case also it is not established that accused persons committed the alleged office with an any intention to do so. The circumstantial evidence as the construction work was going on at the spot by the accused at the adjacent to the shop of the complainant which is also corroborated by the photographs mark 1 to 10 and which shows that the garders lying at the top of the structure unfitted and temporarily which are generally used for the shuttering purposes. IO of the case also deposed that when he reached at the spot then construction work was going on. The I.O. No where stated in his statement that when he reached at the spot then accused persons not stopped the alleged trespass on asking of his or complainant. Therefore, all the essential ingredients of the offence u/s 448 IPC are not fulfilled beyond reasonable doubts.
21. Hence, keeping in view the above said discussion, court comes at the 14 conclusion that chain of the evidence against the accused persons is not completed. Therefore, prosecution failed to prove all the ingredients of the offence alleged against any of the accused persons beyond reasonable doubts. Hence, accused persons Shankar S/o Sh. Bhagwan Sahai and Suresh Kumar S/o Sh. Bhagwan Sahai stands acquitted in case FIR No:927/2000, U/s 448 IPC, PS:
Dabri. Bail bonds stands cancelled and sureties stands discharged. File be consigned to record room after due compliance.
Announced in the open court
on this 31st May, 2011 (Dr. JAGMINDER SINGH)
METROPOLITAN MAGISTRATE
DWARKA COURTS/DELHI
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FIR NO: 927/2000
PS: Dabri
U/s 448 IPC.
State V. Shankar etc.
31.05.2011.
Present: APP for the State.
Both accused on bail with Ld. Counsel.
Final arguments heard today.
Vide separate judgment pronounced and dictated in the open court, accused persons Shankar and Suresh Kumar are acquitted for the offence u/s 448 IPC. Bail bond stands cancelled and sureties stands discharged.
Document, if any, of sureties be returned. Endorsement, if any, be also cancelled. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI