Delhi District Court
State vs . Raj Kumar & Ors. on 31 March, 2022
IN THE COURT OF MS. NEHA GUPTA SINGH,
METROPOLITAN MAGISTRATE : 09 (CENTRAL) TIS HAZARI
COURTS, NEW DELHI
FIR No. 217/2010
PS: Burari
U/s. 447/34 IPC
State vs. Raj Kumar & Ors.
JUDGMENT
1. Case no. of the case : 297820/16
2. Date of Commission of the offence : 08.04.2010
3. The name of the complainant : Ashok Gupta
4. Name & address of accused : 1.Raj Kumar R/o H. No. 302, Village Burari, Delhi.
2. Sushil R/o R/o H. No. 302, Village Burari, Delhi.
3.Sukhbir Singh R/o H. No. 302, Village Burari, Delhi.
4. Jagat Singh R/o H. No. 237, Village Burari, Delhi.
5. Date of institution of FIR : 21.07.2010
6. Date of receipt of this case in : 30.01.2015 this court
7. The plea of the accused : Pleaded not guilty
8. Date of reserving the case for order : 24.03.2022
9. Date of Decision : 31.03.2022
10. Final order : Acquitted for offense u/s 447/34 IPC BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. It is the case of the prosecution that on 08.04.2010 on the land bearing Kh. No. 908, Pradhan Enclave, Burari, Delhi84, Falling with the revenue jurisdiction of Salampur Majra, Delhi, within the jurisdiction of PS Burari, all the accused persons in furtherance of their common intention encroached on land belonging to Gram Sabha with intend to intimidate annoy and insult the possessor and all the accused persons thereby committed an offence punishable u/s 447/34 IPC.
2. Chargesheet in the case was filed after completion of investigation and thereafter cognizance of the offence was taken. The copies of challan were supplied to the accused person. On the basis of prima facie evidence charge was framed against all the accused person for the offences u/s 447/34 IPC on 13.07.2012, to which they pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined as many as 05 witnesses. PW1 is Jai Kishan, Kanoongo, PW2 is Sh. Ashok Gupta, PW3 is ASI Amar Nath Tanwar, PW4 is Retired SI Jai Prakash and PW5 ASI Chidda Singh.
4. PW1 Jai Kishan, Kanoongo deposed that in the year 2010 he was posted as Kanoongo at District North, Sub Division Civil Lines, SDM Office, Delhi. On 08.04.2010, after receiving the official order he alongwith Panchyat Secretary, and Halka Patwari and with the help of police force reached village Burari at Kh. No. 908. As per report, he carried out the demarcation of Kh. No. 908. He further deposed that on 08.04.2010 he alongwith Panchayat Secretary Sh. Mukesh Tyagi, Halka Patwari Sh. Vinod Kumar Pandey and police officers of PS Burari went for carrying our the demarcation at Kh. No. 908 of village Burari. He went there with measurement tape and other Revenue records. As per the inspection of the report the Kh. No. 908 which was a Gram Sabha land of village Burari and was a designated public way as per record, was to be found encroached and was being used for agriculture by the field owners of adjacent fields which were falling in the Revenue record of Village Salem Pur Majra, Burari. On inquiry, the public way of Kh. No. 908 was encroached by Raj Kumar, Sushil, Sukhbir and Jagat Singh on a government land. The demarcation report was prepared by him in his handwriting. The original demarcation file has been brought by office Kanoongo Sh. Ramesh Chand from the record is shown to the witness. The photocopy of the same is Ex. PW1/A. The work report which was also prepared by him in his own handwriting. The original work report which is brought by office Kanoongo Sh. Ramesh Chand from the record is shown to the witness. The photocopy of the same is Ex.PW1/B. Thereafter, the work report was handed over to Tehsildar, Civil Lines. On 07.05.2010, on 07.05.2010, on the direction of Tehsildar/BDO, the spot i.e. Kh. No. 908 was again inspected. As per inspection report these four persons were found to be encroaching the government land i.e. Kh. No. 908 of village Burari for agricultural use. The possession was also handed over to the Pnchayat Sachiv on the direction of Tehsildar. His original report dated 07.05.2010 prepared by him in his own handwriting is Ex. PW1/C, Site plan is Ex. PW1/D. The photocopy of the relevant page of Khatouni containing the record of ownership in column no. 02 is Ex. PW1/F. The photocopy of the relevant area of Kh. No. 908 is Ex. PW1/G.
5. PW2 Sh. Ashok Gupta deposed that On 08.07.2010 he written a letter vide no. F.F/SDM/CL/728731 which is ExPW2/A to the SHO, PS Burari by referring to the letter dated 06.05.2010, 12.05.2010 and 02.06.2010 /Block Development Officer Sh. Ajay Kr. Arora, Dist. North, GNCT of Delhi, in the letter he informed him that demarcation of Rasta no. 908, Pradhan Enclave, Village Burari was conducted on 08.04.2010 by the Officials of tehsil, Civil Lines. That the said Rasta was encroached by the encroachers namely Sh. Raj Kumar, Jagat Singh, Sukhbir Singh and Sushil Singh by ploughing the land through tractor which belongs to Gram Sabha, village Burari and the encroached land belongs to village Salimpur, Majra, Burari, Delhi. He informed the said action of the encroachers was with the intention to intimidate insult and annoyed a person in possession that is Gram Sabha and thus commit the criminal trespass which is punishable under IPC and by this letter, he directed him to lodge the FIR against the abovesaid accused persons.
6. PW3 ASI Amar Nath deposed that on 21.07.2010, he was posted at PS Burari as HC and was working as Duty Officer from 4:00 pm to 12:00 midnight. On that day, at about 4:30 pm, he received a rukka from ASI Jai Prakash, on the basis of which, he instructed the computer operator to register the FIR who as per his instructions and dictation, registered FIR No. 217/10 u/s 447 IPC which runs into 2 pages. The computer device installed at the PS for registration of FIR is such that once an information is fed , put or installed in it , it cannot be altered / deleted / edited at any later stage. The computer generated copy of FIR is Ex.PW 3/A bearing his signatures at point A. He also made his endorsement on the rukka which is Ex. PW3/B and bears his signature at point A. The copy of FIR and original rukka were given to Jai Prakash for further investigation.
7. PW4 Retd SI Jai Prakash deposed that on 12.07.2010 he was posted as PS Burari as ASI. On that day he received a postal dak which was sent by SDM Civil Line namely Shri Ashok Gupta which he received through the Reader of the then SHO. On opening the aforesaid dak he received a letter dated 08.07.2010 which is Ex. PW2/A regarding the encroachment on the rasta bearing Khasra No. 908, Pradhan Enclave Burari Delhi which originally belong to Gram Sabha. Thereafter, he made several discussions with his senior officials regarding the aforesaid complaint. After that he lodged a formal FIR No. 217/10, U/s 447 IPC dated 21.07.2010 on the basis of the aforesaid complaint. Thereafter, he started investigation in the present case. During the course of investigation on 22.07.2010 he went to the office of SDM Civil Line and met the then Kanoongo and inquired from him about the rasta Kh. No. 908. He alongwith the aforesaid Kanoongo went to the spot ie. rasta Kh. No. 908 and prepared the site plan at the instance of the Kanoongo which is Ex. PW1/D bearing his signature at point A. Kanoongo handed him over some documents with respect to rasta Kh. No. 908 which is Ex. Pw1/C ie. A report prepared by Kanoongo, which is Ex. Pw1/E ie. Nakal khatoni, which is Ex. PW1/B ie. Karvai report and Ex. PW1/A, Ex. PW1/F, Mark X. Kanoongo also informed him four names of the accused persons ie. (1) Jagat Singh, (2) Raj Kumar, (3) Sukhbir, (4) Sushil who have taken the illegal possession of the aforesaid property and were the local inhabitants in the Burari Village. Thereafter, he recorded the statements of Kanoongo U/s 161Cr.P.C. During the course of investigation he made search of all the accused persons and on 29.07.2010 all the accused persons were arrested. Accused Jagat Singh was arrested vide arrest memo which is Ex. PW4/A bearing his signature at point A and conducted his personal search vide personal search memo which is Ex. PW4/A bearing his signature at point A. Accused Raj Kumar was arrested vide arrest memo which is Ex. PW4/B bearing his signature at point A and conducted his personal search vide personal search memo which is Ex. PW4/B bearing his signature at point A. Accused Sukhbir was arrested vide arrest memo which is Ex. PW4/C bearing his signature at point A and conducted his personal search vide personal search memo which is Ex. PW4/C bearing his signature at point A. Accused Sushil was arrested vide arrest memo which is Ex. PW4/D bearing his signature at point A and conducted his personal search vide personal search memo which is Ex. PW4/D bearing his signature at point A. As the offence under which the accused were booked was found to be bailable offence hence all the accused persons were released on furnishing on bail. During the course of investigation he recorded the statement of the witnesses U/s161 Cr.P.C. After completion of the investigation in the present case he prepared the challan against all the accused persons as per the procedure of Cr. P.C. and filed it before the concerned court.
8. PW5 ASI Chidda Singh deposed that on 29.07.2010 he was posted as HC at PS Burari. He had joined investigation alongwith IO ASI Jai Parkash. The accused in present FIR were arrested vide memos at Village Burari in the evening time i.e. 56.00 pm. Since the offence was bailable, all the accused persons were released then and there on police bail. He had signed on the arrest documents and personal search documents of the accused persons. The arrest memo for Jagat Singh is Ex. PW4/A, for Raj Kumar is Ex. PW4/B, for Sukhbir Singh is Ex.PW4/C and Sushil is Ex.PW4/D and personal search memo for Jagat Singh as Ex.PW4/A, for Sushil is Ex.PW4/D, for Sukhbir Singh is Ex.PW4/C for Raj Kumar is Ex.PW4/B al bearing his signature at point B. The said witness correctly identified the accused persons Sukhbir and Raj Kumar.
9. After closure of prosecution evidence, statement of accused persons Sukhbir Singh and Raj Kumar, U/s 313 Code of Criminal Procedure, 1973 was recorded. Incriminating evidence was put to the accused and they were questioned generally on the case. They denied all the allegations and stated that they are innocent and had been implicated falsely in the present case. The accused opted not to lead any Defence Evidence. Proceedings against accused Sushil and Jagat Singh were abated during the course of trial.
10.It is argued by Ld. APP for the state that accused trespassed in the land of Gram sabha with tractor. Witnesses have corroborated each other and there are documentary evidence on record to show that accused were not the rightful owner of the property.
11.Per contra it is argued by the Ld. Counsel for the accused that accused that accused are farmers and they never encroached upon the passage between agricultural land. There are the contradictions in the testimony of the witnesses.
12.I have gone through the rival submissions of both the parties as well as material on record carefully.
13.It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
14. In present case land belongs to gramsabha and is admittedly a passage between the fields of the accused persons. PW 1 came to know about the encroachment on demarcation. PW 1 has stated on record in cross that there was no encroachment. Passage was never made a pucca road nor it was ever demarcated as such by fencing. There was no vegetation or any construction found at the spot. there is no proof or photographs on record to show the nature of encroachment in open field. Concerned officials never bothered to demarcate or develop the passage and one fine day when they thought of demarcation they alleged encroachment, however there is no evidence on record of encroachment.
15.In light of the above discussion it cannot be said that prosecution proved its case beyond reasonable doubt, accused Rajkumar and Sukhbir Singh are acquitted for offence under section 447/34 IPC.
(Announced in open Court NEHA Digitally signed
by NEHA
GUPTA SINGH
GUPTA Date:
on 31.03.2022 ) 2022.03.31
SINGH 16:49:27 +0530
(Neha Gupta Singh)
MM09/Central/THC
31.03.2022
The judgment contains 12 pages and all the pages bears my signatures.
Digitally signed by NEHA NEHA GUPTA
GUPTA SINGH
Date: 2022.03.31
SINGH 16:49:36 +0530
(Neha Gupta Singh)
MM09/Central/THC
31.03.2022