Delhi District Court
State vs . Udaybir Singh on 13 February, 2017
IN THE COURT OF SHRI PAWAN KUMAR: METROPOLITAN MAGISTRATE
02 (CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Udaybir Singh
FIR No. 281/1999
U/s: 448 IPC
P.S. Timar Pur
Unique Identification No. : 291439/2016
Date of Institution : 27.11.2003
Date on which case reserved
for judgment : 13.02.2017
Date of judgment : 13.02.2017
Name of the complainant : Ms. Guddi
Date of the commission of : On or before 28.05.1999
offence
The name & address of accused: Udayvir Singh s/o Sh. Shiv Raj Singh
r/o House No. SK, Chowki No. 2,
Sindora Kala, Delhi.
Offence complained of : u/s 448 IPC.
Offence charged of : U/s 448 IPC.
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
1.Initially, the chargesheet was filed against the accused Narinder and Udaybir Singh. The accused Narinder had expired and accordingly proceedings qua him stood abated. The accused Udaybir Singh has been facing the trial for commission of offences U/s 448 IPC. The present FIR was registered on the statement of the Ms. Guddi (hereinafter to be referred as complainant). The brief facts of the prosecution case are that the complainant had purchased a plot of 100 Sq. Yds at Khasra No. 5/9,Tomar Colony, Burari from Mahender Singh s/o Sh. Rajpal Singh. The complainant had constructed the boundary in the said plot and took the possession. One day the complainant came to know that accused Udaybir and Narender had took the possession of the plot of the complainant by making the false documents. The complainant produced the accused at the police chowki. During the investigation, the complainant had produced the sale deed of the said plot. The accused had also produced the property documents of his plot i.e. Khasra No. 5/10,Kamaal Pur, Majara. On the basis of the aforesaid allegations, the present case FIR was registered and investigation was conducted.
2. On conclusion of the investigation, chargesheet was filed under Section 173 Cr.P.C. for the offences under Section 448 IPC. The copy of the challan was supplied to the accused in compliance of provision under Section 207 Cr.P.C.
3. On the basis of the contents of the chargesheet and after hearing both the parties, the charge was framed against the accused for the commission of offences under Section 448 IPC, to which he pleaded not guilty and claimed trial.
4. The prosecution has examined twelve witnesses (12) in order to establish the case against all the accused.
PW1 Smt. Guddi Dhillion is the complainant and she deposed that she had purchased a plot of 100 Sq. Yds at Khasra No. 5/9,Tomar Colony, Burari from Khajan Singh for the consideration of Rs. 10,000/. The complainant had constructed a boundary on the said plot and she was in the possession of the said land. The complainant in the May 1999 came to know that one person namely Narender is trying to occupy her plot. On the next day, the witness called the police at the plot but Narinder had fled away from the scene. The complainant accompanied one police person for the identification of the plot. The witness handed over the original documents to the IO. PW1 made a complaint EXPW 1/A. The site plan was prepared at the instance of the witness. The original documents of the plot were seized by the IO vide seizure memo EXPW 1/CA and EX 1/CB. IO recorded the disclosure statement EX PW1/D of the accused. PW1 produced the certified copy of the sale deed of the plot in question and the same is EXP2. The complainant deposed that on 27.04.99, that accused alongwith Narinder has forcibly taken the possession of her plot. Both the accused were arrested in the presence of complainant.
PW2(wrongly typed as PW2) Sh. Bijender Singh deposed that Mahender Singh was his maternal nephew and he was working in Swantanta Bharat Mill. Mahender Singh Tomar had sold the plot in Tomar colony. Ms. Guddi and Mohd Razaq had purchased two plots of 100 Sq. Yards which are adjacent to each other. The witness failed to tell the khasara number of that plot. The accused Narinder Singh was known to the witness as he used to sale and purchase the plots.
PW3 Sh. Abdul Razzaq deposed that he had purchased a plot in khasara no. 5/10 in the year 1984. The witness had constructed a boundary wall and one kacha room on the said plot. PW3 had sold the said plot to Narender Singh in the year 1994 and handed over the original sale deed. PW3 further deposed that in the year 1999, police officials came to him and the witness took the police official to the said plot and pointed out the same. The police seized the photocopy of sale deed and site plan from the witness vide memo EXPW 3/A. The police had recorded the identification statement EXPW 3/B of the witness.
PW4 Smt. Lata Mittal deposed that she had purchased the plot of 250 sq. Yds at Burari in the year 1996. She further deposed that said plot was near the plot of the complainant and she remained there till the year 2000. PW4 deposed that in the year 1999, she noticed that some persons had started construction upon the plot of the complainant. The witness informed to the complainant. The witness failed to produce the documents of her plot at Burari. The witness was cross examined by the Ld. APP as she resiled from her previous statement.
PW11 SI Ram Murti is the investigating officer and he deposed that on 28.05.1999, he recorded the statement of the complainant EXPW1/A and made endorsement EXPW 11/A. The IO got the FIR registered by handing over the Rukka to duty officer. The witness prepared the site plan EXPW 1/B. The witness recorded disclosure statement of the accused EXPW 1/D and arrested him vide arrest memo EXPW 1/F. During the investigation, the witness seized certain documents handed over by the accused and complainant vide separate seizure memos EXPW 11/B,EXPW 9/A, EXPW 1/C and EXPW 11/C. PW5 Sh. Sukhbir and PW6 Sh. Rajbir expressed their ignorance about the facts of this case and hence they were cross examined by the Ld. APP .
PW7 SI Satender deposed that on 28.05.1999, he registered the FIR on the basis of the Rukka sent by ASI Ram Murti. The copy of the FIR is Ex. PW 7/A . The witness made the endorsement on the rukka Ex. PW 7/B. PW12 Sh. Darshan Dayal Goel examined the question documents and gave the opinion which is Mark 12/X.
5. On examination of all the material witnesses, the prosecution evidence was closed. The statement of the accused as mandated by Section 313 r/w 281 Cr. PC were recorded. The accused opted to lead defence evidence.
6. In his defence, the accused has examined three witnesses.
DW1 Ct. Sunil Kumar and DW2 HC Sukesh Kumar deposed that summoned record has been destroyed.
DW3 Sh. Ram Kishore deposed that about 1819 years back , the accused had constructed one room in gali no. 5,Tomar Colony and the witness had performed Hawan at his house. DW3 deposed that the accused stayed in the said room for about six months and thereafter left for Himachal Pradesh and the accused was known to the witness as accused used to come to his residence to bring drinking water.
7. On examination of defence witnesses, the defence evidence was closed.
8. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the materials available on record.
9. Section 448 IPC provides punishment for the commission of offence of criminal trespass.
Section 441 IPC defines criminal trespass as follows; " 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"."
In order to constitute criminal trespass under this section, there must be
1. (a) Unlawful entry into or upon property in possession of another, or
(b) Unlawfully remaining there.
2. With intent, in either case,
(a) to commit an offence, or
(b) to intimidate, insult or annoy the person in possession of the property.
10. The prosecution case qua the accused persons in brief is that the complainant had purchased one plot of 100 yards in Khasara no. 5/9, Tomar Colony, Kamaal Pur, Burari. The complainant was stated to be in possession of the aforementioned plot by constructing the boundary wall. It is alleged that the accused Narender had prepared the false documents in favour of the accused Udaybir and constructed a room in the said plot. It is the defence of the accused that he had not encroached upon the plot of the complainant,rather, he had purchased the plot from coaccused Narinder and he was in legal possession of the said plot.
11. In order to claim the ownership of the plot in question, the complainant relied upon the sale deed EX P2, which was allegedly executed by one person namely Mahender. In the cross examination, PW1/complainant stated that he had not seen the documents in favour of Mahender Singh as it was is his ancestral property. As per the revenue record collected by the IO during the investigation, the land in Khasara no. 5/8, 5/9 and 5/10 belonged to Bishambher, Rajbir and Vijay and later on it merged into Gram Sabha as per the provisions of DLR 81.
12. It is argued on behalf of the accused that he had purchased one plot in Khasra no. 5/10 from the accused Narinder,who had purchased the same from Abdul Razaq. During the investigation, the accused had submitted the copy of the GPA executed by Abdul Razaq and Narender Singh and the same were seized by the IO during the investigation vide seizure memo EX PW11/B. As per the copy of the GPA, Bishambher and Vijay Singh had executed the GPA in favour of Abdul Razaq regarding the plot in Khasara no. 5/10. Here it is pertinent to mention that the judicial file of this case was reconstruced by the order of Ld. Distt. Judge as the original was destroyed in a fire broke out in court room on 19.08.2002.
13. It is argued on behalf of both the parties that the civil litigation between them is still pending in Civil Court regarding the alleged disputed plot. In the present case, the accused is facing the trial for the offence u/s 448 IPC which is an offence qua the possession and not the ownership. It is the case of the prosecution that the complainant had constructed the boundary wall on the said plot and the accused had put the tin shade on the walls to construct a room. As per the complainant, she was informed by some local person that the accused persons had encroached upon her plot and thereafter, she made the complaint to the police.
14. PW1 deposed that she was informed by fallow villagers that one person namely Narender is trying to occupy her plot. When she went to the plot and public had gathered there and then the accused Narender had fled away from the scene. Thereafter, the complainant went to the Police Post Burari where her statement was got recorded. In contradiction to that the complainant took another stand in the evidence that on 27.04.1999, she was informed by the villagers that Narender alongwith the accused Udaybir had forcibly taken over the possession of her plot. In the whole testimony of the complainant there is no mention as to how did the accused persons occupy her plot.
15. PW1 stated in the examination in chief dated 19.07.2012 that the plot purchased by the accused Udaybir was situated at gali no. 3 and khasara no. 5/10. In the crossexamination the wtiness did not tell whether the accused was having any plot in the said area. There are serious contradiction and material improvements in the testimony of the complainant.
16. It is admitted position that there were large number of plots in Khasara No. 5/9 and 5/10 bearing the same number. It is stated by the IO that it was not possible to ascertain the particular portion of Khasara number which specifically belonged to the accused or to the complainant. The complainant failed to state whether any demarcation of plot in question was done by the Revenue official.
17. The IO has prepared the site plan EXPW 1/E during the investigation. As per the site plan, the plot in question and plot of Abdul Razaq are adjacent to each other. The site plan is not in conformity with the testimony of the complainant. The complainant deposed that the plot in question was surrounded by the plots of Pradeep Singh & Ram Bhatari on the east and west side respectively. Here it is relevent to mention that PW3 Abdul Razaq deposed that in 1984 he had purchased one plot in Khasara no. 5/10 through sale deed and constructed one small Kacha room after constructing the boundary. PW3 further deposed that later on he had sold the same to Narender Singh in the year 1994. The statement of Abdul Razaq is corroborated with the documentary evidence, as per which he had purchased the plot in khsara no. 5/10 from Bishambhar Singh. The aforementioned Narender Singh had sold the plot to the accused Udaybir.
18. The prosecution has not examined any witness to establish that the complainant was in possession of the plot in question. It is the defence of the accused that after purchasing the plot in khsara n o. 5/10, he had been residing there for around 3 to 6 months and thereafter, he was transferred to Himachal Pradesh. It is further argued on behalf of the accused that he had made complaint regarding the breaking of the lock and theft from his plot on 05.05.1999. In order to prove the said complaint, the accused has summoned the record from the concerned office but it was reported by DW2 that the complaint filed till 2010 have been weeded out.
19. The accused has examined Sh. Ram Kishore as DW3 and he deposed that he had performed Hawan at the room of the accused in gali no. 5, Tomar Colony. In the crossexamination, DW3 deposed that he has been residing in Tomar Colony for the last 2526 years.
20. There is no witness who deposed to have seen the accused persons while encroaching upon the plot of the complainant. PW4 deposed that in the year 1999, she noticed some persons started construction on the plot of the complainant and she immediately informed to the complainant. The complainant had stated that she was informed by one person namely Gurinder Singh @ Mamaji and she was silent regarding the presence of PW4. Even PW4 had not identified the accused as the encroacher. It is more important to note that the accused Narender was the resident of the same locality where PW4 was residing. PW4 further stated that she had not informed the name of any person who had committed the trespass on the plot of the complainant.
21. PW1/complainant merely stated that the accused persons had encroached upon her plot. The modus of encroachment or trespass is not stated in her testimony. As per the complainant, she had submitted the photographs of the plot to the police. It is stated by PW1 that photographs were not got clicked by the police officials and she herself submitted the photographs. The original photographs have been destroyed and the photocopies are on record. Moreover, the photographs were not supported by the corresponding negatives. There is no reason as to why the IO had not taken the photographs of the spot.
22. The investigation was conducted in a very pathetic manner. PW11/IO deposed that he prepared the site plan at the spot at the instance of the complainant. PW1 admitted that she had not accompanied the IO SI Ram Murthi to the spot. PW1 deposed that on the same day she had accompanied the police officials to her plot for identification. PW1 also deposed that the site plan was prepared at her instance. In the view of the aforementioned fact it appears that the some police official other then the IO had prepared the site plan or the IO had prepared the site plan at the police station and not at the spot.
23. It came on record during the investigation that the land in khasara no. 5/8, 5/9 and 5/10 belong to Bishambher, Vijay Singh and Rajbir. The complainant had submitted the sale deed of the plot in khasara no. 5/9 allegedly executed by Mahender Singh. The IO did not verify the chain which make Mahender Singh entitle to execute the sale deed in favour of the complainant. Admittedly, the IO failed to examine the aforementioned Mahender Singh during the investigation. IO stated in the cross examination that Mahender Singh could not be traced out despite his best efforts.
24. Without prejudice to the rights of the parties in a civil litigation, the court is of the view that the prosecution failed to establish that the complainant was in actual possession of the plot in question at the time of the incident. Since there were no specific demarcation of the plots in the particular khasara number and also the plot in question was not demarcated by the Revenue official, therefore, it is not possible to establish that the accused was in the possession of the plot in khasara no. 5/9. The defence of the accused that he was in possession of the plot falling in Khasara no. 5/10 which he had purchased from coaccused Narender appears to be more probable.
25. In order to attract the provision u/s 448 IPC. The prosecution has to established that accused persons had unlawfully interfered in the possession of the rightful person. There is no evidence on the record to establish the possession of the complainant on the day of incident. It is admitted by the IO that the demarcation of the alleged plot was not established. Further, there is also no evidence to the fact that accused persons has entered into the plot of the complainant. The actus rea in the offence of criminal trespass is unlawful entry on the property in possession of other person. There is no evidence to prove the factum of entry by the accused person.
26. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
27. The prosecution could not establish the act of trespass alleged to committed by accused persons. Considering the facts and circumstance, the court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. In view of the above discussion and materials available on record, I am of the considered view that charge against the accused persons U/s 447 IPC is not proved by the prosecution beyond reasonable doubt. Hence, accused persons are acquitted for the offence U/s 448 of The Indian Penal Code.
Pronounced in open court (PAWAN KUMAR)
on 13.02.2017. MM02 (Central): Tis Hazari Courts:
New Delhi: 13.02.2017