Delhi District Court
Smt. Shakeela vs State on 5 March, 2012
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE-02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
CA No.25/11
Unique ID No.02402R0116992011
Smt. Shakeela, W/o Sh. Ahmed,
Presently residing at B-24,
Kabir Nagar, Gali No.4,
Bara Madrsa, Shahdara, Delhi. .....Appellant.
Versus
1.State, NCT of Delhi.
2.Mohd. Arman, S/o Mohd. Sultan,
R/o E-14, Gali No.8,
New Kardampuri, Shahdara, Delhi.
3.Kala Babu @ Abdul Nabi,
S/o Shri Mohd. Nabi,
R/o Gali No.4, 4-New Kardam Puri,
Shahdara, Delhi.
4.Smt. Jano, W/o Mohd. Tarikh,
R/o Gali No.10, New Kardampuri,
Shahdara, Delhi.
5.Smt. Rani, W/o Shri Arman,
R/o E-14, Gali No.8,
New Kardampuri, Shahdara, Delhi. .....Respondents.
JUDGMENT
1. Aggrieved by the judgment dated 20.03.2011 passed by Ld. Metropolitan Magistrate, Karkardooma Courts Delhi, in a case bearing FIR No.320/97 PS Shahdara titled as State Vs. Mohd, Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 1 of pages 13 Arman Etc., whereby the accused persons (respondents no.2 to 5 herein) were acquitted by Ld. Trial Court, the appellant (complainant) has preferred the present appeal on 19.04.2011.
2. Facts in brief (as noticed by Ld. Trial Court) are that in the intervening night of 22/23.06.1997 at unknown time at E-14, Kardampuri, Gali No.14, Delhi all the accused persons namely Arman, Abdul Nabi, Janno and Rani (respondents no.2 to 4 herein) in furtherance of their common intention had committed house trespass after having made preparation for causing hurt to Smt. Shakeela and had caused simple injury on her person by means of sharp object and had also criminally intimidated Smt. Shakeela by threatening to kill her and had thereby committed the offences punishable under Section 448/324/506/34 IPC. On the complaint of complainant Shakeela, a rukka was prepared on which the present FIR was registered against the accused persons. Accused Arman (respondent no.1 herein) was arrested in this case and thereafter released on bail by court orders being involved in a non bailable offence and other accused persons were summoned by the Court and were later on directed to be released on bail. After completion of Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 2 of pages 13 investigation, charge sheet was filed against the accused persons. Cognizance of the offence was taken against them by the Ld. Trial Court and accused were summoned to face trial.
Charge for an offence punishable under Section 448/506/324/34 IPC was framed against the accused persons on 28.03.2011 to which they had pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined complainant/appellant herein as PW-1 and besides her as many as six other witnesses namely Dr. Poonam Yadav, Ct. Sarfaraz, Ct. Subhash, HC Ramesh Chander and Insp. Ravinder Kumar were also examined by the prosecution as PW-2, PW-3, PW-4, PW-5 & PW-6 respectively. Then after closing the prosecution evidence, statements of accused persons (respondents no.2 to 5 herein) U/s 313 Cr.P.C were recorded but no evidence was led on behalf of accused persons. Then after hearing the arguments advanced by both the sides, the impugned judgment was passed by the Ld. Trial Court, which have been challenged by the appellant/complainant on the following grounds:-
(i). Ld. Trial Court has failed to appreciate that the cross examination was stopped before the Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 3 of pages 13 conclusion. The appellant has been cross examined in detail on two dates and the detail cross examination has been done of the appellant and no vague reply has been given by the appellant. When the appellant has been examined in length which is showing seven pages then, it can not be said that the appellant/complainant is giving the vague and evasive reply. The witness has been not deferred but the Ld. Trial Court has himself closed the cross examination.
It is not the fault of the witnesses and when the seven pages have been continuously examined then how it can be said that the witness is not co-operating, so the Ld. Trial Court has wrongly held that the testimony of the witness is not admissible.
(ii). Ld. Trial Court has to appreciate regarding the dispossession of the appellant from the premises in question and the witness has clearly mentioned in the cross examination that the appellant remained in possession of the property bearing no.427-428, for about 7/8 years prior to this date and she has also stated regarding her dis-possession and beatings that it was about 15/30 days prior to Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 4 of pages 13 date when the said FIR bearing no.320/97 was registered at PS Shahdara, Delhi and she has also stated that she was also beaten by the accused before dis-possessing her and it was the same date as pertain the same incidents in respect of which the said FIR bearing no. 320/97 was registered and she stated that I was alone and I was not accompanied by any one on the date when she was dis-possessed and due to this it is clear that the appellant has been dis-possessed from the premises in question and the Ld. Trial court also failed to appreciate that the statement of the accused has been recorded where all of them have been shown their possession so it is clear that the accused persons were not in possession of the premises when they have got no right, title or interest to live in any manner in the said premises from which the appellant has been dis-possessed.
(iii).Ld. Trial Court stated that none of the documents placed by the appellant which can confirm any right upon her in respect of the said premises in question. But the Ld. Trial Court has failed to appreciate that the documents have been exhibited i.e. Ex.P-5, Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 5 of pages 13 the judgment passed by Sh. K.S. Pal, the then ACMM, Karkardooma Courts, Delhi on 30.01.1999 wherein it has been mentioned that the present case Mufti Rehmatullah failed to establish on record his possession in respect of the disputed plot and even he could not prove on record the documents regarding the title in respect of the plot no.E-14, Kardampuri, Shahdara, Delhi and which has been mentioned that the appellant placed on record number of documents such as photocopy of the voter list, photo copy of the ration card and voter Identity Card to prove the possession of the plot since the year, 1987 when the said plot was purchased. It is also come on record that the said Mufti Rehmatullah had filed a suit against the present appellant but that suit was dismissed in default and this fact raised the adverse effect against the said Mohd. Rehmatullah. It is also mentioned in the judgment that I am in the opinion that the accused (Shakeela) has been in possession of the disputed plot and not as a trespasser, so it is clear that the judgment is already/exhibited P-5 on record which shows the possession and ownership of Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 6 of pages 13 the appellant. Ld. Trial court failed to see the document which are regarding the said property no.427-428, Kardamupri, Shahdara, Delhi in her favour i.e. the General Power of Attorney executed in her favour on 23.02.1987 by Randhir Singh Ex.P-7 and Agreement is Ex.P-7, copy of receipt Ex.P0-9 and pass book Ex.PW1/A, Voter I Card Ex.P-2, Ration Card Ex.P-3 and copy of judgment passed by the court of Sh. K.S. Pal, the then ACMM is Ex.P-5 and group of photographs Ex.P-6 and voter list is exhibite as PO-10.
In such a manner she has also proved regarding the possession and ownership of the property but the Ld. Trial Court failed to appreciate the same and mentioned that the appellant have failed to file her document and when such documents are already on record. On the other hand the documents have been exhibited even by the accused persons i.e. Ex.PW1/D1 which is also showing the ownership and dis-possession from the property which has been relied by them. But the accused persons have not placed any documents regarding their possession.
(iv).Ld. Trial Court has failed to appreciate that Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 7 of pages 13 the charge has been framed against the accused persons under Section 448/324/506/34 IPC. The witness has been examined regarding the same i.e. the appellant and she has also stated in her cross examination that she has been beaten and the prosecution has also examined Dr. Poonam PW-2, who proved the MLC exhibited as PW2/A, wherein the details regarding the causing of the injuries to the appellant by the accused persons and the opinion are mentioned and said witness has been not cross examined by the accused persons. Thus the injuries as well as the case of trespass and also the criminal intimidation are proved on record. Regarding the criminal intimidation there is also evidence on record. The accused Arman have threatened with a country made revolver for dire consequences to the appellant and no question have been put regarding the same and it is also stated that the plot has been illegally taken by the accused persons and did not go to her plot due to fear and she has also stated that before the incidents the accused Arman used to reside in Gali No.10 and also stated that the Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 8 of pages 13 appellant was residing in plot no.427-428, Kardampuri, Shahadara, Delhi.
4. The notice of appeal was issued to the respondents, who after putting their appearance lead their arguments through counsel. Arguments were also heard from the side of appellant as well State. I have also perused the entire material placed on record particularly the impugned judgment, contents of the appeal specially the grounds taken therein as well as the record summoned from the Trial Court.
5. Ld. Trial Court, while disbelieving the story of prosecution and the appellant, had acquitted the respondents on the following counts:-
(i). since the cross examination of complainant remained unconcluded, so it is inadmissible in law. Even if its is presumed that the said unconcluded testimony can be read in evidence, even in that eventuality as well, the appellant herself had replied during her cross examination that none of the accused had thrown her out or has dispossessed her from Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 9 of pages 13 the premises.
(iii). To prove the allegations of criminal trespass, it was incumbent upon the appellant to prove her ownership in respect of the premises which was subject matter of the litigation and was stated to have been trespassed by the accused persons, but she has been failed to prove any such document.
(iv). The allegations pertaining to an offence U/Sec.506 IPC had fallen short to have been proved against the accused person beyond any reasonable doubt.
As regard to the observations of Ld. Trial Court qua the first count, I find that the same is not only misconceived but unjustified too for the reasons that the cross examination of appellant was stopped by Ld. Trial Court itself and in the circumstances when the lengthy cross examination consisting of seven pages had already taken place, the court should have made endeavor to conclude the cross examination by giving caution, warning etc. to the witness/complainant to depose Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 10 of pages 13 specifically and properly.
Further, perusal of the record reveals that in this case charges were framed against the accused person (respondents no.2 to 5) U/s 448/324/506/34 IPC but in its judgment, Ld. Trial Court had recorded its findings qua Section 448/506/34 IPC only and no finding has been recorded for the offence under Section 324 IPC. It is a lapse on the part of Ld. Trial Court as it is well settled that in a judgment, the failure on the part of Ld. Trial Court to record a findings of acquittal in respect of a particular offence would not amount to implied acquittal and in these circumstances the judgment is liable to be set aside.
In 2003 Cr.L.J 236 (HP) titled as State of H.P. Vs. Chet Ram, it has been held, "Section 354 of the Cr.P.Code makes it obligatory to the Trial Court to specifically state the offences for which the accused has either been convicted and sentenced or of which he has been acquitted. Failure on the part of the trial court to record a finding of acquittal in respect of a particular offence would not amount to implied acquittal."
In AIR 1987 SC 40 titled as State of A.P. Vs. G. Rangunayakulu it has been held, "when Trial Court did not Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 11 of pages 13 formulate separate pointed for decision and have considered together all the aspects of the offences alleged to have been committed, the judgment is liable to be set aside and the Court shall be directed to deliver a proper judgment."
6. In view of the aforesaid, the impugned judgment is liable to be set aside and the case is remanded back to Ld. Trial Court for its fresh findings on all the points to which the accused persons (respondents no.2 to 5) have been charged by before that an opportunity be given to the respondents to complete the cross examination of the complainant (appellant herein).
7. TCR alongwith the copy judgment be sent to the Ld. Trial Court for information and compliance.
8. Parties are directed to appear before Ld. Trial Court on 30.03.2011 for proceeding further in the matter as per law.
9. Appeal file be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 05.03.2012) ASJ-02 (NORTH EAST)
KKD COURTS : DELHI
Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 12 of pages 13
CA No.25/11
Shakeela Vs. State & Ors.
05.03.2012
Present: As before.
Vide a separate judgment, appeal of the appellant stands disposed off.
TCR alongwith the copy judgment be sent to the Ld. Trial Court for information and compliance.
Parties are directed to appear before Ld. Trial Court on 30.03.2012 for proceeding further in the matter as per law. Appeal file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ-02 (NE)/KKD/DELHI 05.03.2012 Shakeela Vs. State & Ors. (CA No.25/11) D.O.O. 05.03.2012 Page No. 13 of pages 13