Delhi District Court
State vs . Lala Ram & Ors. on 17 January, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTHWEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Lala Ram & Ors.
FIR No. 39/2000
PS : Uttam Nagar
U/s 441/447/506II/34 IPC
Date of Institution : 13.11.2000
Date of reserving of order : 09.01.2020
Date of Judgment : 17.01.2020
JUDGMENT
1. Serial No. of the case : 6178/2019
2. Name of the Complainant : Sh. Kailash Chand
S/o Sh. Rattan Chand
R/o 47, Dobson Road,
6th Floor, Flat no.6B,
West Bengal
3. Date of commission of offence : In January, 1999
4. Name of accused person : (1) Lala Ram(since expired) S/o Sh. Rate Ram (2) Ram Rikh S/o Sh. Jai Narain R/o A79, Bhagwati Garden Delhi (3) Om Prakash S/o Sh. Rampat WZ17, Asalat Pur, New Delhi (4) Vijay Kumar Kapoor State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 1 of 13 (since expired) S/o Sh. Bihari Lal
5. Offence charged : U/s 441/447/506II/34 IPC
6. Plea of accused : Not guilty
7. Final Order : Proceedings against Accused Lala Ram and Vijay Kumar Kapoor already abated vide order dated 03.12.2002 and 23.05.2016 respectively Accused Ram Rikh and Om Prakash are acquitted BRIEF REASONS FOR ORDER:
1. The accused have been chargesheeted for committing offences punishable under Section 448/506/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that the complainant Ramesh Dhawan had purchased the land measuring 1000 sq. situated in Khasra number 253, Village Nawada vide sale deed dated 08.09.1986, however, in January 1999, he had found some persons to be in illegal occupation of the land, who had already constructed some shops and small rooms in the said land. The complainant had thereafter submitted a complaint dated 27.01.1999 against the accused to the Hon'ble Chief Minister, Delhi through his authorized representative Kailash Chand Khanna. After preliminary inquiry, a Rukka was prepared on 20.01.2000 by IO SI Chattar Singh on the aforesaid State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 2 of 13 complaint and the present FIR U/s 448/506/34 IPC was registered at PS Uttam Nagar.
3. Thereafter, the present chargesheet was filed for offences punishable under Sections 448/506/34 IPC. Cognizance of offence was taken and accused were summoned to face trial.
4. During trial, accused Lala Ram has expired and proceedings against him were abated vide order dated 03.12.2002.
5. Copy of the chargesheet alongwith all annexures were supplied to accused Ram Rikh, Om Prakash and Vinay Kumar Kapoor in terms of Section 207 Cr.P.C.
6. After giving opportunity to state as well as accused persons for making submissions on charge, a charge for offence u/s 441 read with Section 447 IPC and 506II/34 IPC was framed against all three accused persons on 21.03.2006 to which they pleaded not guilty and claimed trial.
7. During trial of the case, accused Vinay Kumar Kapoor has also expired and proceedings against him were abated in terms of order dated 23.05.2016.
8. Prosecution has examined six witnesses in support of its case including the Complainant Sh. Kailash Chand Khanna.
9. Kailash Chand Khanna has been examined as PW1, who has deposed that one Ramesh Dhawan was the owner of the plot in question and had executed the GPA in favour of PW1 in respect of the said plot which is Ex.PW1/A. In November 1999, when PW1 visited the plot in question, he found some mud construction and cattle State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 3 of 13 alongwith 45 persons on the plot in question and when he inquired from them about the purpose of their being in the plot in question, they used unparliamentary language against PW1 and asked him to leave. Thereafter, the complainant had made a complaint to Chief Minister Delhi on 27.01.1999 which is Ex.PW1/B.
10. Sh. Rajneesh Khanna (son of complainant) has also been examined as PW2, who has deposed that in the month of January 1999, he alongwith his father Sh.Kailash Chand Khanna went to the property in question being the power of attorney holders for looking after the property and found 45 persons inside the property including the accused. Having been questioned by the father of PW2, the accused threatened PW1 to leave failing which he would be killed.
11. DO HC Naresh Kumar, was examined by the prosecution as PW3 and he has proved the copy of FIR no.39/2000 as Ex. PW3/A and his endorsement on rukka as Ex. PW3/B.
12. Sh. Ramesh Dhawan, the alleged owner of the property in question, has been examined as PW4 and he deposed having purchased the land in question through registered sale deed dated 08.09.1986 Ex.PW4/A from Sh.Rang Singh and having executed the power of attorney Ex.PW1/A in favour of Kailash Khanna. He deposed that in January 1999, he came to know about the illegal occupation of the aforesaid property by the accused in conspiracy with each other whereafter he made a complaint Ex.PW1/B through his attorney and visited the plot requesting the accused to vacate the property who refused to vacate the same.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 4 of 13
13. Constable Rajesh Kumar, who had allegedly accompanied IO SI Chattar Singh to the place of incident on 20.01.2000, got the FIR registered at PS Uttam Nagar and subsequently accompanied the IO during investigation, has been examined as PW5. He has proved personal search memo of accused Lala Ram and Ram Rikh as Ex. PW5/A and Ex. PW5/B respectively.
14. Inspector Chattar Singh, IO of case pertaining to FIR No. 39/2000 PS Uttam Nagar, has been examined as PW6. He has proved site plan Ex. PW6/A, tehrir Ex. PW6/B, arrest memo of accused Ram Rikh Ex. PW6/C and personal search memo of accused Om Prakash and Vinay Kumar Ex. PW6/D & Ex.PW6/E respectively.
15. All PWs except PW3 & PW5 were duly crossexamined by Ld. Counsels for accused persons. All the material prosecution witnesses were examined and thereafter, PE was closed vide order dated 19.12.2014.
16. Thereafter, Statements of accused Ram Rikh and Vinay Kumar Kapoor U/s 313 Cr.P.C were recorded on 02.02.2015 and statement of accused Om Prakash u/s 313 Cr.P.C was recorded on 21.04.2015 after putting entire incriminating evidence to them. Accused persons submitted that they have been falsely implicated in the present case. Accused Om Prakash has stated that he had purchased the property in the year 1991 and Kailash Chand had never met him before registration of this case. Accused Ram Rikh has stated that he had purchased the property from Om Prakash and Vinay Kapoor whereas accused Vinay Kumar Kapoor has stated that he has been falsely State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 5 of 13 implicated by the complainant who is his distant relative and there was some family dispute between them.
17. Though, all the accused chose to lead evidence in their defence, however, no evidence was led by them despite opportunity. It has already been observed hereinabove that during trial, accused Vinay Kumar Kapoor has expired and proceedings against him were also abated vide order dated 23.05.2016.
18. Final arguments were thereafter heard on behalf of state as well as accused Ram Rikh and Om Prakash.
19. It is submitted by Ld. APP for the State that prosecution has been able to prove its case beyond reasonable doubts through the uncontroverted testimonies of PW1 to PW6 and hence, the accused are liable for conviction for the offence u/s 447/506II/34 IPC with which they have been charged.
20. On the other hand, it is submitted by counsel for accused persons that the accused have been falsely implicated in the present case which is apparent from the fact that the case of prosecution is shrouded with suspicion and fraught with contradictions. He submits that the manner of giving the complaint which is in the name of Ramesh Dhawan and is bearing the signatures of his alleged attorney Kailash Chand Khanna renders the case of prosecution doubtful. He submits that prosecution has failed to explain as to why there is delay of one year in registration of FIR by the police.
21. He submits that the presence of prosecution witnesses at the place of incident is doubtful in view of the contradictions in the State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 6 of 13 testimonies of PW1, PW2 and PW4. He submits that in view of the fact that all the witnesses are permanent resident of Kolkatta, there was no occasion for them to come to Delhi on the alleged time of incident. He submits that the investigation in the present case is completely faulty and there appears to be manipulation in the chargesheet. He submits that the contradiction in the testimony of PW2 visavis the statement of Ramesh Dhawan u/s 161 CrPC regarding age of Ramesh Dhawan casts serious doubts about the veracity of statement of PW2. Besides, according to him, PW2 has admitted during his cross examination that his father is ill since 1993 and hence, considering his age and medical condition, there was no occasion for him to visit Delhi in the year 1999. He submits that the prosecution has failed to specify the role of each of the accused. Besides, according to him, as per the case of prosecution, the plot in question was not clearly identifiable and no demarcation report has been filed by the IO or any of the witnesses.
22. Besides, according to PW1 and PW2 when they allegedly visited the plot in question in 1999, they found construction on the plot of shops and rooms. He submits that there is no explanation on the part of complainant as to why no civil suit for eviction had been filed by the complainant against the accused. He submits that during his cross examination PW1 has admitted that he is not keeping good health and hence, his visit to the Delhi become doubtful. He submits that the testimony of PW1 and PW4 could not be withstood the test of cross examination.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 7 of 13
23. So far as the charge u/s 441 read with Section 447 IPC is concerned, according to him, the accused are liable to be acquitted of the said charge since the ingredients of the said section has not been fulfilled by the prosecution. Similar, according to him, is the case with charge u/s 506II/34 IPC. He has thus prayed for acquittal of both the accused of all the charges while relying upon the judgment of Hon'ble Delhi High Court in 2007 (93) DRJ 307 and judgment of Hon'ble Supreme Court in Smt. Kanwal Sood Vs. Nawal Kishore and Anr. (1983) 3 SCC 25.
24. Complainant has also filed written arguments alleging that the prosecution has been proved its case beyond reasonable doubts, in as much as, the accused have failed to produce any document in support of their title over the plot in question. It is submitted on behalf of complainant that the very fact that the accused have failed to lead any evidence in their defence despite seeking time to lead the same goes on to prove that they have no defence to the case of prosecution. He has thus prayed for convict of the accused and maximum punishment.
25. I have heard the submissions made on behalf of the parties and have also perused the record.
26. So far as charge u/s 441 read with Section 447 IPC is concerned, it has been authoritative held by Hon'ble Delhi High Court in State (Delhi Administration) Vs. Mahinder Singh 2007 (93) DRJ 307 that before a person can be convicted for an offence of criminal house trespass, the prosecution must prove that house alleged to be State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 8 of 13 trespassed by the accused was in possession of the complainant/victim of the incident. In the case in hand, prosecution has failed to prove the actual physical possession of complainant as on the date of alleged house trespass by the accused persons.
27. It is significant to note that the complaint dated 27.01.1999 submitted to the Hon'ble Chief Minister, Delhi, though, was in the name of PW4 Ramesh Dhawan, however, the same has not been signed by Ramesh Dhawan and it has been signed by PW1 Kailash Chand Khanna as an attorney of Ramesh Dhawan. Admittedly, Ramesh Dhawan had not visited the property in question on the date of alleged incident. From the testimony of PW1, it appears that he alone had visited the plot in question on the date of incident, however, subsequently, the prosecution has also examined PW2 who is the son of complainant who had claimed that he had also accompanied his father being the attorney holder of Ramesh Dhawan alongwith his father.
28. The prosecution has relied upon the power of attorney Ex.PW 1/A which is in the joint names of PW1 and PW2, though, it does not bear the signatures of either of them. It is significant to note that the said attorney is dated 16.11.1998 and the complaint has been submitted by Kailash Chand Khanna to Chief Minister of Delhi on 27.01.1999. He had failed to disclose the date of his visit to the property in question in his complaint Ex.PW4/B. However, in his examination in chief, he has deposed that he had visited the property in question in November 1999. It is difficult to comprehend for the court State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 9 of 13 as to how the complainant could have made the complaint to the Chief Minister on 27.01.1999, if he had visited the property in question in November 1999. Admittedly, he has not made any police complaint nor has he made any PCR call immediately after the incident.
29. Moreover, during his first visit to the property in question after execution of the alleged power of attorney by Ramesh Dhawan, PW1 had found that the property in question was already constructed and the accused were occupying the same. Meaning thereby, neither the PW1 nor PW4 was in actual physical possession of the property in question at that time. Thus, the accused cannot be convicted for the offence u/s 441 read with Section 447 IPC, more so, when it is not the case of complainant that the accused having lawfully come in possession of the suit property unlawfully remained their with intent to intimidate, insult or annoy the complainant or with intent to commit any offence.
30. There is another reason why the prosecution has failed to prove the charge u/s 441 read with Section 447 IPC against the accused i.e. the prosecution has failed to prove that the trespass allegedly committed by accused into the property of PW4 was with an intent to commit any offence. It has been authoritatively held by Hon'ble Supreme Court in Kanwal Sood's case (Supra) that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC and in order to satisfy the condition of Section 441 IPC, it must be established that the trespasser entered into the property with an intent to commit an offence, however, there is no allegation by the State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 10 of 13 complainant against the accused regarding such intent, much less, is there any evidence led by the prosecution to prove such intent on the part of accused persons. Under the aforesaid circumstances, even if it is assumed for the sake of arguments that the accused were trespassers in the property in question, they cannot be held guilty of offence u/s 441 read with Section 447 IPC in the absence of proof of requisite intent to commit an offence or to annoy or insult the complainant.
31. It is significant to note that the prosecution witnesses have claimed the property in question to be plot No.79, Bhagwati Garden Extension, however, the said description does not match with the description of the property which was the subject matter of the sale deed. Prosecution has failed to prove any demarcation report in respect of the property in question.
32. Under the aforesaid circumstances, accused are liable to be acquitted of the charge u/s 441 read with Section 447 and 34 IPC.
33. So far as the charge u/s 506II/34 IPC is concerned, in my considered opinion, the prosecution has failed to prove the necessary ingredients even for the said offence. It is significant to note that in the complaint dated 27.01.1999, complainant has vaguely alleged that the persons occupying the property in question advised the complaint to leave the place at once failing which he would have to face dire consequences which he could not even dream. The complaint has failed to give the date of the alleged threat in his complaint to the Chief Minister. Admittedly, he has not made any PCR call and if we go by the testimony of PW1 that he had visited the property in question in State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 11 of 13 November 1999, it is apparent that there was no occasion for him to make the complaint dated 27.01.1999 regarding the same. No other police complaint has been proved by the prosecution regarding the alleged intimidation, meaning thereby, no alarm was caused by the alleged threat to the complainant nor any such intent has been proved by the prosecution on the part of accused persons.
34. Even otherwise, in his deposition dated 17.03.2007, PW1 has merely deposed that the accused had used unparliamentary language when he questioned them about their presence in the property in question which is not sufficient to bring home the charge u/s 506/34 IPC against the accused, much less, the charge u/s 506II/34 IPC.
35. So far as the testimony of PW2 regarding the threat allegedly given by accused to his father to kill the father of PW2 is concerned, the same cannot form the basis of conviction of accused for the charge u/s 506II/34 IPC, in as much as, there is no whisper in the entire testimony of PW1 that PW2 was also accompanying PW1 on the date of alleged incident. It is highly improbable that PW4 would have executed power of attorney in favour of PW1 to look after the property who was not keeping good health and was permanent resident of Kolkatta. In view of the contradiction in the testimonies of PW1 and PW2, the presence of either of them at the time of alleged incident at the property in question is doubtful.
36. It has been authoritative held by Hon'ble Delhi High Court as well as Hon'ble Supreme Court in number of cases that to hold an accused guilty of offence u/s 506 IPC, the threat given by the accused State Vs. Lala Ram & Ors.
FIR No.39/2000 P.S. Uttam Nagar Judgment dated 17.01.2020 Page No. 12 of 13 to the victim should be with an intent to cause alarm to the complainant. In the case in hand, there is not even an iota of evidence led by the prosecution that the complainant was threatened by any of the accused, much less, he was threatened with an intent to cause alarm to the complainant. The accused are thus entitled to be acquitted even of the charge u/s 506II/34 IPC.
37. No doubt, the accused have failed to lead any evidence in their defence and to prove their title in respect of the suit property, however, in view of the settled legal position that the case of prosecution must stand on its own legs, the prosecution cannot be permitted to take the benefit of deficiencies, if any, in the case of accused.
38. In view of the aforesaid discussion, both the accused are hereby acquitted of the charge u/s 441 read with Section 447 and34 IPC and Section 506II/34 IPC.
39. Accused have already furnished personal bonds and surety bonds in sum of Rs.10,000/ each in terms of Section 437A Cr.P.C. on 09.01.2020 which shall remain in force for a period of six months from today.
40. Ordered Accordingly.
Pronounced in the open court on this 17th day of January, 2020. This judgment consists of 13 signed pages.
(ARUN KUMAR GARG) Additional Chief Metropolitan Magistrate Dwarka Courts: New State Vs. Lala Ram & Ors.
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