Delhi District Court
2.Title Of The Case: : State vs Dalraj Dhankar & Ors. on 16 July, 2022
IN THE COURT OF ASHWANI PANWAR
METROPOLITAN MAGISTRATE-I (SOUTH)
SAKET COURTS, DELHI
1.Cr Case No. : 2039943/2016
2.Title of the case: : State Vs Dalraj Dhankar & Ors.
FIR No. 2617/2014, PS Mehrauli
3. Date of institution : 16.12.2016
4. Date of reserving Judgment : 13.07.2022
5. Date of pronouncement : 16.07.2022
JUDGMENT :
(a) The date of commission 31.10.2014
(b) The name of complainant Deputy Commissioner, MCD,
South Zone, Green Park
extention, New Delhi
(c) The name of accused 1. Dalraj Dhankar, S/o Sh.
Goverdhan, R/o House No. 350,
Forest Lane, Neb Sarai, New
Delhi
2. Naresh Panwar, S/o Sh.
Narender Panwar, R/o House No.
366/3-4, Shahpur Jat, New Delhi.
3. Mahesh Panwar, S/o Sh.
Narender Panwar, R/o House No.
366/3-4, Shahpur Jat, New Delhi.
4. Rakesh Panwar, S/o Sh.
Narender Panwar, R/o House No.
366, Shahpur Jat, New Delhi.
5. Renu Bala, W/o Sh.
Dharmender Panwar, R/o House
No. 366, Shahpur Jat, New Delhi.
(d) The offence complained of 188/447/451/120B IPC & 461
DMC Act
State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 1 of 8
(e) The plea of the accused Not guilty
(f) The final order Acquitted
(g) The date of such order 16.07.2022
THE BRIEF REASONS FOR THE JUDGMENT:-
1. As per Prosecution, on 31.10.2014 at unknown time at property adjoining to C-37, Freedom Fighter Colony, Saidulajab, New Delhi within the jurisdiction of PS Mehrauli, all the accused persons were found carrying finishing work after tempering with the seal, which was affixed on 01.10.2014 by South Delhi Municipal Corporation under the order of Deputy Commissioner, South Zone. Further, all the accused persons criminally trespassed with an intention to make unauthorised construction at the above mentioned property which was sealed on 01.10.2014 by SDMC under the order of Deputy Commissioner South Zone in pursuance of criminal conspiracy with each other and thereby, committed offences punishable under Section 188/447/451/120B of the Indian Penal Code, 1860 (hereinafter referred to as IPC) & 461 of the Delhi Municipal Corporation Act (hereinafter referred to as DMC Act). After completion of the investigation, charge sheet was prepared and filed in the Court.
2. On the basis of the aforesaid charge sheet and annexed documents, cognizance was taken vide order dated 06.02.2017 and the accused persons were summoned to face trial. On appearance of the accused persons, provision of Section 207 of the Criminal Procedure Code (hereinafter referred to as "the Code") was complied with and after hearing the arguments, notice u/s 251 of the Code for the offence punishable under Section 188/447/451/120-B of IPC State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 2 of 8 & Section 461 of the DMC Act was framed and served upon the accused persons Dalraj Dhankar, Rakesh Panwar, Naresh Panwar, Mahesh Panwar and Renu Bala to which the accused persons pleaded "Not Guilty" and claimed trial.
3. In order to prove its case, prosecution examined three witnesses to substantiate the accusations against the accused persons.
4. PW-1 is Sh. Sanjeev Kumar, JE, South Zone, SDMC. PW-1 deposed in his testimony that during the inspection of the area on 31.10.2014 in compliance of the directions of Higher authorities it has been found that seal which was affixed by the department on 01.10.2014 under the orders of Deputy Commissioner, South Zone, SDMC bearing no. 956/Seal/DC/Building/2014 was found tempered. Therefore he reported the matter to higher authorities to get the FIR registered against the owner/occupier/builder vide report Ex. PW1/A. On calling by the IO, he visited the site and shown the property to the IO and at his instance IO prepared the site plan of the spot. He proved the site plan as Ex. PW1/B.
5. PW-2 is ASI Yogesh Pal. He deposed that on 15.12.2014 pursuant to the complaint of SDMC, SHO, PS Mehrauli registered the present FIR and investigation of the said case was marked to him. Within one week, he got transferred from PS Mehrauli to PS Saket. He handed over the present file to MHC(R), PS Mehrauli.
6. PW-3 is ASI Aamir Khan. He deposed that on 01.10.2015 the present file State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 3 of 8 was marked to him for further investigation and on 31.12.2015 he wrote a letter to SDMC for obtaining certified copy of UC file regarding unauthorised construction. He proved the letter written to SDMC as Mark A. Thereafter he obtained the certified copy of the same and proved the same as Ex. PW3/A (colly) running from 1 to 8 pages. He further deposed that on 18.01.2016 he called JE Sh. Sanjeev Kumar at the spot and got inspected the property in question. Thereafter site plan was prepared at the instance of JE Sh. Sanjeev Kumar and his statement under Section 161 Cr. P.C. was recorded. He proved the same as already Ex. PW1/B. He further deposed that on 09.02.2016 he sent a notice under Section 160 Cr. P.C. to accused Dalraj Dhankar and proved the same as Mark B. Thereafter accused Dalraj Dhankar was interrogated and his disclosure statement was recorded. In his disclosure, it is stated by him that the alleged property was constructed in collaboration with other accused persons namely Naresh Panwar, Mahesh Panwar, Rakesh Panwar and Renu Bala. He proved the disclosure statement as Ex. PW3/B. He further deposed that the accused persons produced the collaboration agreement and proved its seizure memo as Ex. PW3/C. He proved arrest memo of accused Dalraj Dhankar as Ex. PW3/D. He deposed that since the offence was bailable, the accused was released on police bail. He further deposed that on 06.10.2016 notice was served upon other accused persons namely Naresh Panwar, Mahesh Panwar, Rakesh Panwar and Renu Bala and upon which the said accused persons made themselves present at the alleged property and later on interrogated by him. He proved the pointing out memo as Ex. PW3/E. Thereafter notice under Section 91 Cr. P.C. was served upon the accused persons to which the accused persons produced the property documents. He proved seizure memo of the property documents as Ex. PW3/F. He proved the State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 4 of 8 disclosure statement of accused persons namely Rakesh Panwar, Naresh Panwar, Mahesh Panwar and Renu Bala as Ex. PW3/G to Ex PW3/J. Thereafter accused persons namely Rakesh Panwar, Naresh Panwar, Mahesh Panwar and Renu Bala were served upon notice under Section 41(A) Cr. P.C., they were bound down and released. Thereafter permission under Section 467 of DMC Act was obtained and permission under Section 195 Cr. P.C. for the purpose of section 188 IPC was obtained. After having discussion with the SHO concerned, additional sections i.e. Section 451/120B IPC were added.
7. During the trial of the case, the accused persons admitted the complaint as Ex. AD1, FIR No. 2617/2014 as Ex. AD2, Certificate under Section 65B Evidence Act as Ex. AD3, endorsement on rukka as Ex. AD4, permission under Section 195 Cr. P.C as Ex. AD5 & permission under section 467 DMC Act as Ex. AD6, in statement recorded under Section 294 Cr. P.C. r.w. 281 Cr. P.C.
8. Thereafter, the prosecution evidence was closed as no other witness was examined by the prosecution and statements of the accused persons were recorded under Section 313 of the code. The accused persons submitted that they have not done any unauthorised construction and further they have been falsely implicated in the present case. The accused persons did not lead any evidence in their defence.
9. During the course of final arguments, it was argued by Ld. APP for the State that the prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant sections are complete and the accused persons be convicted. On the other hand, Ld. Counsel for the accused persons has argued State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 5 of 8 that the accused persons have been falsely implicated in the present case and the prosecution has miserably failed to prove its case beyond reasonable doubts. I have carefully heard the submissions of the Ld. APP for the State and the Ld. Counsel for the accused persons and have perused the entire evidence on record.
10.In order to prove its case the prosecution was required to prove that the accused persons in pursuance of the criminal conspiracy tempered with the seal affixed by the Department and committed criminal trespass with intention to make unauthorised construction at the above mentioned property.
11.Now let us see whether the prosecution has been able to prove the abovementioned allegations against the accused persons beyond reasonable doubt.
12.Perusal of the record file reveals that in all the documents relied upon and proved by the prosecution i.e. Ex. PW1/A & Ex. PW3/A (colly), the name of the owner/builder/occupier qua the property in question has not been mentioned by the Department. This fact raises strong doubt regarding the involvement of the accused persons in the alleged offences. Further, there is no direct evidence on record to establish that the accused persons desealed the property in question and trespassed into. Though it has been mentioned that owner/builder/occupier of the property is carrying finishing work after tempering with the seals affixed by the Department during the routine inspection conducted on 31.10.2014, however it has not been proved as to who was found in possession of the property at that time or who was carrying State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 6 of 8 out the finishing work or who had committed the offence of desealing the property.
No photograph showing any property number or the accused persons carrying out unauthorised construction has been placed on record by the prosecution. Further, when specific question was asked in this regard, PW-3 ASI Amir Khan deposed that he had not taken any photographs at the spot. Here, it is pertinent to mention that it was also deposed that he did not make any independent witness at the property in question and that he did not record statement of any other occupants of the building.
13.The present FIR was registered on the complaint of Deputy Commissioner, South Zone however the prosecution has failed to examine the complainant in the present matter. Further more, Ex. PW1/B is a site plan and it is pertinent to note that the perusal of the site plan does not reveal that after desealing the property any finishing work as alleged was being carried out by the accused persons. It merely shows the location of the alleged property. Further, the said site plan does not bear the signatures of any public witness and accordingly, does not lend any credence to the allegations made against the accused persons. Further, it is noteworthy that though it is alleged in the complaint Ex. AD-1 that the owner/builder/occupier were carrying out finishing work after tempering with the seal affixed by the Department however none of the prosecution witnesses have deposed to this effect. There is no material on record to show that the accused persons were found in possession of the property on or after 31.10.2014, leave alone, talking about the unauthorised construction raised by the accused persons at the property in question.
14.The prosecution is under the obligation to prove the case against the accused State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 7 of 8 beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal preposition that the benefit of doubt must go in favour of the accused as the presumption of innocence lies in favour of the accused right from the first time he appears before the court and until the stage of the judgment. Keeping in view the material available on record against the accused persons, the testimony of the prosecution witnesses, failure of the prosecution to examine the complainant i.e. Deputy Commissioner, South Zone, the insufficiency of the documents and the absence of the photographs qua the unauthorised construction and the desealing by the accused persons, this court thinks it fit to give benefit of doubt to the accused persons on account of failure of the prosecution to prove its case beyond reasonable doubt.
15. In view of the above discussion, this Court is of the view that prosecution has miserably failed to substantiate the allegations for the offence punishable under Section 188/447/451/120B IPC & 461 DMC Act. Accordingly, the accused persons namely Dalraj Dhankar, Naresh Panwar, Mahesh Panwar, Rakesh Panwar and Renu Bala are acquitted of all the charges levelled against them. Digitally signed by ASHWANI ASHWANI PANWAR PANWAR Date: 2022.07.16 15:57:40 +0530 Announced in the open court (ASHWANI PANWAR) on 16.07.2022 METROPOLITAN MAGISTRATE-01 SOUTH, SAKET COURT, NEW DELHI State v Dalraj Dhankar & Ors. FIR No. 2617/2014 Page 8 of 8