Delhi District Court
State vs Ram Kumar on 22 January, 2024
IN THE COURT OF MS. VIDHI GUPTA ANAND, CHIEF
METROPOLITAN MAGISTRATE, SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI.
CNR No.DLSH020010942008
CIS No. 83174/2016
FIR No. 35/2008
PS Vivek Vihar
U/s 419/448 IPC
JUDGMENT U/S 355 Cr.PC
a Serial No. of the case : FIR No. 35/2008
PS Shahdara
b Date of the commission of the : Unknown
offence
c Name of the Complainant : Sh. Suresh Goel
d Name of Accused person and : Sh. Ram Kumar Goel
his parentage and residence S/o Late Sh. Kanshi
Ram
R/o Flat no. 16,
Swayam Sewa Group,
Housing Society,
Jhilmil Colony, Delhi.
e Offence complained of : 419/448 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 02.01.2024
i Order pronounced on : 22.01.2024
BRIEF FACTS AND REASONS FOR DECISION:-
FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 1 of 12
1. The case of the Prosecution is that on unknown date and time in the year 2008, Accused Ram Kumar Goyal, dishonestly impersonated to be the owner of flat no. 5, Swayam Sewa Co- Operative Group Housing Society, Jhilmil, Delhi, belonging to one Suresh Goel (Complainant) and entered the same by breaking open its locks and stealing the articles kept therein and let out the same to Sanjay Kumar and Rakesh Kumar (as tenants) and thus, committed punishable offences under the IPC.
Thus, a case was registered against the Accused namely Ram Kumar Goyal U/s 380/448 IPC upon an application of the complainant u/s 156 (3) Cr.PC.
2. Upon completion of investigation, charge-sheet was filed in the Court on 07.05.2008 and on the same day itself cognizance of the alleged offences was taken and Accused Ram Kumar Goyal was summoned in the Court. After bail proceedings, documents were supplied to the Accused U/s 207 Cr.PC.
3. Thereafter, on 21.02.2014 after hearing arguments on point of charge, it was held that prima facie case was made out against the Accused Ram Kumar Goyal for offences punishable under Section U/s 419/448 IPC. Charges were accordingly framed against the Accused, to which he pleaded not guilty and claimed trial.
Thereafter, the matter was listed for recording of Prosecution FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 2 of 12 evidence.
4. To prove its case, the Prosecution examined four witnesses whose testimonies are discussed in the following paragraphs:-
4.1. PW1: Sh. Suresh Goyal: He is the star witness to this case as the only other public witness examined in this case has turned hostile to the Prosecution case. He deposed that he was the owner of two flats having no. 5 and 23 at Swayam Sewa Housing Society (Triveni Apartment), Jhilmil Colony and the said flats were purchased by him in the year 2003. He further stated that he was also having flat number 16 in the same apartment in which Accused Ram Kumar was earlier residing as a tenant, however, at present the same was in his own possession. He stated that he had never given flat no.5 and 23, Triveni apartment to Accused Ram Kumar and rather on 18.09.2007, he had given a written complaint to Inspector Vigilance in this regard.
He further deposed that on 16.01.2018, two persons namely Sanjay and Rakesh met him and told him that Accused Ram Kumar had given the abovesaid two flats on rent to them and told them that he was the owner of the abovesaid two flats (flat no. 5 & 23). He stated that he started taking monthly rent from said Sanjay and Rakesh against the abovesaid two flats and informed at PS Vivek Vihar that Accused had given his two flats to Sanjay and Rakesh after breaking the locks of the gate and removing the articles. He exhibited his complaint given to PS Vivek Vihar against Accused Ram Kumar on 19.01.2008 as Ex.PW1/A. He further stated that he had filed a Civil Suit against the abovesaid two flats no. 5 and 23 FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 3 of 12 and order of decree has already been passed in his favour.
Further, he exhibited on record the site plan prepared by the police as Ex.PW1/B, photocopies of GPA of Flat No.5 and 23 as Ex. PW1/C (OSR) & Ex. PW1/D (OSR) respectively and list of stolen articles from Flat No.5 and 23, Triveni Apartment, Jhilmil as Ex.PW1/E. He correctly identified Accused Ram Kumar in the court.
During his cross examination, he admitted that he knew the Accused Ram Kumar since last 20 years and added that the Accused is a property dealer who used to sell and purchase property on behalf of the complainant. He admitted it to be correct that he had never resided in flat no. 5, 23 and 16 of Triveni Apartment. Even though, he denied the suggestion that possession of any of these flats was never with him, he stated that he had possession always on paper. Further, he admitted it to be correct that he had no title document/sale deed in his favour in respect of flat no. 5, 16 and 23 of Triveni Apartment, though, he added that he had registered general power of attorney, special power of attorney and registered will from the concerned quarters with respect to flat no. 5 and 23 of Triveni Apartment. Also, during his further cross examination, he could not produced the allotment letter of flat no.5, 16 and 23 to its principal allotee.
Lastly, he denied all the suggestions of Ld. Counsel for Accused with respect to the false implication of Accused in this matter or that he was deposing falsely.
FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 4 of 12 4.2. PW2: SI Raj Pal Singh: He was a formal witness to the case and deposed regarding registration of FIR No. 35/2008 and exhibited the same as Ex. PW2/A. He also exhibited the endorsement made on the complaint given by the complainant as Ex. PW2/B. 4.3. PW3 Ritika Mishra: She deposed that in the year 2008, she was residing at H.No.24, Triveni Apartment, Jhilmil Colony, Delhi and added that she has no knowledge about the present case. She stated that she knew the Accused Ram Kumar as she was living in the same apartment. She denied her statement u/s 161 Cr.P.C i.e. Mark X which was put to her by Ld. APP for the State. Thus, nothing material was brought on record by the testimony of this witness.
4.4. PW4: Inspector Ashok Kumar. He was the first IO of this matter and stated that on 13.02.2008, the investigation of the present matter was handed over to him by the concerned SHO and on the same day itself, he had recorded statements of two witnesses U/s 161 Cr.PC namely Ritika Mishra and Sanjay Singh. He further stated that after a few days he was transferred out and he could not conduct any further investigation in this matter.
4.5. It is pertinent to note that apart from the above mentioned witnesses, Prosecution had also listed public witnesses namely Rakesh and Sanjay in the list of witnesses, however, despite several efforts Prosecution could not secure their presence before the court FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 5 of 12 and hence, they were dropped from the list of witnesses vide order dated 19.03.2021.
Further, the second IO of this matter i.e. Inspector Ashok Kumar, then posted with DIU/East, also could not be examined in the court on account of his demise and thus, he was also dropped from list of witnesses vide order dated 02.01.2024.
Thus, out of seven witnesses cited in the list of witnesses by Prosecution, only four were examined in the court. After examination of the aforesaid four Prosecution witnesses, vide order dt. 02.01.2024, Prosecution evidence was closed.
5. On 02.01.2024 itself, statement of the Accused U/s 313 r/w Section 281 Cr.PC was recorded wherein Accused denied the commission of the alleged offences stated that Complainant has fraudulently snatched his property and implicated him falsely in the present case in connivance with local police. Further, it was stated by the Accused he is innocent.
When questioned as to whether he wants to lead evidence in his defence, Accused answered in negative and accordingly defence evidence was closed and matter was put up for final arguments.
6. Ld. APP for the State as well as Ld. Counsel for Accused persons addressed detailed arguments in support of their respective cases.
Ld. APP for the State vehemently argued for conviction of the Accused stating that with the unfettered testimony of the complainant Suresh Goel, the case of the Prosecution stands firmly FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 6 of 12 proved beyond all reasonable doubts. Further, it was argued that the offences committed by the Accused are serious in nature and maximum punishment should be awarded to the Accused.
Per contra, Ld. Counsel for the Accused strongly opposed the submissions of Ld. APP for the State, arguing that no valid evidence has been brought on record by the Prosecution to bring home the guilt of the Accused. It was argued that Prosecution could not prove either the ownership or possession of flat no.5 by the complainant and therefore, question of cheating by personation or house trespass does not arise and therefore, Accused deserves to be acquitted from the present case.
Submissions have been duly heard. Record has been carefully perused.
7. As per settled principles of criminal law, Accused is presumed to be innocent until proven guilty. The Prosecution case has to stand firm on its own legs to establish the guilt of the Accused by bringing cogent and reliable evidence. On the other hand, Accused can create doubts in the Prosecution case by cross-examining the Prosecution witnesses to create doubts on their credibility.
In the case at hand, Prosecution has examined four witnesses to prove its case, however, whether Prosecution has successfully established the guilt of the Accused or not shall be determined after evaluation of the testimonies mentioned above in the light of the relevant legal provisions.
Accordingly, the provisions of law attracted herein, the FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 7 of 12 relevant authorities elucidating the law as well appreciation of evidence has been discussed in the following pages.
8. In the present case, the Accused has been charged for the offence punishable under Section 448 IPC. Section 448, IPC prescribes punishment for "House Trespass". Section 442,IPC defines House Trespass as follows:
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
A bare perusal of the provision brings forth that the pre- requisite for completion of this offence is the commission of Criminal Trespass. As to what is criminal trespass has been defined in Section 441, IPC 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 view of the above provision, the first pre-requisite for completion of this offence is that the Complainant must have been in the possession of the property in which alleged trespass has taken place. Second pre-requisite is that the Accused must have entered the premises of the Complainant with an intent to commit an offence or to insult or annoy the complainant.
FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 8 of 12 The Hon'ble Himachal Pradesh High Court in the matter titled as Sant And Anr. vs The Union Of India [AIR 1962 HP 1] , referring to first part of criminal trespass as defined above, held that:
10. On analysis the following appear to be essential ingredients of that part: (1) Entry into or upon property in the possession of another. (2) Such entry should be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
9. Further, Accused has also been charged for commission of offence u/s 419 IPC which provides punishment for the offence of Cheating by Personation which has been defined u/s 416 IPC as follows:
A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation.-- The offence is committed whether the individual personated is a real or imaginary person.
From the bare reading of the provision itself, it is apparent that in order to prove cheating by personation, it is indispensable for Prosecution to establish the offence of cheating by the Accused and that too by pretending to be someone else. Thus, the testimony of the person to whom such impersonation has been made is vital for proving the offence.
10. Coming now to the facts of the case, nowhere in the entire testimony of the complainant has it come on record that he was in possession of the flat no.5, Triveni Apartment, Jhilmil at any point of time. Even though, complainant has brought on record certain FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 9 of 12 documents i.e. GPA, SPA and Will, claiming to be the ownership documents of the flat no.5 and 23, he has admitted that he has no sale deed or title document with respect to the said flats. Be that as it may, it has already been discussed above that for the completion of offence of house trespass, it is necessary that complainant was in the possession of the property in which trespass has been done. As it has already been admitted by the complainant that he was never in physical possession of the property in question, the question of trespass does not arise. Complainant has not even brought on record that, if he was not in possession, then who was having the possession of flats no.5 and 23 at the time when they were given to Sanjay and Rakesh on monthly tenancy basis.
Complainant has alleged that Accused has broken the locks of the said flats and handed over the same on tenancy basis to Sanjay and Rakesh, however, no witness has been brought on record to testify in this regard. Neither any tenancy agreement has been brought to establish impersonation nor any other witness who would have seen the breaking of locks or trespass by the Accused. PW-3 Ritika Mishra who was a neighbor of flat no.23 has turned completely hostile and failed to lend much needed support to the Prosecution case.
It is important to note here that a glaring discrepancy surfaces in the version of the complainant when his complaint Ex.PW1/A is compared to his testimony in the court. In complaint Ex.PW1/A, complainant has stated that on 16.01.2008, Sanjay and Rakesh, who were brothers had told him that they were inducted as tenants in flat FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 10 of 12 no.5 by Accused Ram Kumar by impersonating himself as the owner of the flat and they had given this fact in writing in presence of one Sudesh Kumar R/o Flat No.244. However, in his testimony in the court, complainant has stated that Sanjay and Rakesh had told him that flat no.5 as well as flat no.23 were given by Accused to them. Clearly, only one of the versions of the complainant can be true. Moreover, the abovementioned person namely Sudesh Kumar could have been a relevant witness to the case, however, he has not even mentioned in the list of witnesses.
The most crucial missing link from the Prosecution case is the absence of the alleged tenants namely Sanjay Singh and Rakesh Kumar from the witness box. Prosecution failed to secure their presence in the court even by getting summons issued to them through DCP concerned. Sanjay Singh and Rakesh Kumar were the first hand eye witnesses not only to the alleged trespass but also to the impersonation of the complainant and therefore, their testimony was essential for proving the Prosecution case. Absence of Sanjay Singh and Rakesh Kumar from witness box has caused irreparable damage to the Prosecution case.
In totality of circumstances, with the lack of proof of proper ownership as well as possession by the complainant, with the hostility in the testimony of PW-3 Ritika Mishra and with the absence of Sanjay Singh and Rakesh Kumar from witness box, there remains no scope of doubt that Prosecution has failed to discharge its burden of proving the guilt of the Accused beyond reasonable doubts. On the contrary, instead of bringing relevant witnesses FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 11 of 12 Prosecution has rested its entire case on the shoulders of the complainant who has himself turned out to be a weak link in the chain of circumstances.
Conclusion
11. In these circumstances, this court has no hesitation in holding that Accused namely Ram Kumar Goel is not guilty for the offences U/s 419/448 IPC. Accordingly, the Accused namely Ram Kumar Goel S/o Late Sh. Kanshi Ram stands acquitted in the present case. Digitally signed by VIDHI VIDHI GUPTA GUPTA ANAND ANAND Date:
2024.01.22 16:33:02 +0530 Announced in the Open Court (Vidhi Gupta Anand) on 22.01.2024 Chief Metropolitan Magistrate, Shahdara District, Karkardooma 22.01.2024 [This judgment contains 12 signed pages] [This judgment has been directly typed to dictation.] FIR No. 35/2008 PS Vivek Vihar U/s 419/448 IPC State Vs. Ram Kumar Goel Page No. 12 of 12