Delhi District Court
State vs . : Shyam Sunder Malik Etc. on 30 October, 2019
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE - 07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 537/13
U/s : 341/380/506/448/34 IPC
PS : Sunlight Colony
State Vs. : Shyam Sunder Malik Etc.
a The Sl. No. of the case : 3835/17
b The date of commission : 19.07.2013
c The date of Institution of the case : 25.08.2017
d The name of complainant : Anil Saini
e The name of accused : 1. Shyam Sunder Malik
S/o Hukam Chand
R/o h. no. 230, Hari
Nagar, Ashram, New
Delhi
2. Naresh Malik
S/o Hukam Chand
R/o h. no. 230, Hari
Nagar, Ashram, New
Delhi
f The offences complained of : 341/380/506/448/34 IPC
g Charges framed under sections : 341/451/380/506(I)/34
IPC
g The plea of both accused : Pleaded not guilty
h Arguments heard on : 25.10.2019
i The final order qua both accused : Acquitted
j The date of judgment : 30.10.2019
JUDGMENT
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 1 of 25
1. Accused persons Shyam Sunder Malik and Naresh Kumar Malik have been sent for trial on the allegations that on 19.07.2013 time unknown at H. No. 230, 4th floor right side, Hari Nagar Ashram, New Delhi, both the accused persons, in furtherance of their common intention, broke the lock of the door of abovementioned house of the complainant. It is further alleged that they both, in furtherance of their common intention, put their own lock on the said door and have voluntarily obstructed the complainant Anil Saini to prevent him from proceeding in that direction which he had a right to proceed and committed house trespass. It is also the allegation of the prosecution that the said accused persons had also stolen the articles belonging to the complainant. It is further alleged against the accused persons that they both threatened the complainant of dire consequences also. Thus, as per the prosecution, both the accused persons thereby committed offences made punishable u/s. 341/451/380/506(I)/34 IPC.
2. The IO, after completion of investigation, filed chargesheet in this matter.
3. It may be noted that initially chargesheet was filed for offences made punishable u/s. 341/380/506/448/34 IPC but at the time of framing of charges, charges for offences made punishable u/s. 341/451/380/506(I)/34 IPC were framed to which they had pleaded not guilty and claimed trial.
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 2 of 25
4. Before proceeding further, it shall be helpful to give a little background of the dispute between the complainant and the accused herein. From the record, it transpires that the complainant herein was engaged as a building contractor by the accused persons for re - constructing the house of the accused persons. Both accused herein are admittedly the owners of house bearing no. 230, Hari Nagar, Ashram New Delhi. They engaged the complainant herein to re - construct the said house and it appears two separate written agreements were entered between them. This case revolves around agreement dated 27.04.2011 which was for re - constructing the 4 th floor (over the terrace of 3rd floor) of house bearing no. 230, Hari Nagar, Ashram New Delhi. As per the said agreement, the accused herein are stated to be owners and in possession of terrace of 3rd floor of the aforesaid property which was to be re - constructed by the complainant and in lieu thereof one flat (in the re - constructed property) on the right side of the 4th floor / eastern side was to fall as consideration on behalf of the accused persons to the complainant. The agreement states that the complainant "shall be entitled to owe and possess" the said flat. Thus, as per the aforesaid agreement, the aforesaid 4 th floor was to be re - constructed by the complainant on the 3 rd floor terrace of the aforesaid property. The same admittedly is the property in possession of the complainant's with ownership rights therein. After such re - construction, 4th floor flat on the eastern side of the said re -
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 3 of 25 construction property was to fall in the share of the complainant. He was entitled to owe and possess the said flat after re - construction.
5. Now, the dispute arose between the parties with the complainant claiming that he had re - constructed the 4 th floor of the said property and he claims to have been in possession of the eastern side 4 th floor flat. He claims, that he was illegally dispossessed of the said flat by the accused persons who are claimed to have broken open the locks of his flat and removed his goods. He also claims that the accused persons illegally took possession of his flat. It is also his claim that when he visited his flat he was threatened by the accused persons to be thrown off from the 4th floor. It may be noted that the said incident is alleged to have taken place on 19.07.2013. A written complaint in this regard was made on 17.12.2013 by the complainant which led to the registration of present FIR.
6. Prosecution has examined the following witnesses in support of its case:
Sr. Witness Nature of deposition / documents produced / No. Description proved i. PW1 Documents produced / proved:
Anil Saini A. Agreement of year 2009 Mark X FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 4 of 25 B. Fresh agreement dated 11.03.2010 Ex.PW1/A C. Sale deed Ex.PW1/B D. Fresh agreement executed in 2011 Ex.PW1/C E. Written complaint of the complainant dated 19.07.2013 Ex.PW1/D F. Another written complaint of the complainant dated 17.12.2013 Ex.PW1/E G. Seizure memo of collaboration agreement of 4th floor of the building Ex.PW1/F H. Other complaint Ex.PW1/G I. Statement of this witness dated 04.07.2016 Ex.PW1/X J. Legal notice dated 05.01.2012 Ex.PW1/Y K. Copy of order dated 05.05.2014 passed by Executive Magistrate Ex.PW1/Z L. Another complaints Ex.PW1/Z1 (colly.) He is the complainant of this case on whose testimony the entire case of the prosecution rests.
This witness had correctly identified the accused persons who were present in the court as the persons responsible for offences in question.
ii. PW2 Documents produced / proved:
SI Yogesh
Tanwar A. Notices u/s. 41A CrPC (qua accused)
Ex.PW2/A (colly.) and Ex.PW2/B (colly.)
B. Notices u/s. 41A CrPC (qua complainant)
Ex.PW2/C
C. Photocopy of agreement dated 27.04.2011
Ex.PW2/D
He is the second IO of this case who carried out
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 5 of 25
investigation in this case.
iii. PW3 This witness is the electrician by profession and
Shriram he had done the electrical work at house of the
complainant i.e. on fourth floor. He did not give the exact address or time where he worked for the complainant. Only after the Ld. APP cross examined him, he deposed about the date and place of work.
He further deposed that complainant used to make payments to him for the work done by this witness in his house.
iv. PW4 This witness is contractor and mason by
Mayadin profession. He worked for complainant and
constructed the fourth floor of his house in Hari Nagar Ashram, New Delhi. Complainant used to make payment to said witness and he had constructed 2 flats in 2011 in summer season.
v. PW5 Documents produced / proved:
SI Bijender
A. Rukka Ex.PW5/A
B. Notices u/s. 160 CrPC (qua accused)
Ex.PW5/B and Ex.PW5/C
He is the first IO of this case who carried out
part investigation in this case.
vi. PW6 This witness is also one of the IOs in this case
Retired SI who carried out investigation in this case.
Shahbab
Alam
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 6 of 25
Documents admitted by the accused:
1. FIR (without contents) Ex.PA1
2. DD no. 10A dated 19.07.2013 PS Sunlight
Colony Ex.PA2
3. DD no. 12A dated 19.07.2013 PS Sunlight
Colony Ex.PA3
4. DD no. 50B dated 19.07.2013 PS Sunlight
Colony Ex.PA4
7. All the said witnesses were duly examined on behalf of the State and crossexamined [by the Ld. APP for State, where necessary and also by the counsel for the accused person(s)].
8. After closure of prosecution evidence, separate statements of both accused were recorded u/s. 313 Cr.P.C in which they stated that they have been falsely implicated in the present case. Both accused Shyam Sunder Malik and Naresh Kumar Malik also claimed that owing to a property dispute with the complainant wherein they had got their house constructed from the complainant and the said complainant thereafter got greedy and to usurp their property have caused filing of the present false case. They further claimed that the complainant never completed the work and got them falsely implicated in this case. It is also their case that accused persons had also given a legal notice to the complainant in 2012 which was before this case for completing the work which was never complied by the complainant. They further FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 7 of 25 claimed that some of the work was later completed by their funds while some is still lying in uncompleted condition and the police did not investigate the case property and wrongly chargesheeted the accused persons. They claimed that they had made the first police call which have also been placed on record by the police and contents thereof show that it is a false case.
9. Accused Naresh Malik, apart from the above claim, has also placed on record 47 photographs which shows the work which was never done by the complainant and said photographs are marked as Mark Z (colly.).
10. Both the accused persons did not lead any defence evidence. Hence matter reached the stage of final arguments.
11. Final arguments heard. Record perused.
12. As already noted, from the record it transpires that the complainant herein was engaged as a building contractor by the accused persons for re - constructing the house of the accused persons. Both accused herein are admittedly the owners of house bearing no. 230, Hari Nagar, Ashram New Delhi. They engaged the complainant herein to re
- construct the said house and it appears two separate written agreements were entered between them. This case revolves around FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 8 of 25 agreement dated 27.04.2011 (Ex.PW2/D) which was for re - constructing the 4th floor (over the terrace of 3rd floor) of house bearing no. 230, Hari Nagar, Ashram New Delhi.
13. As per the said agreement Ex.PW2/D, the accused herein are stated to be owners and in possession of terrace of 3 rd floor of the aforesaid property which was to be re - constructed by the complainant and in lieu thereof one flat (in the re - constructed property) on the right side of the 4th floor / eastern side was to fall as consideration on behalf of the accused persons to the complainant. The agreement states that the complainant "shall be entitled to owe and possess" the said flat. Thus, as per the aforesaid agreement, the aforesaid 4th floor was to be re - constructed by the complainant on the 3 rd floor terrace of the aforesaid property. The same admittedly is the property in possession of the complainant's with ownership rights therein. After such re - construction, 4th floor flat on the eastern side of the said re - construction property was to fall in the share of the complainant. He was entitled to owe and possess the said flat after re - construction.
14. Now, the dispute arose between the parties with the complainant claiming that he had re - constructed the 4 th floor of the said property and he claims to have been in possession of the eastern side 4 th floor FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 9 of 25 flat. He claims, that he was illegally dispossessed of the said flat by the accused persons who are claimed to have broken open the locks of his flat and removed his goods. He also claims that the accused persons illegally took possession of his flat. It is also his claim that when he visited his flat he was threatened by the accused persons to be thrown off from the 4th floor. It may be noted that the said incident is alleged to have taken place on 19.07.2013. A written complaint in this regard was made on 17.12.2013 by the complainant which led to the registration of present FIR.
15. The first thing that stands out in this case is the delay in reporting of the incident by the complainant. As already noted, as per the complainant, the incident took place on 19.07.2013 while the written complaint about the same is made on 17.12.2013. Thus, there is a delay of about 05 months in the reporting of the alleged incident for which no explanation has been offered by the prosecution or the complainant. It is not clear from the evidence as to what prevented the complainant in making a written complaint about the alleged incident. Infact, complainant claims to have made a 100 number call and purportedly the police arrived at the spot soon thereafter in his presence. He also alleges to have been taken to the police station from the spot itself (see examination in chief of complainant dated 25.05.2019). Now, if that be true, it means that the written complaint was made by the complainant on the alleged date of the incident itself FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 10 of 25 i.e. 19.07.2013. But, as already noted, the complaint herein Ex.PW1/E was made on 17.12.2013 only which led to the registration of FIR.
16. It may be noted that complainant alleged to have made a written complaint of the incident on 19.07.2013 also and placed reliance on Ex.PW1/D in this regard. It may be noted that Ex.PW1/D is merely a photocopy and has not been proved on record by the prosecution as per law. It is not clear as to who has the possession of the original complaint and whether the same was actually received in the PS or not and if yes, why the complainant did not pursue it in the first place. A question also arises as to if Ex.PW1/D was actually made, where was the need to give another complaint Ex.PW1/E on 17.12.2013 to the police. Be that as it may, with Ex.PW1/D being a photocopy and the same having not been proved on record in light of section 63 read with section 65 of Indian Evidence Act, the same cannot be led in evidence. If that be the case, the only complaint which the complainant gave to the police was on 17.12.2013 (Ex.PW1/E) and that was made after a delay of 05 months of the incident.
17. The unexplained delay of 05 months in making of the initial complaint is fatal to the prosecution's case as the possibility of false implication by giving time to the complainant to brood over the chain of events cannot be ruled out.
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 11 of 25
18. The matter does not rest here. It may be noted that the initial FIR in the present case was registered u/s. 448/341/34 IPC. This FIR does not speak of any theft of goods and claims that purportedly the accused persons had thrown away the goods of the complainant. At this stage, it may be noted that no description of goods purportedly thrown away by the accused (which purportedly belonged to the complainant) has been given in Ex.PW1/E. It means, in the initial FIR / complaint, complainant never spoke of any theft of his goods or the description thereof. This was despite a 05 month delay in reporting the incident. This creates a serious doubt about the veracity of the claim of the complainant qua the chain of events. Later on, the same complainant claims that his goods were actually stolen from his property and in this regard police recorded his statement u/s. 161 CrPC on 04.07.2016 (see Ex.PW1/X). In the statement, complainant has alleged that his goods were actually stolen and does not claim that his goods were purportedly thrown away by the accused. It is very interesting to note herein that even in this statement recorded after about 03 years of the alleged incident, complainant does not give any description of his goods purportedly stolen. Infact, during his examination in chief before this court, complainant simply claims that when he visited his flat on 19.07.2013, he did not find any of his goods there. He did not give any description of goods which were purportedly stolen or removed by the accused.
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 12 of 25
19. It may be noted that police had placed on record one hand written list (which was exhibited as Ex.PW1/G and later de - exhibited : see evidence sheets of PW1 dated 25.09.2019) and it was pointed out by the Counsel for the complainant to argue that the said list was actually the list of goods which were stolen from the property of the complainant. I am not inclined to accept the said argument in as much as, while deposing as PW1, the complainant did not speak of any goods which were actually stolen from his flat and only when the Ld. APP for State had pointed out the same, the witness identified the same. This was objected to by the Counsels for the accused persons and the said objection was decided against the State and the said document was de - exhibited. Once, Ex.PW1/G was de - exhibited, the same cannot be read in evidence at this state. Even otherwise, Ex.PW1/G is an undated document and it is not clear when and where was the same handed over by the complainant to the police. The investigation of this case has gone on for about 04 years and when and how did the complainant produce the said list is by itself give rise to grave suspicion about the authenticity of the same. None of the statements recorded u/s. 161 CrPC give details of any goods purported to have been stolen from the premises of the complainant and thus even on merits, little evidentiary value can be attached to Ex.PW1/G (later de - exhibited).
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 13 of 25
20. Thus, as far as the claim of complainant qua theft is concerned, the same is shrouded in grave suspicion. Suspicion arises on the ground of delay in reporting the incident and also on account of non description of the goods (stated to have been stolen) in the initial complaint given to the police. Suspicion also arises on account of failure on the part of the complainant to claim theft in the initial complaint Ex.PW1/E. It appears that for reasons best known to the complainant or police, section 380 IPC was invoked by them without any evidence.
21. Simply because complainant claimed theft of goods, the same cannot be taken as gospel truth without there being any corroborative evidence qua the same. Neither any receipt of purchase of any alleged stolen goods has been placed on record nor any independent witness was produced to show possession of such goods with the complainant. Infact, complainant himself is not aware about them as he does not gave any description of the same during his examination in chief.
22. One very interesting fact can also be noted which came out during the arguments of this case. During the arguments of this case, complainant claimed that the goods kept in his property were actually the goods of his security guard who used to live in the said property. Now, this is a new claim made by the complainant at the stage of final arguments wherein he alleges that the goods purported to have been stolen were actually the goods of the unnamed security guard. The said claim is in FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 14 of 25 complete contradiction to his statement Ex.PW1/E or Ex.PW1/X wherein he claims that the undescribed goods belonged to him. It is also to be noted that it is for the very first time that the complainant has claimed that some security guard of his was occupying his property and goods of the said security guard were kept there. Neither the presence of the said security guard was earlier disclosed by the complainant to the police or to this court (at the time of his examination before this court) and at the time of final arguments only, such wild claim has been made. This only goes on to show the falsity of facts being claimed by the complainant before this court. It persuades this court to read the testimony of the complainant to the pinch of salt and look for corroborative piece of evidence for the claims made by the complainant.
23. This brings me to the testimony of the complainant qua his claim of possession of the property in question. Now, as already noted, complainant claims to have constructed the property for the accused persons and he claimed that the possession thereof was given to the accused. Now, it is not clear from the testimony of the complainant as to when and how was the possession of the property given by him to the accused. It may be recalled that while one flat on the 4 th floor was to be handed over to one of the accused namely Shyam Sunder Malik (western / left side), the other flat was to go to the complainant (eastern / right side). The terrace of the 4 th floor was to go to other FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 15 of 25 accused Naresh Kumar. In this regard, reference may be had to Ex.PW2/D which appears to be an admitted document between the parties. Now, no evidence has come on record to show as to when respective parties entered the actual physical possession of the said portions as per Ex.PW2/D. It means, from the evidence, it is not clear as to when and how was the physical possession of the western / left side of the flat on the 4th floor of the property bearing no. 230, Hari Nagar Ashram given by complainant to accused Shyam Sunder Malik. Again, it is also not clear when the complainant himself entered in possession of eastern / right side of the flat on the 4th floor of the property bearing no. 230, Hari Nagar Ashram to the exclusion of the accused persons namely Shyam Sunder Malik and Naresh Malik. Again, it is also not clear that when accused Naresh Malik entered in possession of top floor terrace of the constructed 4th floor to the exclusion of others.
24. At this stage, it may be recalled that as per the agreement Ex.PW2/D, accused persons were admittedly the owner and in possession of the terrace of the 3rd floor of the aforesaid property which was to be re
- constructed by the complainant and in lieu thereof one flat (in the re
- constructed property) on the right side of the 4 th floor / eastern side was to fall as consideration on behalf of the accused persons to the complainant. The agreement states that the complainant "shall be FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 16 of 25 entitled to owe and possess" the said flat. Thus, as per the aforesaid agreement, the aforesaid 4th floor was to be re - constructed by the complainant on the 3rd floor terrace of the aforesaid property. The same admittedly is the property in possession of the complainant's with ownership rights therein. After such re - construction, 4 th floor flat on the eastern side of the said re - construction property was to fall in the share of the complainant. He was entitled to owe and possess the said flat after re - construction.
25. If I take Ex.PW2/D as an admitted document between the parties (qua which complainant himself speaks in his evidence and prosecution has relied upon the same to show possession of the complainant of eastern / right side of the flat of the complainant), in my opinion, the complainant was only entitled to owe and possess a flat on the 4 th floor of the property in question and the said property in question i.e. 230, Hari Nagar Ashram including its 3rd floor was admittedly owned and possessed by the accused. In other words, the entire property was admittedly in de jure and de facto possession of the accused persons only. The agreement Ex.PW2/D only gave a right to owe and possess one flat in the said property after re - construction and did not actually give possession of the flat to the complainant. Needless to say that a right to owe and possess is completely different from actual possession. In my opinion, Ex.PW2/D was only giving a right to FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 17 of 25 the complainant to owe and possess a flat and did not actually put him in possession of any flat. If, the complainant had completed his part of the agreement and thereafter he was not being given possession of his flat, it was for him to seek his remedy before a civil court. On the basis of Ex.PW2/D, complainant could not claim that he had the legal, actual and physical possession of the flat.
26. Now, it may be recalled that the complainant does not give the date, mode or manner of handing over the possession of the re constructed flat by him to the accused persons. It means, the de jure and de facto possession of the entire property bearing no. 230, Hari Nagar, Ashram would be with the accused persons as they were the admitted owners of the same. They had only allowed the complainant to enter their property for re - constructing it after which it was for the complainant to leave the property. He was only a contractor to construct the same. Once he left the property he had a right under Ex.PW2/D to seek ownership and possession of one of the flats laid out in the agreement. Now, it was for the accused persons to pass on the ownership and possession of the said flat after compliance of terms under Ex.PW2/D. For the said purpose, a registered sale deed would have been necessary. The same was never executed in this case. Simply put, with the admitted ownership of the entire property being with the accused FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 18 of 25 herein and they being in the possession of the 3 rd floor of the same (as per Ex.PW2/D itself), the complainant herein was a mere contractor. His claim of possession of one of the flats does not transpire from the evidence led before this court as he does not say in his testimony as to when and how was the possession thereof handed over by the accused to him. Even if the de jure possession of the flat in question was never given by the accused to the complainant by execution of a sale deed, even if de facto possession of the property was given by them to him, it was for him to explain in his testimony as to when and how he got the said possession from which he has been dispossessed.
27. At this stage, it may be recalled that accused herein have faced trial inter alia u/s. 451 IPC which speaks of criminal trespass in the property which is in possession of another person. Section 441 IPC defines criminal trespass as 'entry into or upon the property in possession of another'. Now, if the complainant is silent as to when and how did he enter the possession of the flat in question and considering the fact that the de facto and de jure possession of the entire property bearing no. 230, Hari Nagar, Ashram (which included the flat in question) was with the accused themselves (as evident from Ex.PW2/D), can the accused be said to have trespassed into a property which was in their possession itself? The answer has to be no. In my opinion, there is no evidence to show that the accused persons had under the contract Ex.PW2/D handed over the possession of the flat in FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 19 of 25 question to the accused. It was for them to initially give the said possession to the complainant and only then could the complainant dispossession / criminal trespass. From the record, it appears that there is a civil dispute pending between the parties wherein it is alleged by the accused persons that the complainant never finished the agreed construction and thus, there is no question of they giving possession of the agreed flat to the complainant. A detailed statement u/s. 313 CrPC was given by either of the accused before this court in this regard and they also placed on record 47 photographs to that effect. Even if, the said statement or photographs cannot be read as evidence, atleast, it explains the background of dispute between the parties. It shows, that there is a possibility that since the complainant herein did not complete his work, the accused did not pass on the ownership and possession of the agreed flat to the complainant as they insisted on the terms of Ex.PW2/D. This led to a dispute between the parties to which, possibly a criminal colour was given by the complainant. In my opinion, the said possibility is very strong in the present case considering the delay in filing of FIR and the other surrounding circumstances explained in the body of this judgment.
28. The aforesaid possibility further find credence in the DD entries no.
10A dated 19.07.2013 / Ex.PA2; 12A dated 19.07.2013 / Ex.PA3; 50B dated 19.07.2013 / Ex.PA4. The said DD entries record the calls made to police by the complainant as well as the accused persons and FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 20 of 25 the action taken by the police on the said calls. DD no. 50B records that the initial DDs 10A and 12A were disposed off / filed as it was found that there is a property dispute between the parties and neither any incident of quarrel or theft as recorded in the said DDs. All the three DDs are dated 19.07.2013 and they show that even though certain calls were received from the complainant and the accused herein (the identity of the caller connected through the mobile numbers recorded in the DDs) but, the police eventually found no incidence of theft or quarrel and therefore the said DDs were closed. If I consider the DD no. 50B which has been placed on record by the prosecution itself, on the preliminary inquiry, police did not find any case of theft or quarrel and therefore no FIR was registered on 19.07.2013. Only later on 17.12.2013 on receipt of a written complaint an FIR was registered and that to u/s. 341/448 IPC. Only for the purposes of raising a possibility of a civil dispute between the parties, DD no. 50B is a very important piece of evidence which give credence to the said possibility and therefore, the possibility of the complainant falsely making up a case of trespass etc. cannot be ruled out in the present case.
29. Yet again, even if I consider the testimony of the complainant on its face value, there are many contradictions in his testimony made before this court read with his statements given to police especially Ex.PW1/X. In the said statement, he claims to have found his flat open FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 21 of 25 when he reached his flat. In the same statement, he also states that he agreed to pay for completion of work to be done by the accused persons in the other flat. Both these facts were denied to have been stated by the complainant during his crossexamination. Infact, as per Ex.PW1/E complainant had tried to unlock his flat with his own key when he reached there on 19.07.2013. This is in contrast to his claim of having found his flat unlocked made in Ex.PW1/X. Despite the same being pointed out during his crossexamination, no explanation was given by him in this regard.
30. Yet again with regard to factum of payment qua uncompleted work being stated in Ex.PW1/X, complainant refused to have made such statement to police. In this regard, it shall be helpful to quote the relevant part of his testimony which reads as under :
At this stage, witness is shown a statement dated 04.07.2016 Ex.PW1/X. It is correct that this statement was recorded.
I had told the police the fact that I had tried to open lock of my flat with my own key but in vain. I cannot say why this fact is not recorded in Ex.PW1/X. It is wrong to suggest that I told the police that the lock of my flat was already open i.e. there was no lock. At this stage, witness is confronted at point A to A of his statement of 04.07.2016 Ex.PW1/X wherein it is stated that his flat was found open when he reached there.
It is wrong to suggest that I had not completed the construction of flat for the accused and had assured them that either they can get them constructed at their cost or I shall get it done but I never got the said construction completed.
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 22 of 25 At this stage, witness is confronted at point B to B of Ex.PW1/X wherein it is written that accused told the witness that the construction in the flat is not complete. It is also written there that witness told the accused that even though the construction is complete but in case accused feel that some work is pending then, they can get it complete for which the witness shall make payment. I have not made any payment to the accused persons as all work in the flat was already completed by me and thus, the question of making any payment does not arise.
(emphasis supplied)
31. A bare perusal of Ex.PW1/X shows that the complainant agreed to make payment for uncompleted work which he denied before this court. He claimed that he had already finished the work and thus the question of him making any payment for the same does not arise. It may be noted that Ex.PW1/X was recorded on 04.07.2016 i.e. after a period of about 03 years from the date of FIR. It means, as per the complainant, he had already completed the work atleast at the time of FIR in 2013. If that be true, why would he make statement qua completion of work on 04.07.2016? It is only possible if some work was still pending even on 04.07.2016. This is the exact case of the accused persons herein that the complainant is yet to finish the work qua which a civil dispute is pending. They claimed that no incident of trespass or criminal intimidation etc. took place and a false FIR was belatedly filed against them.
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 23 of 25
32. I am inclined to accept the said line of argument considering the facts before me. The testimony of the complainant does not inspire confidence. He appears to be approbating and reprobating at the same time with his stands shifting like sand dunes. The testimony of the complainant is shrouded in grave suspicion and cannot be relied upon for returning a finding of conviction against the accused persons. The delay in filing of FIR, lack of description of goods alleged to have been stolen, the possession of the property being found to have been with the accused themselves, the contradictions in the testimony of the complainant are compelling circumstances which persuade this court to believe that the present case is a shining example of use of criminal justice system for settling civil disputes.
33. Be that as it may, in my opinion, the evidence placed before me (which is primarily the oral testimony of the complainant only) is insufficient to bring home the guilt of either of the accused beyond reasonable doubt.
34. Prosecution had produced 02 other witnesses namely PW3 / Sriram (electrical) and PW4 / Mayadin (Mason) to claim that complainant was in possession of the flat purportedly trespassed by the accused persons. But, for reasons already recorded, complainant or his employees / labourers were only under contract to construct the house and did not have the possession of the property in the manner FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 24 of 25 understood u/s. 441 IPC. If that be the case, neither the testimony of PW1 or PW3 or PW4 could in any manner show the possession of the complainant of the property / flat in question. Even otherwise, it has been found that a civil dispute qua completion of work is already pending between the parties.
35. Be that as it may, in my opinion, the evidence in this case proves ingredients of neither of the offences alleged. The testimony of the complainant is vague, untrustworthy and uninspiring. All the allegations of theft or intimidation or trespass etc. appears to have been driven for causing the accused persons to settle the civil dispute. On the sole testimony of PW1 / complainant, I am not inclined to accept the case of the prosecution on its face value. There is no corroboration of either of the facts by any independent witness and as such, both the accused are entitled to be acquitted of all the charges leveled against them. It is ordered accordingly.
Digitally signed by AASHISH AASHISH GUPTA
Announced in the Open GUPTA Date:
2019.10.30 Aashish Gupta
16:48:29 +0700
Court on 30th day of October, 2019 MM(South East)07
Saket, New Delhi
FIR no. 537/13 State V/s. Shyam Sunder Malik Etc. Page no. 25 of 25