Delhi District Court
State vs . Farooq @ Sonu & Ors. on 30 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Farooq @ Sonu & Ors.
FIR NO. : 40/03, U/s 323/452/506/34 IPC
PS : NEW USMANPUR
A. CIS No. of the Case : 460529/2015
B. FIR No. : 40/2003
C. Date of Institution : 09.05.2003
D. Date of Commission of Offence : 04.02.2003 E. Name of the complainant : Smt. Kamrunisha W/o Late Munna Malik, R/o C-227/1B, Gali No.9, Chauhan Bangar, New Seelampur, Delhi.
F. Name of the Accused, his : (1) Farooq @ Sonu S/o Abdul Parentage & Addresses Mazid, (2) Rafiq @ Monu S/o Abdul Mazid and (3) Akram S/o Abdul Mazid, all R/o E-225/1B, Gali No.9, Chauhan Bangar, New Seelampur, Delhi.
G. Representation on behalf of : Sh. Ankit Gautam, Ld. APP. State H. Offence complained of : U/s 323/452/506/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 15.11.2022 K. Date of Order : 29.11.2022 L. Final Order : ACQUITTED FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.1 of 13
Brief Statement of Reasons for Decision of the Case
1. The present FIR has been lodged by the complainant Kamrunisha wherein she has stated that she alongwith her daughters Kherunisha, Praveen and Samrunisha and son Shahrukh was residing at C-227/1B, Gali No.9, Chauhan Bangar, New Seelampur, Delhi and had quarrel with her neighbour Abdul Mazid. She had also filed the complaint in the court against Abdul Mazid. The complainant alleges that the accused persons Farooq, Rafiq and Akram sons of Abdul Mazid would often abuse and pass comments on the complainant and her daughters and had earlier entered their house and had beaten them. However, due to fear the complainant or her daughters did get themselves medically examined. Again, the above said three accused entered into house of the complainant and threatened her to take back the complaint pending in the Court failing which they would kill the complainant and her son. They were carrying sticks and iron rods in their hands. The accused was charge- sheeted for offence punishable under Section 323/452/506/34 IPC.
2. FIR was registered and has been investigated by the officials of Police Station Seelampur and IO/ASI Arvind filed the charge sheet against the accused upon which cognizance was taken on 09.05.2013 by the learned Predecessor of this Court.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
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4. Charge was framed vide order dated 23.05.2003 for the offence punishable Under Section 452/506/34 of the IPC against accused persons by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 05 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Smt. Kamrunisha is the complainant in the present case and has stated that she alongwith her daughters Kherunisha, Praveen, Samsunisha and son Shanu were residing at C-227/1B, Gali No.9, Chauhan Bangar, New Seelampur, Delhi. She has stated that there was conflict going on between her son and neighbour Abdul Mazid and a litigation was pending in the Court in this regard. She has deposed that sons of Abdul Mazid i.e. Farooq, Rafiq and Akram used to tease her daughter and abuse them often. She has also deposed that accused persons threw stones at her house and physically assaulted her daughters but due to fear and being uneducated she or her daughters did not get themselves medically examined. She was threatened by the accused persons to withdraw the complaint from the Court. She has stated that accused persons having danda and sticks in their hands. The said witness was cross examined by Ld. counsel for all the accused.
(ii) PW2 Kherunisha is the daughter of the complainant PW1 has corroborated the version of PW1. She has deposed that the accused persons once entered in her house and physically FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.3 of 13 harassed them but they did not get themselves medically examined due to illiteracy. She has deposed that on 04.02.2003 all the accused persons entered in her house and threatened them with dire consequences asking them to withdraw the complaint from the Court otherwise they would be killed. The accused persons were having danda and stick in their hands. The said witness was not cross examined despite giving an opportunity.
(iii) PW3 Ms. Praveen is also the daughter of the complainant PW1. She did not mention the exact date of incident however, she stated that the accused persons came to her house and threatened them with dire consequences asking them to withdraw the Court case otherwise they would be killed, having sticks and danda in their hands. The said witness was not cross examined despite giving an opporunity.
(iv) PW4 Ct. Braham Pal was posted as Constable on the day of incident. He alongwith IO/ASI Arvind Kumar went to the spot where they met the complainant PW1 who made her complaint.
He has deposed that IO recorded her statement and prepared the rukka. He took the rukka went to the PS got the FIR registered, returned back to the spot and handed over the copy of FIR and original rukka to IO/ASI Arvind Kumar. The said witness was not cross examined despite giving an opportunity.
(v) PW5 SI Arvind was the IO on the said case. He has deposed that after the order of the Court the present investigation was marked to him by SHO. He recorded the statement of the complainant Ex. PW1/A and prepared the rukka. He also FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.4 of 13 recorded the statement of Kherunisha and Praveen Mark X1 and Mark X2. He arrested the accused Akram and Rafiq at the instance of the complainant PW1 vide arrest memo Ex. PW4/B and Ex. PW4/C. He also arrested accused Farooq with the help of PW4 on 27.03.2003 after getting him declared as absconder vide arrest memo Ex. PW4/F. After completion of the investigation he filed the chargesheet. The said witness was not cross examined despite giving an opportunity.
During the pendency of trial, proceedings against accused Farooq @ Sonu and Rafiq @ Monu had abated vide order dated 19.02.2010.
6. PE was closed on 22.07.2019 and on 03.09.2019, statement of accused under Section 313 Cr.P.C. was recorded. Accused Akram stated that he did not want to lead defence evidence and the matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. At the outset, it needs to be mentioned that though the original chargesheet was filed for offences under s. 323/452/506/34 IPC, nothing is on record to suggest the offence punishable under s.323 IPC. No charge for the said offence has been framed.
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10. Coming to the offence under S. 452 IPC, the section reads as follows:
"452. House-trespass after preparation for hurt, assault or wrongfful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The genus can be found in S. 441 IPC which defines the term house trespass. The suceeding sections are the variations of the criminal trespass defined in s. 441 and are punished as per the requirements of the sections.
Section 441 IPC defines criminal trespass and is as under:
"441. Criminal trespass.--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'."
11. In Rajinder v. State of Haryana [(1995) 5 SCC 187 : 1995 SCC (Cri) 852], hon'ble Supreme Court Court observed as under: (SCC pp. 198-99, paras 21-22) "21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case."
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12. Dealing with the issue of trespass, hon'ble Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCC (Cri) 315 at page 147 has observed that:
"It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say:
"We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed."
13. In Matiullah Sheikh v. State of W.B., (1964) 6 SCR 978 :
AIR 1965 SC 132 : (1965) 1 Cri LJ 126, it has been observed that:
"5. It is worth noticing also that house trespass, apart from anything else is made punishable under Section 448 of the Indian Penal Code the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences. An examination of Sections 449, 450, 451, 454 and 457 show that the FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.7 of 13 penalty prescribed has been graded according to the nature of the offence "in order to" the commission of which house trespass is committed. It is quite clear that these punishments for house trespass are prescribed quite independent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not. In our opinion, there can be no doubt that the words "in order to" have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under Section 449 of the Indian Penal Code. If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under Section 450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457 will apply the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
14. From the above discussion, it can be stated that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
15. In Rash Behari Chatterjee v. Fagu Shaw, (1969) 2 SCC 216, it was observed that:
"The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.8 of 13 it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
16. In the present case, PW1/Complainant has deposed that she has been residing at C-227 1B, Gali No. 9, Chauhan Bangar, New Seelampur, alongwith her daughters and son. She has also deposed about a dispuste with her neighbour Abdul Majid (father of all the accused persons). In her statement she has stated that the accused persons had pelted stones at her house and physically assulted her daughters and threatened her to withdraw the court case. She has no where deposed as to since when she was residing at the given property, no documents viz electricity bills etc are on record to show that the complainant had the possession of the property. Nowhere in her deposition PW1 has stated that the accused persons had come to her house or trespassed into her house. No date or time or even month of the incident has been mentioned by PW1.
17. Daughter of the complainant PW2, stated that all the accused persons entered her house on 04.02.2003 and threatened her family to withdraw the complaint from the court, otherwise they will be killed. Another daughter of the complainant, PW3 FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.9 of 13 did not mention the date and time of the incident, but stated that the accused persons came to her house and threatened her family to withdraw the court case otherwise they will be killed.
18. To prove the offence of S. 452 IPC, prosecution has relied on the deposition of above mentioned 3 witnesses. None of the above PWs have been able to establish their possession at the house C-227 1B, Gali No. 9, Chauhan Bangar, New Seelampur. Nothing has been brought on record to establish the fact the the complainant was in possession of the property. The prime witness, PW1 nowhere in her deposition has stated that the accused persons had come to her house. She does not remember the date time or even month of the incident. PW2 and PW3 does corroborate each other to the extent that accused persons had trespassed but they have also not stated anything about possession. The prosecution has failed to establish the possession of the complainant at C-227 1B, Gali No. 9, Chauhan Bangar, New Seelampur and since the possession has not been established, trespass of the same cannot be said to be done. Accordingly, no offene under S. 452 IPC is made out.
19. Coming to offence punishable under S. 506 IPC. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:
"503.Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.10 of 13 to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
20. A reading of the definition of "criminal intimidation"
would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
21. In Manik Taneja v. State of Karnataka, (2015) 7 SCC 423 : (2015) 3 SCC (Cri) 132, it has been observed that:
"It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section."
22. It is the case of the prosecution that the accused persons have criminally intimidated the complainant and her daughters. PW1 has deposed that the accused persons have threatened to withdraw the complaint having danda and sticks in their hands. PW2, stated that the accused persons threatened them with dire consequences, otherwise they will be killed. She has also FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.11 of 13 deposed that the accused persons were having sticks and danda in their hands. Similar, statement has been made by PW3.
23. From the conjoint reading of versions of PW1 to PW3 it can be stated that accused persons with stick and dandas threatened the Complainant to withdraw the court case. PW1 has deposed that the accused persons threated that the accused persons stated that if she did not withdraw the court case they will "teach them a lesson". PW 2 and PW3 have deposed that they were threatened stating that they will be killed. Threat to kill is of a much graver nature an would fall in S. 506 Part II. However, nothing in the deposition of PW1 shows that the accused persons had threatened to kill her. No stick or danda have been recovered by the IO. Nothing was recovered from the accused persons as evident from their personal search memos.
24. The threat as required for the offence punishable under S. 506 is that it should cause an alarm. PW1 in her deposition has stated that prior to the incident also the accused persons had pelted stones at her house and physically assaulted her daughters but they did not get themselves medically examined being illiterate. So, to examine whether the threat was extended with an intention to cause an alarm or not, it appears that no alarm was caused in the minds of PW1. If, she was threated to kill, she would have deposed the same in the court while deposing as PW1. The same has been stated by the complainant in her statement to the police. The threating in question was not the first time as the complainant herself has deposed that the accused have been threating and abusing the complainant in the past.
FIR No.40/03 State vs. Farooq & Ors. PS New Usmanpur Page No.12 of 13 Therefore, the impact of the threat if any was not so as to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the accused persons to cause alarm in the mind of the complainant. Accordingly, offence under S. 506 IPC is not made out.
25. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to proved the possession of the complainant or that the accused criminally intimidated her. No stick or danda has been recovered by the IO. Conjoint reading of the depositions of PW1 to PW3 does not corroborate each other to bring home the guilt of the accused.
26. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Accused Akram has committed offence under S. 452 IPC or S. 506 IPC, therefore, accused Akram is found not guilty in the present case and resultantly, he stands acquitted in the present case.
27. Accused is directed furnish personal bond in the sum of Rs.10,000/- each u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2022.11.30
16:34:29 +0530
Announced in the open (VIPUL SANDWAR)
Court on 30th November, 2022 MM-02/NE/KKD COURTS
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