Delhi District Court
State vs . Indra on 3 October, 2019
IN THE COURT OF MS. CHETNA SINGH: ACMM02 (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE Vs. Indra
New Case No: 1075/17
FIR N0. : 83/16
U/S : 332 read with Section 461 of DMC Act & 120B of IPC
PS : Gulabi Bagh
Date of Institution : 28.01.2017
Date on which case reserved for Judgment : 20.09.2019
Date of Judgment : 03.10.2019
JUDGMENT
1. FIR No. of the case : 83/16
2. Date of commission of offence : 28.01.2016
3. Name of the accused : Indra
W/o Sh. Suresh,
R/o H. No. 172/3, Gali No. 3,
Wazirabad, Delhi.
FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 1 of 14
4. Offence complained of : Section 332 read with Section
461 of DMC Act & 120B of
IPC .
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquittal
BRIEF FACTS
1. The story of the prosecution is that on 28.01.2016 at unknown time at P No. 10800, Gali No.16, Pratap Nagar, Delhi, situated within the jurisdiction of PS Gulabi Bagh, accused Indra alongwith Sh. Ram Singh (since deceased) in furtherance of criminal conspiracy were doing illegal construction/repair of building at above mentioned plot without obtaining requisite sanction from concerned Commissioner and thereby committed an offence punishable u/s 332 read with Section 461 of Delhi Municipal Corporation Act and under section 120B of IPC.
2. On the basis of a complaint, present FIR was registered. After FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 2 of 14 carrying out the investigation, charge sheet was filed. Accused was summoned. After compliance of section 207 Cr. P.C, charge u/s 332/461 of DMC Act and 120B of IPC was framed against accused Indra on 23.10.2017.
APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution was required to examine six witnesses in total.
4. PW1 Sh. R.S. Meena deposed that on 06.05.2016, he was posted as Deputy Commissioner, NDMC, Sadar Pahar Ganj Zone, Delhi. He had given complaint u/s DMC Act against illegal construction at Plot no. 10800, Gali No. 16, Pratap Nagar, Delhi which was under the ownership of Sh. Ram Singh and Smt. Indira. He had mentioned in his complaint that unauthorized construction was in the shape of entire ground floor and raising of column & brick work at first floor. He was reported regarding this FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 3 of 14 construction through Sh. Rajender Kumar, JE (Building), Sh. R.K. Khari, Assistant Engineer (Building), Sh. S.R. Meena, EE (Building) and Sh. Suresh Chandra, SE (Building). His complaint is Ex.PW1/A bearing his signature at point A. Photographs of unauthorized construction were also annexed and the fact was also mentioned in his complaint. The property was booked for unauthorized construction vide file no. 22/B/UC/SPZ/16 dated 28.01.2016 and show cause notice was issued u/s 344(1) and 343 of DMC Act and demolition order passed by Sh. R.K. Khari, AE (Building), SPZ and thereafter sealing show cause was issued by the undersigned u/s 345(A) of the DMC Act and sealing order was passed by Sh. Davesh Singh, Deputy Commissioner after his transfer from the said zone. The original photographs of the unauthorized construction were forwarded to the SHO, Gulabi Bagh alongwith the said complaint. He brought the original record concerning the said unauthorized construction and criminal complaint made against the said property. The copy of the FIR is Ex.PW1/B, the show cause notice dated 28.01.2016 (running into two pages) is Ex.PW1/C, the FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 4 of 14 demolition order dated 10.04.2016 is Ex.PW1/D and demolition proceedings dated 19.02.2016 on top is Ex.PW1/E. The photocopy of photograph is Ex.P1.
This witness was cross examined by the Ld. Counsel, however his cross examination is not repeated herein for the sake of brevity.
5. PW2 Sh. Ravinder Kumar Khari deposed that on 28.01.2016, he was posted as Assistant Engineer (Building), Sadar, Pahar Ganj Zone, North DMC, Delhi. Sh. Rajender, JE had put up one file No. 22/B/UC/SPZ/16 dated 28.01.2016 to him regarding unauthorized construction at Pratap Nagar, Delhi. The document of the above said file is Ex.PW1/B, bearing his signatures at page nos. 1, 3, 9, 11 and 13 at point B respectively. Thereafter, the file was was put up before his the then senior officer i.e. Executive Engineer (Building).
This witness was cross examined by the Ld. Counsel, however his cross examination is not repeated herein for the sake of brevity. FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 5 of 14
6. PW3 Retired SI Kishan Singh deposed that on 21.05.2016, he was posted as Duty Officer at PS Gulabi Bagh from 8.00 PM to 8.00 AM. At about 9.40 PM, a complaint was received by him through SHO for getting the case registered. On the basis of complaint he registered the case vide FIR No. 83/16 and the same is Ex. PW3/A (OSR) bearing his signature at point A. The copy of FIR alongwith original rukka was handed over to HC Ajesh for further investigation. He also made endorsement on original complaint which is Ex. PW3/B bearing his signatures at point A. The certificate u/s 65B of Indian Evidence Act qua the FIR is Ex.PW3/C, bearing his signatures at point A. This witness was cross examined by the Ld. Counsel, however his cross examination is not repeated herein for the sake of brevity.
7. PW4 W/HC Madhu Bala deposed that on 06.11.2016, she was posted as W/HC with PS Gulabi Bagh. On that day, IO arrested accused Indra (correctly identified in the court by the witness) vide arrest memo FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 6 of 14 Ex.PW4/A, bearing her signatures at point A. This witness was cross examined by the Ld. Counsel, however her cross examination is not repeated herein for the sake of brevity.
8. PW5 ASI Ajesh Kumar deposed that on 21.05.2016, he was posted as HC with PS Gulabi Bagh. On that day, the present case was marked to him for investigation by the then SHO, PS Gulabi Bagh. He went to spot at Plot No. 10800, Gali No.16, Pratap Nagar, Delhi. He prepared the site plan Ex.PW5/A, bearing his signatures at point A. On the spot, he did not find any debris and the spot was empty plot. He served notice to JE Rajender Singh and AE Ravinder Kumar. He recorded the statements. JE Rajender Singh handed over documents to him and he seized the same vide memo Ex.PW5/B, bearing his signatures at point A. He interrogated accused Indira (correctly identified in the court by the witness) and she handed over him some documents and he seized the same vide seizure memo Ex.PW5/C, bearing his signatures at point A. He arrested accused on 06.11.2016 vide FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 7 of 14 arrest memo Ex.PW4/A, bearing his signatures at point B. This witness was cross examined by the Ld. Counsel, however his cross examination is not repeated herein for the sake of brevity.
9. PW6 Sh. Rajender Singh deposed that on 28.01.2016, he was posted as JE (B) SPZ Zone, Delhi. On that day, a complaint was lodged against accused. On 28.01.2016, a notice was served for the premises no.10800, Gali No.16, Pratap Nagar, Delhi. The said notice is Ex.PW1/B. On 10.02.2016, second notice was issued against the said property which is Ex.PW1/C (OSR), bearing his signatures at point A. On 19.02.2016, the demolition order against the said property was passed which Ex.PW1/E, bearing his signatures at point A and A1. On 08.04.2016, the demolition took place. He handed over photocopies of documents regarding the same to the IO and IO seized the same vide seizure memo Ex.PW5/B, bearing his signatures at point A. This witness was cross examined by the Ld. Counsel, however FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 8 of 14 his cross examination is not repeated herein for the sake of brevity.
10. Upon completion of Prosecution Evidence, statement of accused u/s 313 Cr.P.C was recorded on 03.06.2019 wherein accused has pleaded innocence and opted to lead defence evidence.
11. DW1 Smt. Indra deposed that she got married in the year 1992 and she was not residing at her matrimonial home at H. No. 10800, Gali No. 16, Pratap Nagar, Delhi since 1992. Her family members are residing at the property of Pratap Nagar and her father Late Sh. Ram Singh S/o Late Sh. Samay Singh was the owner of said H. NO. 10800, Gali No. 16, Pratap Nagar.
This witness was cross examined by the Ld. APP for State, however her cross examination is not repeated herein for the sake of brevity.
12. Upon completion of defence evidence, DE was closed vide order FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 9 of 14 dated 19.07.2019 and matter was listed for final arguments.
13. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
14. In order to prove its case, the prosecution has examined six witness in total including PW1 who is the complainant namely R.S. Meena who proved his complaint Ex. PW1/A during this testimony. PW1 in his complainant alleged that accused Indra is the owner of the property/Plot No. 10800, Gali No. 16, Pratap Nagar, Delhi and has been making unauthorized construction in the shape of entire ground floor and raising column and brick work at the first floor. He stated that he reported about this construction through JE, AE, EE and SE (Building). He also relied upon show cause notice, demolition orders and the sealing show cause notice issued by the concerned departments as Ex. PW1/C to Ex. PW1/E. FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 10 of 14
15. This witness was cross examined at length by Ld. Counsel for accused wherein he stated that he was only reported about the construction by the JE, AE, EE and SE (Building). He admitted that he never personally visited the spot of construction and accordingly he cannot state that he was a witness to the unauthorized construction. No doubt, he has proved his complaint Ex. PW1/A. However, he was not a witness to the unauthorized construction. He also could not identify the accused Indra as he stated that Junior Engineer had visited the spot and only he would be in a position to identify the accused. He also could not state as to how the accused is the owner of the building which was unauthorizedly being constructed.
16. In this regard, PW2 Sh. Ravinder Kumar Khari, AE (Building) was also examined. This witness stated during his cross examination that he did not remember if he visited the property in question. He also did not know anything about the photographs on record.
FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 11 of 14
17. As per PW1, PW2 had gone to the spot and gave a report to him with regard to the illegal construction, however as per the testimony of PW 2 he has nowhere stated that he has identified the accused or he found the accused at the spot of the construction. Similarly, PW6 is the another person who according to the PW1 went to the spot of unauthorized construction. However, this witness also now where identified the accused and thus it is clear that the identity of the accused to be present at the spot is disputed. Further, as per cross examination of the PW6 Sh. Rajender Singh, JE, he did not verify the ownership proof of the property in question and thus it is not clear as whether the unauthorized construction on the property belongs to the accused or not. Unless it is proved by the prosecution that the property belongs to the accused, the accused cannot be prosecuted for the offence for which she is chargesheeted. Accordingly to PW5 ASI Ajesh Kumar, deceased Ram Singh was the owner of the premises and accused Indra does not reside in property bearing No. 10800, Gali No. 16, Pratap Nagar, Delhi FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 12 of 14 which is the spot of unauthorized construction. IO also admitted that the accused did not met him at the premises during investigation.
18. Further, in order to support the claim of the prosecution that the accused is the owner or was residing in the property in question, the prosecution could have examined public witnesses or neighbourers. However, no public witness apart from the officials from MCD have been joined in the investigation.
19. There is nothing on record to connect the accused with the alleged premises wherein unauthorized was carried out as per MCD officials. There is nothing on record to suggest that the accused is the owner or an occupant of the said premises.
20. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 13 of 14 its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
21. Since the factual matrix of the case has not been proved. I feel no hesitation in stating that prosecution has failed to prove its case against the accused Indra. Hence, the accused Indra is acquitted for the charge framed for the offence U/s 332 read with Section 461 of Delhi Municipal Corporation Act and 120B of IPC.
22. Ordered accordingly. Digitally signed CHETNA by CHETNA SINGH SINGH Date: 2019.10.04 15:41:54 +0530 Announced in the open court on 03.10.2019 (Chetna Singh) Addl. Chief Metropolitan Magistrate02 Central/THC/Delhi/03.10.2019 FIR No . 83/2016 State Vs Indra PS Gulabi Bagh Page No. 14 of 14