Delhi District Court
State vs Raghubinder Singh on 19 August, 2016
State v. Raghubinder Singh
IN THE COURT OF SH. SUSHANT CHANGOTRA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Raghubinder Singh
FIR No. 663/04
PS Mehrauli
U/s 447 IPC
JUDGMENT
1 Serial No. of the case : 1292/1/04
2 Date of commission : 27.10.2004 to 31.10.2004 3 Date of institution of the case : 25.10.2005 4 Name of complainant : Sh. A. K. Sharma 5 Name of accused : Raghubinder Singh S/o Sh.
Ram Kishan Singh, R/o H.No. V2/4, Jaypee Green, Greater Noida, UP.
6 Offence complained of : U/s 447 IPC 7 Plea of accused : Pleaded not guilty 8 Arguments heard on : 19.08.2016 9 Final order : Acquitted 10 Date of judgment : 19.08.2016 FIR No. 663/04 PS: Mehrauli 1 of 7 State v. Raghubinder Singh BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of the prosecution are that land falling in Khasra No. 82, 83, 84 & 85 Village Neb Sarai belongs to Gram Sabha. The accused encroached the aforementioned Gaon Sabha Land by making a road in it. Accordingly, the FIR u/s 447 IPC was registered.
2. After completion of investigation, the charge sheet was filed. Copy of challan was supplied to accused in compliance of section 207 of CrPC.
3. Prima facie case of commission of offence under Section 447 IPC was found to be made out against the accused. Formal notice was framed on 02.05.2013. Accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined six witnesses. PW1 Sh. A. K. Sharma the then BDO (South) deposed that on 30.10.2004, he received information from Halka Patwari that accused was making illegal encroachment in the Gaon Sabha land of village Neb Sarai, New Delhi bearing Khansra No. 82, 83, 84 & 85 by making a road in it. He made a complaint Ex. PW1/A and on 31.10.2004 he accompanied police officers to the spot and IO prepared the site plan.
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5. PW2 Sh. Mohan Lal i.e. Patwari deposed that in the year 2005, he was posted as Halka Patwari of village Neb Sarai. On that day, he handed over revenue record of Khasra No. 82, 83, 84 & 85 Ex. PW2/A to Ct. Hari Singh.
6. PW3 ASI Suresh Chand deposed that on 31.10.2004 investigation of this case was marked to him. He went to the spot and prepared site plan Ex. PW3/A at the instance of BDO Mehrauli and also took the photographs Ex. P1. He collected the documents of disputed land from the Patwari and seized them vide memo Ex. PW3/B. He proved arrest memo Ex. PW3/C & personal search memo Ex. PW3/D.
7. PW4 ASI Subhash Chand deposed that in the month of December 2004 further investigation was marked to him. He only prepared the chargesheet and filed it in the court.
8. PW5 Hari Singh deposed that on 04.01.2005, he obtained Khasra Girdwari of Khasra No. 82, 83, 84 & 85 from Halka Patwari and handed it to IO HC Suresh Chand vide memo Ex. PW3/B.
9. PW6 Ct. Ramakant proved arrest memo and personal search memo of accused Ex. PW3/C & Ex. PW3/D respectively.
10. Accused admitted the genuineness of FIR No. 663/04 of PS Mehrauli.
11. PE was closed vide order dated 09.10.2015. Statement FIR No. 663/04 PS: Mehrauli 3 of 7 State v. Raghubinder Singh of accused u/s 313 Cr.PC was recorded on 18.02.2016. The accused opted not to lead defence evidence.
12. I have heard the arguments of the Ld. APP for State as well as of Ld. Defence counsel. I have also gone through the evidence on record very carefully.
13. In order to establish the guilt of accused Raghubinder Singh the prosecution was under obligation to establish that:
(i). The land in Khasra No. 82 to 85 village of Neb Sarai belongs to Gram Sabha & it was in its possession earlier;&
(ii).Accused had constructed a road in the aforementioned land and thereby encroached it.
14. The prosecution has proved khasra girdwari Ex.
PW2/A. As per said document land situated in khasra no. 82 to 85 vests in the Gram Sabha.
15. The prosecution of this case started on the basis of complaint of BDO (South) Ex. PW1/A. In the said complaint of BDO (South) it was stated that earlier letter bearing no. 1286 dated 27.10.2004 was written to the SHO & therein it was mentioned that one Ravinder Singh had encroached the land, whereas, Raghubinder Singh had encroached it. However, the earlier letter was not brought on record.
16. The prosecution relied heavily on statement of Sh. A. K. Sharma i.e. PW1. In his examination in chief the witness FIR No. 663/04 PS: Mehrauli 4 of 7 State v. Raghubinder Singh deposed that he had given the aforementioned complaint Ex. PW1/A on the basis of report of Halka Patwari. He also admitted that Halka Patwari had given a written report to him, but he did not provide the same to the Police. The aforesaid fact reveals that the above mentioned witness had acted on the basis of information given to him by his subordinate. He did not have any personal knowledge as to who had constructed the road as alleged & his information was based on alleged report which has not seen the light of day.
17. The prosecution has also not examined the Halka Patwari or any other person who could depose about the involvement of the accused in the construction of the road. The IO did not collect any other evidence i.e. statement of labourers who were constructing the road or from the person from whom the material for constructing the road was bought or the equipments were brought for constructing the road. Thus, it has to be said that there is no evidence on record to show as to how the revenue officials or police officials came to know that accused was the person who was constructing the road.
18. The prosecution was also under obligation to establish that the land alleged to be encroached actually fell in khasra no. 82 to 85. However, no demarcation proceedings were ever conducted to ascertain the exact location of the land wherein the road was FIR No. 663/04 PS: Mehrauli 5 of 7 State v. Raghubinder Singh being constructed. In absence thereof, there is no material to establish that the road was being constructed in khasra no. 82 to 85.
19. There is also no material on record that the road which was being allegedly constructed led to the house of accused or to any other property which belonged to accused. There is absolutely no evidence that any property of the accused was close by, therefore, he was constructing the road.
20. As per IO i.e. ASI Suresh Chand he prepared site plan PW3/A at the instance of BDO Mehrauli. However, PW1 Sh. A. K. Sharma the then BDO stated that he does not remember whether the police prepared site plan in his presence. Since the witness did not remember whether site plan was prepared in his presence or not, therefore, the question of preparation of site plan at his instance does not arise.
21. It has to be concluded that the prosecution has failed to establish that the road was being constructed in khasra no. 82 to 85 at village of Neb Sarai. It has also failed to establish that accused was constructing the road and thereby it encroached the government land.
22. In Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court held that, "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire FIR No. 663/04 PS: Mehrauli 6 of 7 State v. Raghubinder Singh 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.
23. In view of the aforementioned discussion, it has to be concluded that prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused Raghubinder Singh is given the benefit of doubt and he is acquitted of charges of committing offence u/s 447 IPC.
24. The accused Raghubinder Singh was directed to furnish bail bonds and surety bonds in terms of Section 437A Cr.PC.
Announced in the open (SUSHANT CHANGOTRA)
court on 19.08.2016 MM5 (South), Saket Courts
New Delhi
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