Delhi District Court
Complainant vs Ashok & Ors. ..............Accused on 31 January, 2019
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IN THE COURT OF Ms. NEHA GUPTA SINGH
METROPOLITAN MAGISTRATE 02 (NORTH)
ROHINI COURTS : DELHI
Sh. Liaq Ram
S/o Sh. Pyare Lal,
R/o H. no. 315, Village & P.O. Khera Kalan,
Delhi110082.
............COMPLAINANT
Versus
Ashok & Ors. ..............ACCUSED
Case Number. : 4971/16
Date of Institution. : 17.08.2005
Offence Complained Of. : U/s 448/34 IPC
Name and details of accused 1. Ashok 2. Sh. Satish,
3. Sh. Narender, 4.
Surinder, 5. Rakesh
Kumar (all sons of Late
Sh. Laxman Singh) 6.
Sh. Maman Singh, 7.
Kewal Singh, 8. Jai
Kishan, 9. Om Prakash,
10. Vijender Kumar, 11.
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Sanjay (all Son of Sh.
Kewal Singh R/o Village
Khera Kalan, P.S.
Samaipur Badli, Delhi
Plea of the Accused. : Not Guilty
Arguments Heard On. : 20.12.2018
Final Order. : Acquitted
Date of Judgement : 31.01.2019
Judgment
1.Complainant has filed the present complaint U/s 190 R/W Section 200 Cr.P.C.
2. Brief facts as revealed by the complainant (since deceased) is that he was in possession and in occupation in property no. 548, Village Khera kalan, Delhi. His rights in the said property were confirmed by the Decree of the court in suit no. 570/02 passed by the court of Sh. Devender Kumar Sharma Ld. Civil Judge, Delhi. On 10.07.2005 accused no. 1 to 5 in conspiracy with accused no. 6 to 11 tried to take forcible possession of the said property. They trespassed into the property of the -: 3 :- complainant in intervening night of 11 and 12.07.2005 and threatened the complainant. They installed the bitorey and carried out the unauthorised construction in the property. They broke down the side wall of the door of the property and also middle wall of the property. Complainant made several complaints to the police officials however, no action was taken.
3. Cognizance of the complaint was taken and action taken report was called from the SHO concerned. Application U/s 156(3) Cr.P.C. was dismissed and matter was put up for complainant evidence.
4. Complainant examined himself in pre summoning evidence and deposed about the facts of the case. Vide order dated 12.11.2010 all the accused were summoned for offence U/s 448 IPC. All the accused were admitted on bail and copy of complaint and complete set of documents was provided to them in compliance of Section 207 IPC.
5. Arguments were heard on notice and notice U/s 448/34 IPC was framed against all the accused to which they plead not guilty and claimed trial.
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6. Complainant examined five witnesses in post summoning.
7. CW1 complainant Liaq Ram deposed that he was in possession and in occupation of property no. 548 Vill. Khera kalan, Delhi. His rights in the said property were conferred by the decree of the court in suit no. 570/02 passed by the court of Sh. Devdnder Kumar Sharma, Ld. Civil Judge, Delhi. His right,title and interest were when within the knowledge of the accused persons. On 10.07.2005 accused no. 1 to 5 committed act of criminal conspiracy with mixing of mind with accused no. 6 to 11 who provided aid and abatement to each other and they tried to take forcible possession of the portion which was shown in different colour in the site plan Ex. CW 1/1. In continuation of their act of trespassing in his property with threat and criminal intimidation, the accused person again in the night intervening 11 & 12 July, 2005 entered upon and into his property which was in his possession, the accused persons committed trespass and criminal intimidation. The accused in their different way had committed the offence in the manner that Ashok, Satish, Narender, Surender, Rakesh installed bitorey at the place shown in blue in the site plan. -: 5 :- One Maman Singh, Kewal Singh,Jai Kishan, Om Prakash, Bijender and Sanjay have illegally and unlawfully carried out encroachment and unauthorised construction at the place shown in red colour in the site plan Ex. CW 1/1. The accused persons had also broken the side wall of the door of the property which was shown at point A in the pink colour and middle wall broken by the accused which was shown at point B pink colour in the site plan. He had lodged police complaint against the said act of the accused which is Ex. CW 1/ 2. He had also lodged different complaints which are marked as Mark A to D. The photocopy of the judgement & decree dated 27.08.2004 passed by the court of Sh. Devender Kumar Sharma was marked E. Liaq Ram said that his compliant was correct and facts narrated therein were true, he said in his pre summoning evidence.
He stated that on 10.07.2005 at about 10:30 a.m. he came to know that some persons namely Kanwal Singh, Maman Singh, Jai Kishan, Om Prakash, bijender Kumar, Ashok, Satish, Narender, Surender, Rakesh and Sanjay were doing unauthorized construction on his house bearing no. -: 6 :- 548,VPO Khera Kalan, Delhi. All accused persons in connivance with each other were doing the aforesaid constructions. He reached at the spot. He objected the accused persons as he was he owner of aforesaid property. They told him that they are doing their work. They directed him to to go away from the spot. He did not leave the spot. They abused him and stated that he can do whatever he want to do. They threatened him to fix. Thereafter, he called at 100 number about 34 times. The PCR came after a long time. The police got stopped the construction work. The masons and other laboureres had left the spot before arriving of police. Thereafter, the police officials from PS SP Badli also came at the spot. Thereafter, he and accused Maman Singh were brought to the police station. Before that the spot was photographed by his son Satpal Singh. One Sh. Ram Jeewan (neighbour) was also accompanied them to PS. There he explained the history to the SHO R.S. Randhawa and also shown the decree in his favour to him. He refused to accept the same and he stated that he will put all the persons behind the bars. He also directed him to let to the construction to -: 7 :- accused persons. The certified copy of decree is Ex. CW1/A. The SHO recorded the statement of Maman Singh. Maman Singh inter alia stated that he was the owner of aforesaid property. Rm Jeewan also gave his statement that who ever is in possession of land in village is the owner of the land. Thereafter, he gave a complaint along with copy decree to SHO on 10.07.2005, the same was already mark C. Thereafter on 11.07.2005 he filed a complaint before Commissioner of police and DCP (NorthWest), the same were already mark D(colly). When the photographs were clicked on 10.07.2005, only accused Om Prakash and Sanjay were present and the remaining accused persons were not present. Thereafter, on the night of 11/12.07.2005, the accused persons did the constructions. On 12.07.2005, he again complained before SHO PS SP Badli, ACP PS SP Badli, DCP (NorthWest) and Commissioner of Police, the same was already Mark B. His son Satpal Singh clicked the photographs of the spot 14.076.2005. The construction work was going on till 17.07.2005 also his son clicked the photographs of the spot. On 14.07.2005 Mumty was construct4ed by accused Jai Kishan -: 8 :- on his stairs. On 18.07.2005, he again wrote the letter to DCP (NorthWest). The same was already mark A. On 14.07.2005, he also met the DCP (NorthWest), on his directions he met to the ACP PS SP Badli. He produced his complaints to him. The assured him to visit the spot. He was not informed when the ACP had to visit. He visited the spot in his absence. He was with his son at Narela. On 27.07.2005, he filed a complaint case before the court. In the year 1988, late Sh. Bhale Ram father of accused Maman Singh,Kanwal Singh, Jai Kishan, Jai Prakash, Om Prakash and Birender Kumar stated before the court of Ld. ADJ Sh. Tiwari (full name he did not remember) that he did not have anything to do with the case property i.e. Liaq Ram did not have any claim in the case property. On 12.07.2005 accused Ashok, Satish, Narender, Surender and Rakesh installed 'Bitode' (house of cowdung cakes) in the plot of Liaq Ram. The site plan of the same was already Ex. CW1/1. Before filing of present complaint he filed a contempt petition against accused persons before the court of Ld. Civil Judge Sh. Devender Kumar Sharma. The accused persons had filed their reply. The said application was dismissed in default. -: 9 :- The said application was filed by him in the Execution or Decree already pending before the said Court. Decree was already acknowledged by the accused persons in his favour qua the aforesaid property.
8. CW2 Satpal Singh has stated that this complaint was filed by his father liaq Ram. He knew some facts mentioned in the complaint which he could explain. On 10.07.2005 his father gave him a telephonic call that their property is being taken possession unauthorizedly. He also told him that he sons of Bhale Ram and sons of Laxman Singh were trespassing in their property. When he reached at eh spot the police officials were present over there. It was about 10.45/11:00 a.m. Thereafter, police officials called them in PS. He requested the police officials to have photographs of the property which was trespassed by the aforesaid persons. When he was taking photographs, Sanjy and Om Prakash and some ladies stayed on the spot and other persons had left the site. In the intervening night of 11/12.07.2005, Jai Kishan and Maman Singh and their associates took unauthorized possession by trespassing in the property and started construction over there. -: 10 :- On 12.07.2005 Maman Singh was getting the construction work done. On 14.07.2005, he again took photographs of the property with newspaper of the date which photographs with negatives were Ex.CW 2/1 to Ex. CW 2/5. While construction work was going on on 14.07.2005, Satish Kumar was also helping to provide bricks for the construction work in the property in question. Narender installed a bitoda by trespassing their property. On 17.07.2005 he again took photographs which showed that after roofing they had trespassed in the property. Thereafter, they sought police assistance but no action was taken by the police, then his father initiated criminal proceedings before the court by way of present complaint. This property was under the ownership of his father and his three brothers. It was devolved from their forefathers. The property was divided in two parts as the property in question came into share of Duli Chand and Khyali Ram. After death of his grand father there was a panchayat held by the biradari people, one Jai Kishan S/o Sh. Bhale was also member in the said panchayat. In the said panchayat, the property bearing no. 315 came in the share of his father and -: 11 :- property no. 548 came to the share of Duli Chand and Khyali Ram. In the year 1986, the sons of Sh. Bhale Ram and Sh. Laxman Singh demolished some part of property no. 548 by trespassing therein. Thereafter his father filed a civil suit which was already on record for permanent injunction., in that suit, Bhale Ram withdrew himself from the said suit by making statement that he has no concerned with the property in dispute. Satpal Singh further stated that their case continued with Sh. Laxman Singh. The said suit was decreed in the year 2004 in their favour. The complaint was filed by his father was correct and accused persons he booked for the offence committed by them.
9. CW3 HC Yogender Singh from office of the commissioner of police has stated that he had the copy of correspondence diary Dt. 12.07.2005 and 13.07.2005 along with original Dairy with effect from 02.05.2005 to 31.08.2005 where in Ex. CW 3/A (OSR) wherein by serial no. 11685 one correspondence was received from Liaq Ram on 12.07.2005 and vide serial no. 11712 correspondence was received on 13.07.2005. Same was sent to DCP vigilance.
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10. CW4 ASI Mohan Lal has stated that as per order darted 09.08.2016 bearing no. 8275/HAR/outer District records pertaining to year 1996 to 2012 were destroyed. Copy of order is mark X.
11. CW5 Ct. Vikram Singh has stated that as per the order dated 02.05.2018 bearing no. 4417 to 4506/HAR/ Rohin Distt. All the old records of complaint branch upto year 2014 was weeded out. Copy of order is mark Y.
12. Complainant evidence was closed and statement of accused under section 313 Cr.Pc was recorded by putting all incriminating evidence to them. They pleaded innocence and stated that property was under their possession and false allegations are made by the complainant. They did not wish to lead defence evidence.
13. Final arguments were lead by the complainant and accused persons and both sides filed written arguments on record.
14. It is argued by the Ld. Counsel for the complainant, that he was in possession and in occupation in property no. 548, Village Khera kalan, Delhi. His rights in the said property -: 13 :- were confirmed by the Decree of the court in suit no. 570/02 passed by the court of Sh. Devender Kumar Sharma Ld. Civil Judge, Delhi. On 10.07.2005 accused no. 1 to 5 in conspiracy with accused no. 6 to 11 tried to take forcible possession of the said property. They trespassed into the property of the complainant in intervening night of 11 and 12.07.2005 and threatened the complainant. They installed the bitorey and carried out the unauthorised construction in the property. They broke down the side wall of the door of the property and also middle wall of the property. It is argued that accused were party to the suit and were well aware of the decree passed in favour of the complainant.
15. Per contra it is argued by the Ld. Counsel for accused no. 1,2,8 and 10 that complainant has not proved any document showing his ownership in the property. Accused are not named in complaint made to SHO concerned on 10.07.2005. their names are also not mentioned in complaint dated 11.07.2005.
16. It is argued for accused no. 6,7,9 and 11 that complainant was never in possession of the property. Civil suit was not filed against the accused 6,7,9 and 11. Complainant has made -: 14 :- similar allegations in contempt petitions and same were dismissed. He has admitted that construction was demolished in 1986 and then complainant took civil remedies in year 1986,1989, 1991 and 2005. It is admitted fact that accused claim themselves to be owner of the property. Reliance is placed on Kanwal Sood v. Naval Kishore AIR 1983 SC 159.
17. Remaining accused adopted the arguments done by both the counsels.
18. Offences alleged against the accused are for offence under section 448 IPC for house trespass
19. To prove house trespass prosecution had to prove peaceful possession with the complainant and witness to the fact that accused trespassed in the property. In present case no documents or any independent witness is brought on record to prove the possession. Further it is admitted by the complainant that accused demolished the part of property in year 1986. Intention to commit an offence is essential ingredient of an offence under section 448 IPC, same is not proved cogently by the complainant. It cannot be said that accused committed criminal trespass in present matter when the possession of -: 15 :- property is not proved and the fact that accused are also claiming themselves to be the owner in long standing civil dispute further solidify this argument.
20. Accordingly, all the accused persons are acquitted for offence under section 448/34 IPC.
Announced in the open court On this 31st January 2019 NEHA Digitally signed by NEHA GUPTA GUPTA SINGH Date: 2019.01.31 SINGH 16:30:10 +0530 (Neha Gupta Singh) Metropolitan Magistrate02, North Rohini Delhi