Delhi District Court
State vs . Rakesh Arora on 29 August, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY: METROPOLITAN
MAGISTRATE10 (SOUTHEAST), SAKET COURTS:NEW DELHI
State Vs. Rakesh Arora
FIR No. 282/2000
U/s 453/448/380 IPC
P.S. G.K.1
J U D G M E N T
Serial No. of the Case : 233/2/14
Unique Identification No. : 02406R0255222002
Date of Institution : 13.12.2002
Date on which case reserved for
judgment : 29.08.2014
Date of judgment : 29.08.2014
Name of the complainant : Shri Diwakar Malhotra
s/o Shri A. S. Malhotra
r/o H.No. 202, Sector37,
Faridabad121002
FIR No.282/2000
P.S. G.K.1 Page No.1 of 9
Date of the commission of offence : 05.11.2002
Name of accused : Rakesh Arora
s/o Shri R. C. Arora
r/o R291A, G.K.1, New
Delhi
Offence complained of : U/s 453/448/380 IPC
Offence charged of : U/s 453 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 13.12.2002
Date on which case reserved
for judgment : 29.08.2014
Date of judgment : 29.08.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that on 04.11.2000 at Shop No.G3, Pamposh Enclave (Bhanot Corner), within the jurisdiction of P.S. FIR No.282/2000 P.S. G.K.1 Page No.2 of 9 G.K.1, New Delhi, the complainant Dr. Diwakar Malhotra had complained that on that day being the owner, while he was inspecting the premises and came to open the lock of the same, the accused in this case came down from his adjacent shop and snatched the keys and locks from the complainant and prevented him from opening his shop. Further the accused insisted the complainant to sell the same to him as it was lying vacant and on his refusal threatened him with dire consequences. Thereafter, the accused again received a call from the accused who threatened him to sell the property to the accused. Thereafter on 05.11.2000 the complainant was informed by the people from the market area that the accused had broken up the wall separating the shop of the complainant with the accused and entered in the shop and trespass into the property of the complainant.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 453 IPC to which he pleaded not guilty FIR No.282/2000 P.S. G.K.1 Page No.3 of 9 and claimed trial.
4. The matter was fixed for prosecution evidence. To prove its case the prosecution has examined as many as five witnesses.
During the trial prosecution has examined five witnesses i.e. PW1 HC Chander Bhan who deposed that on 06.11.2000 he was posted at P.S. G.K.1 as constable and had conducted the search in the house and godown of the accused and nothing was recovered and the search memos were Ex.PW1/A1 to Ex.PW1/A4.
PW2 R. D. Bhanot (Director of M/s Bharot Property) deposed that on 14.03.2001 while he was director of M/s Bharot Property after receiving the sanction letter from DDA, the occupancy certificate issued in the year 1998 from DDA the flats were issued and given possession to the customers. As per record, Flat No.G1 & G2 were given to Rahul Gupta and Flat No.G3 was given to Diwakar Malhotra and Flat No.18 to 21 were given to Mrs.Moti Arora. The allotment letter were Ex.PW2/A to Ex.PW2/C. During crossexamination, PW2 has admitted that plot No.1 was owned by M/s Bhanot Properties and Industries Ltd. for a lease of 99 years from DDA w.e.f. 1986. The company had got constructed shops on ground floor and sold it to different buyers and that PW2 was the MD of FIR No.282/2000 P.S. G.K.1 Page No.4 of 9 Bhanot Properties and being the director was looking after the maintenance and affairs of the said property. Further that he or M/s Bhanot Properties had never received any notice regarding unauthorized construction on any portion of this property from DDA and that it was not in his knowledge that any portion of the property was ever sealed by DDA and later PW2 has stated that he has checked his record and it was correct that in September 2000 DDA had sealed the ground floor shops of the complex LSC, Plot No.1 & 2 of Pamposh Enclave and shop No.G1 to G4 were also sealed. The shops were sealed by the DDA due to unauthorized encroachment in violation of building bylaws. Further it was correct that PW2 being the owner of the shopping complex has given representation to deseal the shops for carrying out rectification/removal of unauthorized encroachment and the same were owned by different owners and the shops were desealed in the year 2000. The encroachment was that the common varandah/passage in front of the shop was including in the shops in question, thereby increasing the covered area of the individual shop and each individual owner of the shop were getting the encroachment removed by themselves. As per PW2 the common wall between G2 & G3 was intact and within the permission covered area. However, the portion of the wall separating these two shops built in varandah were dismantled by the respective owners to take out the shutter and no FIR No.282/2000 P.S. G.K.1 Page No.5 of 9 encroachment/trespass by breaking the wall was done by owner of shop No.G2 upon shop No.G3.
PW3 Ct. Gajender deposed that on 05.11.2000 he was posted at P.S. G.K.1 and on that day he along with SI Jasvinder had gone to Bhanot Corner Pamphosh Enclave and accused was arrested in his presence vide Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B, recovery memo was Ex.PW3/C. Opportunity to crossexamine PW3 was granted to the accused but he did not question anything to PW3.
PW4 HC Dharamvir deposed that on 05.11.2000 he was posted at P.S. G.K.1 as duty officer and had recorded the FIR in the present matter after receiving rukka and FIR was Ex.PW4/A and rukka was Ex.PW4/B. Opportunity to crossexamine PW4 was granted to the accused but he did not question anything to PW4.
PW5 Inspector Jasvinder Singh deposed that on 05.11.2000 upon receiving the complaint of the complainant Ex.PW5/A he endorsed the same Ex.PW5/B and got the FIR registered. Thereafter he prepared the site plan Ex.PW5/C and photographs of the spot were taken which is Ex.PW5/D (colly) along with negatives. Thereafter the articles from the shop No.G3 Bhanot Corner Pamposh Enclave were seized vide memo already Ex.PW3/C FIR No.282/2000 P.S. G.K.1 Page No.6 of 9 and the accused was arrested vide Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B. Thereafter search of various places were conducted for recovery of the case property vide search memo already Ex.PW1/A1 to Ex.PW1/A4. He has further deposed that thereafter he collected the photocopy of documents relating to the ownership and possession of shop No.G3 from the complainant as well as PW2 and thereafter on completion of investigation the chargesheet was prepared and the case property was Ex.PW3/C. PW5 was not crossexamined as same was deferred.
5. The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the complainant in the present matter was untraceable and in the event where the complainant has not been examined the prosecution has failed to prove its case. Witnesses examined by the prosecution are formal in nature. He has further argued that in this case PW2 only public witness has very clearly stated in his testimony that there was no trespass into the property of the complainant.
6. In the present matter, the complainant Dr. Diwakar Malhotra was FIR No.282/2000 P.S. G.K.1 Page No.7 of 9 served several times and he was found untraceable. Summons were served to the complainant through DCP concerned and he was found untraceable. He could not be traced or examined before the court. In the present facts and circumstances where the star witness of this case i.e. the complainant was not found traceable, it was impossible for prosecution to prove its case since all the witnesses examined by the prosecution were formal in nature.
7. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. No material contradiction has been brought about in their testimonies despite extensive cross examination by ld. Counsel for accused. FIR No.282/2000 P.S. G.K.1 Page No.8 of 9
8. Since the complainant, the material eye witness in this case could not be examined and other witnesses examined by prosecution are formal in nature, there was no incriminating evidence against the accused. In the absence of incriminating evidence, statement of accused U/s 313 Cr.PC was dispensed with.
9. There is no incriminating evidence on record against the accused. In the absence of incriminating evidence, the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, the accused Rakesh Arora is acquitted of the offence punishable U/s 453 IPC.
10. File be consigned to Record Room after due compliance.
Pronounced in open court (SHEETAL CHAUDHARY)
on 29.08.2014 MM10 (SouthEast): Saket Courts:
New Delhi:29.08.2014
FIR No.282/2000
P.S. G.K.1 Page No.9 of 9