Delhi District Court
State vs Ravinder Singh on 1 June, 2010
1
IN THE COURT OF MS KIRAN BANSAL
ADDL. CHIEF METROPOLITAN MAGISTRATE III: SOUTH DISTT.
PATIALA HOUSE COURTS :NEW DELHI
State v/s Ravinder Singh
PS: Mehrauli
FIR No: 138/97
U/s: 448/380 IPC
JUDGMENT
a) Sr number of the case : 02403 R 0509322003
b) Date of commission of offence : 03.02.1997
c) Name of complainant , if any : V K Arora
S/o SH. G D Arora
d) Name & address of accused : Ravinder Singh
S/o SH. Gyan Singh
R/o 65/9, Village Kishangarh, New
Delhi
e) The offence complained of : U/s 448/380 IPC
f) The plea of accused : Pleaded not guilty.
g) Final order : Acquitted
h) The date when reserved for order : Not reserved for
i) The date of such order : 01.06.2010
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:-
1. The brief facts of the present case are that the complainant filed a complaint with the Commissioner of Police stating that he is the owner of the land measuring 1 Bhigha 6 Biswa, in Khasra NO. 38/9/2 Min in village Mehrauli, which he had purchased from Jogi Ram vide agreement and POA dated 25.08.1992 and 12.06.1995,. He has further stated that he being a Government Servant, has appointed Joginder Pal as his attorney and was in possession of the said land through his Attorney. He has further stated that the land was entered in the Khasra Girdawari for the year 1992-96 in possession of Joginder Pal and when the complainant along with his attorney 2 Joginder went to the property on 03.02.1997 he found that the locks were broken and one gate out of the two was removed. The complainant as per his version then went to the Patwari and obtained a Khasra Girdawari and was astonished to see that name of the Ravinder Singh, i.e. the accused was entered. He had alleged that Patwari Baljeet Singh had made wrong entries in favour of the Ravinder Singh and that the accused Ravinder Singh has trespassed into his land. It is further alleged that the cots and cooking utensils of the complainant's servant were stolen.
2. On the complaint of the complainant present FIR U/s 380/448 IPC was registered against the accused, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
3. Subsequent to the filing of the challan, cognizance was taken and the accused Rajat Sharma was summoned. Thereafter, the matter was listed for the framing of charge against the accused. Prima facie offence U/s 380/448 IPC was found to be made out against the accused and thus the charge accordingly framed on 29.06.2000, to which the accused pleaded not guilty and claimed trial and hence the matter was thereafter listed for PE.
4. PW-1 Sh. V K Arora, who deposed that he was the owner of the land bearing No. 38/9/2 and that in Feb 1997, he came to know that the land was trespassed by one Ravinder Singh, which was informed to him by his attorney Joginder Pal and that he also visited the site and thus he lodged a complaint in the regard to the PS, however, initially no case was registered by the Police but the same was registered only when he approached to the commissioner of the police and the same is ex.PW1/A . He further stated that cooking utensils and cot of his chowkidar was also stolen and that he had also given the copy of the telephone application to the police mark A and also given the copy of the GPA ex. PW1/B, another SPA ex.PW1/C, will ex. PW1/D and agreement ex. PW1/E, and receipt Ex. PW1/F and that he had obtained the revenue record of Khasra Girdawari, which he obtained from the patwari and that the land remained in the name of /possession of Joginder Pal , who is attorney and copy of Khasra Girdawari ex. PW2/G and copy of the Khasra 3 Girdawari of the year 1993, as ex. PW1/H, for the year 1994 is ex. PW1/J and copy of the Girdawari for the year 1997 is ex.PW1/K and Khatoney pamish from the Patwari on 30.1.1997, as ex.PW1/L and stated that the Ravinder Singh accused had trespassed on his land wrongfully and that name in the Khasra Girdawari for the year 1997 has been wrongfully mentioned by the Patwari. This witness was also cross examined by the Ld. Defence Counsel.
5. PW-2 Sh. Jogi Ram, who deposed that he sold a land to Mr. Arora, which was 2 or 3 Bighas and that he did not remember whether any documents prepared or not and also did not remember anything else. This witness was cross examined by the Ld.APP whereby he denied that the accused Ravinder Singh had trespassed the said land or had broken the chaukhat of the room and forcibly taken the possession of the said land and was also confronted with statement mark A where it is so recorded. This witness was also cross examined by Ld. Defence Counsel.
6. PW-3 ASI Kailash Chand, who has been examined being the Duty Officer and has duly proved the copy of the present case FIR as ex. PW3/A .
7. P-4 SI Dharam Dev, who deposed that on 07.11.1997, investigation of the present case was entrusted to him and he interrogated Halka Patwari Baljeet Singh and completed the challan and also recorded the statement U/s 161 Cr.P.C of witness Rati Ram, Ram Narain, Mahender Singh, BishanSingh, Chhote lal and Laknender and Mahesh. This witness was also cross examined by Ld. Defence Counsel.
8. PW-5 Mahinder Singh, who deposed that since last about 8-10 years, he had seen that the Ravinder and his father Gian Chand on the Land Khasra No.38 and that once patwari Sh. Baljeet Singh came to the said site to whom also he had told the said facts . This witness was also cross examined by Ld. APP whereby he stated that he told Patwari that the portion of the North side of the said Khasra was in possession of Ravinder since last about 4 -5 years since August 1998.
9. PW-6 Ram Narain who deposed that Khasra NO. 389/2 was in the possession of Ravinder of Kishan Garh and that since last about 12-15 years, he was seeing Ravinder in the possession of the said Khasra and that the portion of the north 4 side of the aforesaid khasra was in the possession of Ravinder since last 4 to 5 years and that the south portion was in the name of the wife of Harish Kumar .
10. PW-7 Bishan Singh, who deposed that the police had made inquiry from him, regarding the Khasra No. 38/9/2, near Rajokari Pahari, about the ownership of the said land to which he stated that the said land belonged to accused and that he was cultivating the land since long belonging to the accused which is measuring little more than one Bigha and deposed that he did not know as to who is the owner of the other part of the said land as the same had been sold to some Harish Kumar and that the document Mark A was prepared by the then Halka Patwari, Baljeet Singh at the site itself, on which he had signed at point A and that all the other signatories put their signatures on the said documents in his presence and the same has been exhibited as ex. PW7/A. This witness was cross examined by Ld. Defence Counsel.
11. PW-8 Rajeev Sharma, who brought the record regarding the land at Khasra NO. 38/92 and stated that the said land was in the name of Rinu wife of Sh. Harish Kumar measuring 1-8 and that the remaining land was in the name of Ravinder Singh measuring area 1-4, and exhibited the copy of the record as ex. PW8/A. This witness was also cross examined by Ld. Defence Counsel.
12. PW-9 Sh. Chhote Lal, who deposed that in August 1996, on inquiry by the Patwari Baljit Singh, he told that the land situated in North side of Khasra NO. 38/9/2 was in possession of Ravinder Singh for the last 4 -5 years prior to 1996 and that the south part was in possession of wife of Harish Kumar on which a room , tin shed and boundary wall had constructed. This witness had also been cross examined by the Ld.Defence Counsel.
13. PW-10 Sh. Bhanwar Singh, who has been examined being the patwari and had brought the original record pertaining to Khasra NO. 38/9/2 for the year 1996-97 and stated that the copy of Khasra Girdawari for the year 1994 to 1996, for the year 2003 to 2004, has already been filed on record and are already exhibited as Ex. PW1/G and PW8/A, and also brought the record for the perios 2005, as Ex. PW10/A. This witness was also cross examined by Ld. Defence Counsel.
514. PW-11 SH. Mahesh Kumar who deposed that on 04.09.1996 a peon from Tehsil Mehrauli had come at the House NO. 362 to serve a notice to Joginder and on his refusal to accept the same, he pasted the same on the walls.
15. PW-12 Retd. Kanoongo, Sh. Rati Ram who deposed that as per record Khasra Girdawari, the Khasra NO. 38/9/2 was in the name of Central Government in the year 1990-91 and out of the said Khasra one Bigha 4 Biswas was being cultivated by Joginder Pal and one Bigha and 8 Biswas was being cultivated by SH. Subhash in 1994-95 to 1995-96, being they were in the possession of the Land and in the year 1996-97, the said land came into possession of Smt. Renu and remaining portion of land i.e. 1 bigha 4 biswas came into the possession of Sh. Ravinder Singh and they remained into the possession of the said land and cultivated the said land and copy of the Khasra Girdwari is Ex. PW 1/G and another copy by then Patwari is Ex PW12/A and as per the record the same has now come into possession of Central Government in the year 1998-99. He further stated that as per the record of Rojnamcha Kargujari of the year 1996-97, entry regarding the change of possession of the said land is vide entry No. 85 on 18.09.1996, Ex. PW 12/B.
16. PW-13 Sh. Jogender Pal, who deposed that he had never been in possession of the said property/land and also denied to know any person by the name of Sh. Vidhya Arora . This witness was also cross examined by Ld. APP whereby also he had not supported the case of the prosecution.
17. PW-14, SI Padam Singh, who deposed that on 22.03.1997, this complaint ex.PW1/A was marked to him for necessary action and he made endorsement ex.PW14/A thereon, and also formally arrested the accused as he was granted anticipatory bail and thereafter, he was transferred and thus he handed over the file to MHC(R).
18. Thereafter, after the completion of the entire prosecution evidence, PE was closed vide order dated 29.08.08 and the matter was listed for the purpose of the recording of the statement of the accused U/s 313 Cr. P.C and the statement of accused U/s 313 Cr.P.C recorded whereby he pleaded to be innocent and falsely 6 implicated in the present case and he also wish to lead evidence in his favour and thus the matter is listed for recording/examining of defence Evidence.
19. DW-1 Chattar Pal Singh who brought the original Rapat Rojnamcha for the year 1996-97, Khasra Girdwari for the year 1994-99 and the entry at Serial NO. 85 dated 18.09.96 and copy of same is Ex DW1/A and also exhibited on record the copy of the application moved by Ravinder and proceedings and investigation conducted by Patwarri as ex.DW1/B1-9 and copy of Khasra Girdwari as Ex. DW1/C. This witness was cross examined by LD. APP for the State whereby he denied that the said documents are fake and fabricated.
20. DW_2 Baljeet Singh, Kanoongo who visited the spot bearing Khasra NO. 38/9/2 of Village Mehrauli, on the application of Ravinder Ex. DW1/B-6 dated 02.08.1996, and the land measuring 2 bighas and 12 biswas on 18.09.1996 and who recorded the statement of Niranjan Singh, i.e. DW1/B9 who stated that Ravinder was cultivating the said land and that he had also issued a notice to Joginder Pal Singh and prepared the report ex DW1/A dated 18.09.1996. He was also cross examined by LD. APP for the State.
21. DW-3 Narender who brought the original case file bearing NO. 278/RA 92, and copy of the final order ex.DW3/A and that the said order was challenged in appeal and copy of the said appeal and order is ex. DW3/B-1 to 5.
22. DW-4 Niranjan who deposed that on 18.09.1996, on inquiry by Patwari Baljit , he gave his statement ex.DW1/B-9 stating that Ravinder Singh was cultivating the land and was in possession of the said Land Khasra NO. 38/9/2 (Min.) and that neither Joginder Pal nor Jogi Ram was in possession of the said Land. He was also cross examined by LD. APP for the State.
23. DW-5 Khem Chand, who brought the record i.e. Khatoni Paimaish for the year 1980-81, as per the record the ownership of Khasra NO. 38/9/2 was in the name of Central Govt. and also stated that said land was not in the name of Jogiram. He also brought on record RTI applications received in the office of SDM on 23.11.09, and copy of same Ex. DW5/A and reply to the said RTI application and copy of the 7 same is Ex. PW bearing my signature at point A DW5/B. This witness was also cross examined by the LD. APP.
24. Thereafter, no other defence witness has been brought before the court and hence the DE was closed vide order dated 13.04.2010 and the matter was thereafter, listed for the purpose of the final arguments and the arguments heard and entire record have been perused.
25. I have heard the submission of Ld. APP for the State and the ld. counsel for the accused persons. I have also carefully perused the record.
26. The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court.
27. In the present case as many as fourteen witnesses have been examined on behalf of the prosecution, out of which PW1 V K Arora is the complainant in the present case, PW-2 SH. Jogi Ram, PW-5 Mahinder Singh, PW-6 Ram Narain, PW-7 Bishan Singh, PW_9 Chhote Lal , PW-11 Mahesh Kumar and PW13 Joginder are the public independent witnesses relied upon on behalf of the prosecution. PW-3 ASI Kailash Chand, PW-4 SI DharamDev, and PW_14 SI Padam Singh Rana are the police official witnesses and PW-8 Rajeev Sharma, PW-10 Bhanwar Singh and PW12 Retd. Kanoongo Rati Ram, are the other official witnesses who brought on record certain official record and exhibited certain documents before the Court .
28. Ld. Counsel for the accused has also relied upon various judgements/authorities such as 1997 Crl. L J. 121 of Hon'ble Rajasthan High Court in State Vs. Amit and others, 2007 (1) C .C Cases (HC) 89, of Hon'ble High Court of Delhi in St. Vs. Mahinder Singh, and 2001 (1) C C Cases HC 267 of Hon'ble High Court of Delhi in Tara Chand Chawla and State & Ors. Etc. and I have gone through the same.
29. In the present case the charge for the offence U/s 380/448 IPC has been framed against the accused and thus, the allegations against the accused are for the offence U/ 380 and 448 IPC, however, in order to prove the offence U/s 380 IPC the following ingredients are required to be prove on behalf of the 8 prosecution to convict the accused U/s 380 IPC, such as:
a) Accused removed moveable property,
b) He removed the property out of the possession of another person without his consent,
c) He did so with the dishonest intention,
d) The property was removed from the building , Tent, or vessel used as a human dwelling or for the custody of the property.
30. However, in the present case perusal of the testimonies of all the witnesses examined before the court reveals no such allegations against the accused, none of the witnesses have deposed regarding stolen articles. Even the complainant V K Arora, in his examination before the court has stated that the cooking utensils and coat of his chokidar was stolen, however, he failed to state specifically, as to whether the same were removed by the accused in his presence or that the same belongs to his chowkidar or was in possession of his Chowkidar. Moreover, the chowkidar has not been examined on behalf of the prosecution to corroborate the same fact or to strengthen the story of the prosecution. Reliance can be placed upon the judgment titled as State Vs. Amit, 1997, Cr. L J 121, wherein also in a case of theft, where the chowkidar of the house was not produced in evidence, the order of acquittal was found to be proper.
31. As far as the other PWs i.e. PW-2 Jogi Ram, PW_5 Mahinder PW-6 Ram Narain, PW-7 Bishan Singh and PW-9 Chotte Lal are concerned, they have also failed to state anything regarding stolen property or that any such articles were stolen by accused and thus, not supported the version of the prosecution.
32. Thus, in view of these facts and circumstances, whereby it has not been proved on record that the complainant/PW-1 was in possession of the utensils/cots in the property in question, and also no specific description of such articles/utensils have been given by the complainant, therefore, the major ingredients of Section 380 IPC i.e. taking or removing from the possession of any persons, has not been proved in the 9 present case in absence of any incriminating evidence available against the accused in this regard. Moreover, there is no recovery of any utensils or cots from the possession of the accused or at the instance of the accused and also there is no such investigation or explanation on behalf of the prosecution in this regard. Hence, the prosecution has failed to prove the offence U/s 380 IPC against the accused beyond all the reasonable doubts.
33. As far as the offence U/s 448 IPC is concerned, to prove the offence U/s 448 IPC, following are the ingredients ingredients of Section 441 IPC are required to be proved , such as:
A. The complainant was in possession of the property, B. The accused entered into or upon the property unlawfully as having entered into or upon such property lawfully remains there with an intention to * commit an offence * Intimidate * Insult * Annoy any person in possession of property.
34. In the judgment titled as State Vs. Mahinder Singh, 2007 (1) C. C. Cases (HC) 89, Hon'ble High Court of Delhi, has held that " on a plain reading of the penal provisions contained in Section 441 of the Code referred above, it is crystal clear that before a person can be convicted for an offence of criminal house trespass, the prosecution must prove that the house alleged to have been trespassed by the accused was in possession of the complainant/victim of the incident."
35. In the present case the complainant i.e PW-1 V K Arora, has admitted in his chief examination recorded before the court that he was not present at the said land and that he came to know that the land was trespassed by one Ravinder and thus, admitted at that time he himself was not in actual possession of the said land.
However, this fact that the accused had trespassed the said land as stated by the 10 complainant i.e. PW-1 V K Arora, is not duly corroborated by his alleged attorney Joginder Pal Singh who has appeared before the court to depose , and as per the complainant in whose possession the said land was at that time.
36. Careful perusal of the testimonies of all these witnesses reveals that PW2 Jogi Ram, PW-5 Mahinder Singh and PW-13 Jogender Pal have not supported the case of the prosecution and turned hostile and depose nothing regarding the present case incident despite being cross examined by the Ld. APP for the State.
37. As far as the testimonies of PW-6 Ram Narain, PW-7 Bishan Singh , PW-9 Chhote Lal are concerned, they all in their testimonies have clearly stated that the said land in question was in possession of the accused Ravinder Singh.
38. As per the complainant he had purchased the land from Jogi Ram. Jogi Ram has also stated in his statement that he had sold the said land to the complainant. But he has also admitted that the said land was a Govt. Land and he was only in possession of the same. He has also failed to state the Khasra number of the land which was in his possession and which he had sold to the complainant. As per the testimony of PW-1 i,.e. the complainant, he had got constructed the boundary walls and got the gate fixed on the land . In his cross examination PW-1 has stated that he had not given the name of the said contractor with whom the said construction was got done as he got it done through a casual labourers. However, PW-2 Jogi Ram from whom the complainant had allegedly purchased the said land, in his cross examination by Ld. APP has stated that he got constructed the boundary wall and also got constructed a room on the said land and fixed the gate also. If we examine the testimony of PW-2 than it appears that rather he has been evasive in his replies to the specific questions. Though he has partly supported the case of the prosecution, but has also stated that due to old age and sickness he did not remember anything . At one time he admitted that the said land was Govt. Land and he was only in possession of the same in his chief examination but at the time of his cross examination by the Ld. Counsel on behalf of the accused, he stated that he did not know as to whether the said land was a Govt. Land or not. However, on further cross examination by the Ld. 11 Defence counsel as to whether he had title deed or not showing his ownership and for whom the said land was purchased, he stated that the said land was a Govt. Land and he was only in physical possession of the same. When questions regarding the proceedings before the Tehsildar and SDM were put to him again he had started giving evasive answers to the same. Questions were also put to him regarding the persons who had their land in the vicinity of the land in question to which also he had given evasive answers when he said that " it is correct that again said it may be correct that various persons such as Mahender Singh S/o Rissal Sg. Kishan S/o Zile Singh, Chhote Lal, Ram Narain, Lakhinder etc. are the residence of the land in the vicinity of the land in question". A person who is having his land and who claims himself to be in possession of a land would reasonably have or is expected to have knowledge about the persons having possession of the adjoining lands. If we read the entire testimony of PW-2 then it does not inspires confidence and is not trustworthy.
39. As per the testimony of the complainant he was in possession of the land through his attorney Joginder Pal, but this Joginder Pal has denied this fact and he also admitted that he had served as a Patwari for long time and Patwari record of the possession of the cultivator of the land is on the basis of site inspection. The Patwari has not been examined by the prosecution but has rather been examined as DW-2 Baljeet Singh by the accused in his defence. DW-2 has stated that he had inspected the site and also recorded the statement of various persons and on the basis of the site inspection and inquiry he had entered the name of the accused in the Rapat Rojnamcha at Serial No.85 on 18.09.1996. He had also stated that he had issued the notice to Joginder Pal, who is the alleged attorney of the complainant and who was in possession of the land but the said Joginder Pal Singh has not come forward to reply to the said notice.
40. Moreover, the other Public independent witnesses i.e. PW-5 Mahinder Singh, PW-6 Ram Narayan, PW-7 Bishan Singh and PW-9 Chhote Lal, have also not 12 supported the case of the prosecution and on the other hand stated while deposing before the Court, that the accused Ravinder Singh was in possession of the said land thus rather supported the defence of the accused. Reliance can be placed upon the judgment title as Ramanlal Vs. Karthikeyan, in 1994 Cri. L J 3720, of Hon'ble Madras High Court, wherein also the prosecution witness had stated that the land was in possession of the accused for number of years and it was held that the claimof the complainant about the possession of the disputed land was not proved.
41. In 1974 Crl. L J, 172, judgment titled as Giribals Shau, Prova Mishra of Hon'ble Calcutta High Court, also while discussing the ingredients of the Section 441 IPC , it has been held that " it is abundantly clear , therefore, that the intention of the legislature is to pinpoint the intention on the part of the trespasser to comit an offence or to intimidate, insult or annoy etc. If and when the trespasser has that blameworthy mind in effecting the entry into the property in possession of some others, he is said to have committed the offence of criminal trespass....... the dominant intention of the accused in such cases of criminal trespass was to commit an offence or to insult, intimidate or annoy the occupant but mere entry upon land made under a bonafide claim of right, however, ill founded in law the claim maybe, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. "
42. The accused on the other hand has led sufficient evidence in his favour and examined five defence witnesses in his favour and in support of his defence. Ld. Defence Counsels has taken defence that the ex. PW1/L filed by the complainant itself is forged and fabricated document and also examined DW-5 in his favour who proved the copy of the RTI Applicant and reply to the same as ex. DW5/B, whereby RTI authority, denied the issuance of document ex. PW1/L.
43. DW- 2 and DW-4 have stated that the said land bearing No Khasra No.38/9/2 Village Mehrauli i.e. the land in question was in possession of Ravinder Singh or being cultivated by the Accused Ravinder Singh and DW-2 had also 13 exhibited certain documents in support of his version or inquiry conducted by him.
44. As per the Section 62 of the Indian Evidence Act, the Primary evidence means the document itself produced for inspection of the Court. Where a document is executed in a several parts, each part is primary evidence of the document.
45. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of original.
46. As per the Section 64 of the Indian Evidence Act, documents must be proved by primary evidence .
47. As per the Section 67 of the Indian Evidence Act, 1872, Proof of signatures and handwriting of person alleged to have signed or written document produced-- If a document is alleged to be signed or to have been written wholly or in part by any person, the signatures or the handwriting of so much of the document as is alleged to be in that person's hand writing must be proved to be in his hand writing.
48. In the present case it is alleged by PW-1 that he purchased the land from Jogi Ram/ PW-1 was in possession of the land in question by way of his parokar/attorney namely Joginder Pal who was also examined as PW-13 . The PW-1 also stated this fact in the Ext PW-1/A in para 2 of the same that he has been in possession of the property in question through his attorney Sh. Joginder Pal. However, PW-13 i.e. Joginder Pal who was the attorney and by whom the complainant/PW-1 in physical possession, who specifically stated in his examination in chief that I have never been in possession of property/land situated in Khasra No-38/9/2 village Meharauli. PW-13 further deposed that he did not know anything about this property nor he knew where it is situated. Also, the alleged power of attorney as claimed by PW 1 never been proved before the court. The PW-1 or PW-13 not proved this power of attorney in their testimony. Therefore it can construed that neither PW-1 nor PW-13 ever been is 14 actual physical position on date on offence i.e. 03.02.1997.
49. The PW-1 proved a document as Ex PW-1/D which is allegedly executed in favour of vivek pal and not in favour of V.K. Arora i.e. PW-1.
50. The alleged receipt is also not in favour of PW-1 but same is in favour of some vivek pal. Moreover, the attesting witnesses also not been examined to prove the factum of G.P.A. etc as well as the authenticity of these alleged documents.
51. Therefore the PW-1 as well as PW-2 failed to prove the factum of receiving and giving the consideration amount.
52. Moreover the PW-13 Joginder Pal alleged to be a attesting witnesses at serial no 1 of alleged receipt but the PW-13 in his deposition before the court not proved his signature on the receipt as well as on the agreement deed.
53. Therefore, the alleged documents of G.P.A. will etc are not proved by independent witness. The G.P.A. Ext PW-1/B alleged to be registered with the sub registrar-IV Delhi and Ext PW-1/C alleged to be registered with the same.
54. As per the law of Transfer Of Property, a transfer without the title cannot be effected. In the present case there is no title in favour of Jogiram PW-2 who claimed himself as the transferor.
55. The land in question could not have been transferred because the land in question pertained to the Central Government, the same has been in the custody or control of Tehsildar and other revenue authority.
56. In the present case the revenue authority have the charge over the land in question and has the Jurisdiction to decide the dispute with regard to the possession and title in view of the D.L.R. Act or PLR Act.
57. Hence the alleged transfer by way of G.P.A. will agreement to sell etc have no value in the eyes of the law, therefore the transfer by way of G.P.A. etc is in contravention of law of land. More over the said G.P.A. agreement to sell will, etc. were not proved or corroborated by independent witnesses.
58. The investigating agency has not investigated the genuineness of the registration of above said documents nor the complainant or prosecution made any efforts to call 15 the officer from concerned sub registrar offices.
59. The alleged documents PW-1/B-C etc. are thus, not proved in accordance with the law and not admissible in evidence.
60. The land in question is agriculture land and can only be cultivated by the person who is in possession. The land in question pertain in the name of Central Govt. and cannot be sold by any one without the authority and permission of central Govt. In the present case the cultivatory possession can be entered in the name of person who in possession at the time of entrees of kharif and rabi fasal as per the procedure as followed in the present case by Patwari DW-2 and PW12.
61. The land in question is an agriculture land and as per the DLR Act, PLR Act the revenue authority can decide the possession/title of a cultivator/Bhumidar.
62. In the present case the PW-1 or PW-2 never made any efforts before the revenue authority to take back the possession. The revenue authority followed the procedure through PW-12 and PW2 by giving an opportunity by way of notice to PW13, but neither PW-13 nor PW-1 & 2 came forward to agitate before the Revenue authority.
63. The PW-1 in his examination in chief exhibited a khatoni Paimaish Ex. PW1/L. The accused moved an RTI and in answer of the said RTI the revenue authority denied the document ex. PW1/L issued by revenue authority. DW-5 proved the copy of the RTI Application and reply to the same are annexed with each other as ex. DW5/B (Colly). PW1/L filed by the complainant but the author of the document never entered into the witness box to prove the execution of the said document. Nor any witness who could identify the signature or hand writing of the author of the Document ex.
PW1/L has been examined on record. Rather the witness DW-5 has clearly stated that the signature on ex. PW1/L is not of the Patwari namely Ved. PW1/L filed by the complainant was thus, forged and fabricated document. The complainant PW-1 himself use the legal machinery for his illegal objective and design by using the forged and fabricated document.
64. After a careful perusal of the file I have no hesitation in holding that in fact 16 the complainant in collusion , connivance and conspiracy with the Jogi Ram and Joginder has launched this false and malicious prosecution against the accused Ravinder Singh in order to grab the said land. Such complainant who have no respect for the Courts of Law and the legal system and are not afraid of filing false and fabricated documents should not go spot free and should be dealt with strictly in order curb filing of false cases. Thus, a separate complaint U/s 195 Read with 340 Cr.P.C be filed against the complainant herein namely V K Arora S/o SH. G D Arora, R/o 66 C Motiya Khan, Delhi, in this regard.
65. Also, the IO had not prepared the naksha mauka as site plan to ascertain the place of occurrence. Without the naksha Mauka the place of occurrence of theft as well as criminal trespass cannot be established against the accused.
66. In view of the above discussions it is held that the prosecution has failed to prove its case against the accused and has not been able to prove the charge for the offence U/s 380/448 IPC against the accused. Moreover, the investigating agency has not investigated the material aspect such as there is no investigation with regard to the Chowkidar; no investigation with regard to the title of the land in question; no investigation with regard to construction on the land in question by whom and when ; no investigation with regard to recovery of stolen property; no investigation with regard to the registration of GPA etc. that are ex. PW1/B etc, to Sub Registrar Offices; no investigation about the said documents with regard to genuineness of the said document from the attesting witnesses. Thus, in view of the above facts and discussion the prosecution has been miserably failed to even prove the ingredients of the Section 441 IPC, which are also essential to prove the offence U/s 448 IPC, in the present case against the accused beyond all the reasonable doubts . Rather the defence taken by the accused seems to be the probable defence and also well supported by the defence witnesses examined in the present case.
67. Hence, in view of the above discussion, I have no hesitation in holding that the prosecution has miserably failed to prove its case against the accused beyond all 17 the reasonable doubts and to bring his acts and conduct within four corners of the provisions of law constituting any of such offence or within legal ambit which would warrant his conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising out of lacuna's in the prosecution case. Accordingly, the accused is hereby acquitted for the offence U/s 380/448 IPC. His Bail Bond stands cancelled. Surety Bond stands discharged . Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. File be consigned to record room with directions not to destroy the present case file without specific direction for the same, from Hon'ble ACMM-01, as the Complainant U/s 195 Read with Section 340 Cr. P.C against the complainant herein, has been filed separately and sent to Hon'ble ACMM- 01, for further action/proceedings.
Announced in the open court
today i.e 01st June, 2010 (KIRAN BANSAL)
ADDL.CHIEF METROPOLITAN MAGISTRATE III:
SOUTH DISTT. PHC, NEW DELHI
18
State v/s Ravinder Singh
PS: Mehrauli
FIR No: 138/97
U/s: 448/380 IPC
01.06.2010
Present: Ld. Substitute APP for State.
Accused on bail with counsel.
Vide my separate Judgment, dictated to steno and announced in the open Court the accused is hereby acquitted for the offence U/s 380/448 IPC. His Bail Bond stands cancelled. Surety Bond stands discharged . Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. File be consigned to record room with directions not to destroy the present case file without specific direction for the same, from Hon'ble ACMM-01, as the Complainant U/s 195 Read with Section 340 Cr. P.C against the complainant herein, has been filed separately and sent to Hon'ble ACMM-01, for further action/proceedings.
Announced in the open court
today i.e 01st June, 2010 (KIRAN BANSAL)
ADDL.CHIEF METROPOLITAN MAGISTRATE III:
SOUTH DISTT. PHC, NEW DELHI