Delhi District Court
State vs . Ishwar Singh & Anr. on 30 October, 2012
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (SOUTH)07, NEW DELHI
FIR No. : 265/1999
U/s : 441/447/34 IPC
PS : Mehrauli
State Vs. Ishwar Singh & Anr.
JUDGMENT
a The Sl. No. of the case : 772/1/99
b The date of commission : 08.04.1999
c The date of Institution of the case : 04.08.2000
d The name of complainant : Rajesh Kumar, BDO (South)
e The name of accused : 1. Ishwar Singh S/o Sh. Harnam
: Singh R/o D306, Ambedkar Colony,
: Chattarpur, New Delhi.
: 2. Nihal Singh S/o Sh. Thakur Dass,
: R/o B81, Chattarpur Hills,
: New Delhi.
f The offence complained of : 441/447/34 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 20.10.2012
i The final order : Convicted
j The date of judgment : 30.10.2012
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused Ishwar Singh and Nihal Singh have been sent for trial on the allegations of the complainant Rajesh Kumar, BDO (South) that on 08.04.1999, at FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 1 of 13 unknown time, at properties falling in Khasra No. 157 & 139, Village Chattarpur, New Delhi, within the jurisdiction of P.S. Mehrauli, they both, in furtherance of their common intention, committed criminal trespass by entering into or upon the property owned by Gaonsabha with intent to commit an offence or to annoy its owner. Investigation was conducted and charge sheet was filed in the court on 04.08.2000.
2. Notice u/s 251 Cr.P.C. for commission of offences punishable u/s 447/34 IPC was served upon both the accused on 23.07.2002 to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined six witnesses.
4. PW1 is HC Krishna, who being duty officer, proved FIR, Ex. PW1/A.
5. PW2 is Joginder Singh, Patwari. He has deposed that on 08.04.1999, he was posted as Patwari in the office of BDO (South). On that day, he alongwith Sh. N.D. Pandey, Panchayat Secretary went to land falling in Khasra no. 139 & 157, where they found both the accused persons viz. Ishwar Singh and Nihal Singh to be in illegal possession of the land. He alongwith the Panchayat Secretary, prepared a report u/s 86A of the Delhi Land Reforms Act, Ex. PW2/A. He has also proved Khasra Girdawari of land falling in Khasra no. 139 & 157, for the year 19981999, Ex. PW2/B, as per which Gramsabha is the owner of said land.
During cross examination by the Ld. Defence Counsel, the witness has stated that both Khasra no. 139 & 157 comprise of 1 acre land each. He was informed FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 2 of 13 about the encroachment by the Panchayat Secretary. The land is inhabited and constitutes a residential area. No photographs were taken by them. He can not tell at what time they reached at the spot and when they left from there. He used to visit the Gramsabha land after every six months at the time of preparing Girdawari. He can not tell as to when the construction had first taken place in the land. Nobody else had encroached upon the land in question, except the accused persons. The witness correctly identified both the accused persons present in the court.
6. PW3 is Ct. Satpal. He has deposed that on 17.06.1999, he joined investigation of the case alongwith IO and both the accused persons were arrested in his presence and their personal search was carried out vide personal search memos, Ex. PW3/A & Ex. PW3/B. The information regarding arrest of the accused persons was given vide memo, Ex. PW3/C. Both the accused were admitted to bail by the IO.
7. PW 4 is the complainant Rajesh Kumar. He has deposed that on 08.04.1999, he received a report of Halka Patwari and Panchayat Secretary regarding encroachment on Gramsabha land falling in Khasra no. 139 & 157, Village Chattarpur. Accused Ishwar Singh encroached upon land falling in Khasra no. 157 and accused Nihal Singh encroached upon land falling in Khasra no. 139. On the basis of the report, he lodged a complaint against both the accused persons, which is Ex. PW4/A. He had enclosed copy of Aksh Shijra, Girdawari and Khatauni alongwith his complaint.
FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 3 of 13 During cross examination by the Ld. Defence Counsel, the witness has stated that he does not remember as to whether he had visited the spot on 21.04.1999 or not. He did not join the investigation with the IO. He did not see both the accused persons at the spot and he had lodged the complaint on the basis of a report submitted by the Halka Patwari.
8. PW5 is N.D. Pandey. He has deposed that on 08.04.1999, he was posted as Panchayat Secretary at Village Chattarpur. He alongwith Halka Patwari, whose name he does not remember, visited the spot. Accused Nihal Singh had encroached upon land falling in Khasra no. 139, Village Chattarpur and accused Ishwar Singh had encroached upon land falling in Khasra no. 157, Village Chattarpur. A demarcation report was prepared by the Halka Patwari which is Ex. PW2/A. He failed to identify the accused persons. He does not have any personal knowledge about the accused persons. He had signed the demarcation report on the spot alongwith Halka Patwari.
During cross examination by the Ld. Defence Counsel, the witness has stated that he can not tell as to whether any construction was raised on land falling in Khasra no. 139 & 157 or not. On 08.01.1999, when he had gone to the spot alongwith Halka Patwari, accused persons were not present there. He denied that he submitted a false report against the accused persons or that he did not visit the site at all.
9. PW6 is IO HC Ranbir Singh. He has deposed that on 21.04.1999, FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 4 of 13 investigation of the case was entrusted to him. On that day, he went to the office of BDO (South) where he met the BDO (South) Mr. Rajesh Kumar. He accompanied the BDO (South) to the spot i.e. land falling in Khasra no. 139 & 157, Village Chattarpur. He prepared a site plan at the instance of the complainant Mr. Rajesh Kumar, BDO (South), Ex. PW6/A. Thereafter, he made an attempt to search both the accused persons. They again went to the office of BDO (South). He recorded the statements of complainant Rajesh Kumar, N.D. Pandey (Panchayat Secretary) and Joginder Singh (Halka Patwari). He took Aksh Shijra of lands falling in Khasra no. 139 & 157 from Halka Patwari and seized the same vide seizure memo, Ex. PW6/B. He also took Khatauni of lands falling in Khasra no. 139 & 157 from Halka Patwari and seized the same vide seizure memo, Ex. PW6/C. He collected form P4 from the Halka Patwari i.e. Khasra Girdawari of the land in question for the year 19981999 which is Ex. PW2/B. On 17.06.1999, he arrested accused Ishwar Singh vide arrest memo, Ex. PW3/C and conducted his personal search vide personal search memo, Ex. PW3/D. He also arrested accused Nihar Singh and conducted his personal search vide personal search memo, Ex. PW3/A. During cross examination by the Ld. Defence Counsel, the witness has stated that at the time of the incident, accused Ishwar Singh used to reside in land falling in Khasra no. 157. Accused Nihal Singh was in possession of land falling in Khasra no. 139 and construction was raised on that land.
FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 5 of 13
10. All the incriminating evidence was put to both the accused persons and their statements U/s 313 Cr.P.C. were recorded to which they denied their involvement in the offence. Accused Ishwar Singh stated that he was living upon the land in question since 1988, which was given to him by one Mahesh Pant, who is still in possession of the land. Accused Nihal Singh stated that his brother was living upon the land since 1988. Accused Ishwar Singh preferred to adduce defence evidence while accused Nihal Singh chose not to adduce any defence evidence.
11. In order to substantiate his defence, both the accused persons examined four witnesses.
12. DW1 is Bhagat Singh. He has deposed that he is acquainted with both the accused persons since the last 40 years who are both residing in the same colony. Both the accused persons are not in possession of the property in question, as alleged and both the accused persons have been falsely implicated in the present case. When the present case was registered in June, 1999, he was residing near Khasra no. 139 & 157.
During cross examination by Ld. APP for State, the witness has denied that he is deposing falsely at the instance of the accused persons.
13. DW2 is Sameer Singh. He has deposed that he is acquainted with both the accused persons since the last 40 years who are both residing in the same colony. Both the accused persons are not in possession of the property in question, as alleged and both the accused persons have been falsely implicated in the present FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 6 of 13 case. When the present case was registered in June, 1999, he was residing near Khasra no. 139 & 157.
During cross examination by Ld. APP for State, the witness has denied that accused persons had encroached upon Gramsabha land falling in Khasra no. 139 & 157, Village Chattarpur, New Delhi.
14. DW3 is Charan Singh. He has deposed that both the accused persons are his neighbourers. The accused persons had not encroached upon any Gramsabha land and they have been falsely implicated in the present case.
During cross examination by Ld. APP for State, the witness has deposed that he does not know the particulars of the property in dispute. However, it might be land falling in Khasra no. 170. He has not seen the documents of ownership pertaining to the property in question.
15. DW4 is Harpreet. He has deposed that both the accused persons are his friends. The accused persons had not encroached upon any Gramsabha land and they have been falsely implicated in the present case.
During cross examination by Ld. APP for State, the witness has deposed that he has not seen the documents of ownership pertaining to the property in question.
16. The court has heard the submissions made by Ld. APP for the state as well as the Ld. defence counsel.
17. Ld. APP for the state submits that both the accused persons are liable to be convicted for offences charged as the prosecution has been able to bring home guilt FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 7 of 13 of both the accused persons.
18. On the other hand, it is contended by the Ld. defence counsel that PW5 N.D. Pandey failed to identify the accused persons. He admitted that he does not even know the names of the accused persons. He could not even tell as to whether any construction was being carried out on the spot or not.
19. Secondly, it is contended by the Ld. Defence counsel that neither any photographs of the land alleged to have been encroached by the accused persons were taken, nor any building material like cement, masonary articles etc. were seized by the IO to establish that the accused persons encroached upon the Gramsabha land and raised any construction upon the same. Therefore, the prosecution has miserably failed to establish that the accused persons had encroached upon the Gramsabha land falling in Khasra no. 139 & 157. Both the accused persons deserve to be acquitted of the charges levelled against them.
20. On the other hand, it is contended by Ld. APP for State that PW5 N.D. Pandey had joined investigation in this case in April, 1999 whereas he deposed in the court on 22.07.2006 i.e. after a gap of more than 7 years. He had acted in official capacity and during the course of discharging his official duties, he comes across a large number of similar matters. Some loss of memory is quite natural. Reliance is placed upon judgment delivered by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB)' wherein it has been observed that normal discrepancies or errors do creep in FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 8 of 13 because every human being has human failings and limitations. It has to be ascertained whether the prosecution has proved its case by looking at broad probabilities of the case and thereafter, to see and identify embellishments and then determine whether embellishments have dented broad probabilities proved by the prosecution. Where a fool proof case without any embellishment or variation is brought before a court, that by itself becomes a ground to suspect credibility of case.
Moreover, PW5 N.D. Pandey has proved the report dated 08.04.1999, Ex. PW2/A, prepared by Joginder Singh, Halka Patwari which was countersigned by him. In that report, the names of both the accused persons and the particulars of the property encroached by them have been specifically mentioned. The said report has to be read alongwith the oral testimony of the witness. From the perusal of the report, Ex. PW2/A, the identity and names of the accused persons are fully established.
21. Secondly, it is contended by Ld. APP for State that it is not essential to file photographs of the spot or to seize any building construction material to substantiate or establish that the accused persons had encroached upon Gramsabha land and had raised illegal construction on the said land. Even in the absence of the same, the evidence adduced by the prosecution on record is sufficient to substantiate that the accused persons had committed criminal trespass by encroaching upon Gramsabha land falling in Khasra no. 139 & 157, Village FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 9 of 13 Chattarpur, New Delhi.
22. Thirdly, it is contended by Ld. APP for State that the accused Ishwar Singh had filed two miscellaneous applications one dated 25.11.2006 and another dated 18.12.2006 during pendency of trial. Alongwith application dated 25.11.2006, the accused Ishwar Singh had attached a complaint dated 27.09.2006 addressed by him to the Commissioner of Police, Delhi. In both these applications, the accused Ishwar Singh has stated that he is residing, alongwith his family, in H. No. D306/732, Khasra No. 157, Street No. 36, Chattarpur Hills, New Delhi74.
On the other hand, the defence of accused Ishwar Singh, in his statement recorded u/s 313 Cr.P.C., is that he was residing upon the property in question since 1988 and he had given the said property falling in Khasra no. 157 to one Mahesh Pant who is still in possession of this land. Moreover, the defence witnesses have deposed that the accused persons are not in possession of any Gramsabha land. The admission by accused Ishwar Singh to the effect that he is residing in H. No. D306/732, Khasra No. 157, Street No. 36, Chattarpur Hills, New Delhi74 on one hand and his contradictory defence on the other hand exposes the falsity of his defence and fortifies the case of the prosecution that he had committed criminal trespass by encroaching upon Gramsabha land falling in Khasra no. 157, Village Chattarpur, New Delhi.
23. The court has perused the record with the assistance of Ld. APP for State and the Ld. Defence Counsel.
FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 10 of 13
24. There is merit in the submissions made by Ld. APP for State. PW5 N.D. Pandey has proved the report, Ex. PW2/A which was prepared by Jogender Singh, Halka Patwari and countersigned by him. In the said report, the names of both the accused persons and the particulars of the property, alleged to have been encroached by them, have been specifically mentioned. Moreover, PW5 N.D. Pandey had deposed in the court after a lapse of more than 7 years after the occurrence of the alleged incident and loss of memory in failing to identify the accused persons is quite natural. (Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB). As per Khasra Girdawari for the year 19981999, Village Chattarpur, New Delhi, Ex. PW2/B, land falling in Khasra no. 139 & 157 is owned by Gramsabha. The accused persons have also been identified by PW2 Jogender Singh, Halka Patwari, PW3 Ct. Satpal and PW6 IO HC Ranbir Singh.
25. It is well settled proposition of law that no specific form or quantum of evidence is required to establish a fact. It is the prerogative of a party to a proceedings to take a call as to by what form and by what quantum of evidence, it wishes to substantiate its case and establish a fact. Non filing of photographs of the spot and failure to seize the building construction material does not by itself effect the prosecution case. From the testimonies of PW2 Jogender Singh, Halka Patwari, PW4 Rajesh Kumar, BDO and PW5 N.D. Pandey, Panchayat Secretary, prosecution has successfully established that both the accused persons committed criminal trespass by encroaching upon Gramsabha land falling in Khasra no. 139 & FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 11 of 13 157, Village Chattarpur, New Delhi.
26. The defence set up by accused Ishwar Singh in his statement recorded u/s 313 Cr.P.C. is that he was living on property falling in Khasra no. 157, Village Chattarpur, New Delhi since 1988, but he had given this land to one Mahesh Pant who is still in possession of the said land. The defence set up by accused Nihal Singh is that his brother was living on the property falling in Khasra no. 139/157, Village Chattarpur, New Delhi, since 1988 and he has nothing to do with this case. In order to substantiate their defence, the accused persons examined four witnesses who deposed that the accused persons have been falsely implicated in this case and that they are not in possession of the properties in question or in possession of any Gramsabha land. However, none of the defence witnesses have stated about the particulars of the property alleged to have been encroached by them and have made generalized statements without giving specific details. During cross examination, they have also conceded that they have not seen the documents of title pertaining to the properties in question. One defence witness viz. DW3 Charan Singh admitted that he does not know the particulars of the property alleged to have been encroached by the accused persons. He has stated that the properties in question fall in Khasra no. 170. Accused Ishwar Singh has rather admitted in his statement, recorded u/s 313 Cr.P.C. that he was residing at the property in question since 1988. He further stated that he had given the said property to one Mahesh Pant. Therefore, both the accused persons have miserably failed to disprove the evidence FIR No. 265/1999 PS Mehrauli State vs. Ishwar Singh & Anr. Page 12 of 13 adduced by the prosecution.
27. Considering the evidence adduced by the prosecution, which is quite cogent and convincing, the court holds that the prosecution has successfully discharged the onus of proving that on 08.04.1999, at unknown time, at properties falling in Khasra No. 157 & 139, Village Chattarpur, New Delhi, within the jurisdiction of P.S. Mehrauli, both the accused Ishwar Singh and Nihal Singh, in furtherance of their common intention, committed criminal trespass by entering into or upon the property owned by Gaonsabha with intent to commit an offence or to annoy its owner. Both the accused persons are held guilty for having committed offence punishable u/s 447/34 IPC and are accordingly, convicted for having committed the said offence.
Announced in the open (Sandeep Garg)
Court on 30.10.2012 MM(South)07,
New Delhi.
FIR No. 265/1999 PS Mehrauli
State vs. Ishwar Singh & Anr. Page 13 of 13