Delhi District Court
State vs Rakesh & Ors. on 11 April, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Rakesh & Ors.
FIR No.10/92
PS:Ashok Vihar
U/s 448/511/454/380/365/34 IPC.
JUDGMENT
A) Sr. No. of the Case : 451/2
B) The date of commission : 05/01/1992
of offence.
C) The name of the complainant : Gurpreet Singh S/o Tara Singh
R/o 621, Roop Nagar, Delhi.
D) Name of accused : 1. Rakesh S/o Zile Singh
2. Matu S/o Bharte
3. Bhim Singh S/o Rati Ram
4. Mukesh S/o Narain Singh
5. Satbir Singh S/o Ramphal
6. Kuldeep Singh S/o Dalip Singh
7. Rajinder Singh Dahiya
S/o Hari Kishan
E) Offence complained of : U/s 448/511/454/380/365/34 IPC
F) The plea of accused : Pleaded not guilty.
G) Final order : Acquitted
H) The date of such order : 11.04.2012
Date of Institution : 10/08/1992
Judgment reserved on : Not reserved.
Judgment announced on : 11/04/2012
State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 1/21
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 05/01/1992 at about 9:45 am all the accused attempted to tress pass at property No. 81/6, Ashok Vihar Ph-II, Delhi, within the jurisdiction of PS Ashok Vihar, belonging to Gurprit Singh S/o Sh. Tara Singh which he purchased from Sh. Rajesh Gupta on 17/08/90 and since 17/08/90 the possession of the plot was with Gurprit Singh which has two room and a kitchen and garage constructed thereon. And on the above plot Ram Kumar and his wife being the employee of Gurprit Singh used to look after the Plot and on the above date all the accused committed lurking house tress pass and house breaking and committed theft of articles lying in the above plot, mentioned in list Mark-A and all accused abducted Smt. Paltan Dass, Ram Dass, Sita and Budh Dass to cause the above persons to be secretly and wrongfully confined and thereby all the accused committed offences U/s 448/511/454/380/365/34 IPC IPC.
2. After completion of investigation challan was filed by the police U/s 448/511/454/380/365/34 IPC IPC of which cognizance was taken by the Ld. Predecessor of this court. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
3. Vide order dated 03/11/00 charge U/s 448/511/454/380/365/34 IPC was framed against all the accused persons for trial of offences U/s 448/511/454/380/365/34 IPC by the Ld. Predecessor to which accused State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 2/21 persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
4. In order to prove their case the prosecution has examined 6 witnesses whose brief scrutiny is as under:
PW-1 Rajiv Gupta deposed that in the year 1990 he had purchased the plot No.1/6, Ashok Vihar Ph-II, from one Rajinder Singh Dahiya and Power of Attorney and other relevant documents were executed. So far as he remember the payment was made by him and the power of attorney was executed in the name of his wife Usha Gupta and approximately he paid Rs.1,75,000/- towards the purchase of plot and though he do not remember the exact date of sale but it was sold in the year 1992 to one Gurpreet Singh for a sum of Rs.3.0 lakhs and power of attorney and all necessary documents were executed between Gurpreet Singh and him and his wife. Further he deposed that the possession of the plot was also handed over to Gurpreet Singh and at the time of purchase of plot by him, there was two/three rooms were constructed upon the plot of 500 sqyds. Further he deposed that thereafter he came to know from Gurpreet Singh that Rajinder Singh Dahiya and their accomplishes taken the forcible possession of the plot, at the time of sale he handed over all the document sin his favour as well as in favour of his wife purchased from Rajinder Singh Dahiya to Gurpreet Singh and he have seen the photocopy of the GPA already placed on file which is mark-A which was executed on 17/08/1990 infavour of Harmeet Karu W/o Gurpreet Singh, this document was duly registered with the Sub Registrar. He further deposed that he has also seen the photocopy of Agreement to sell between Usha Gupta his wife and Sh. Gurpreet Singh State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 3/21 vide Mark-B. The same was executed as per the document on 17/08/90 (objected to). Further he deposed that the original record was called from the DDA on the application of accused Rajinder Singh Dahiya dtd.9/3/00 and the statement of DDA officials was recorded in the presence of all the accused persons thereby exhibiting all the relevant documents as such any of the objection of the defence counsel and the fact that his witness was not present when the documents were executed, his further statement is deferred as even otherwise Sh. K.R. Thakur Ld. Defence Counsel for the accused Mukesh already submitted that he has been engaged today and is not in a position to cross examine the witness and requesting adjournment.
On 22/09/07 he was recalled for further examination in chief where he deposed that he and his wife have purchased the said property No. Plot No.B 1/6 A/V Ph-II from Rajinder Singh Dahiya and he had sold the said property to Gurpreet Singh Ex.P-1 i.e. Perpetual Lease and P-2 i.e. Mutation order were handed over to him by Rajinder Singh Dahiya the copy of the same already Ex.P-1 and P-2. He further deposed that the copy of GPA which was made by Rajinder Singh in his favour is Ex.P-3 and signed by Rajinder Singh at point X. he further deposed that on the said document at point Y said Krishan Kumar had written his name, parentage and address as witness. Similarly the documents Ex.P-4 i.e. Deed of Agreement was executed by Rajinder Singh Dahiya in favour of his wife Usha Gupta and same bears signatures of Rajinder Singh Dahiya at point Y. on these documents Asha Ram and P.C. Goyal signed as witness and entered their particulars at point A and B. Will Ex.P-5, into 2 pages is executed by Rajinder Singh Dahiya bears his signatures at point X which was made in favour of his wife the sma ewas also signed by Krishan Kumar at point Y. SPA Ex. P-6 which runs into 2 pages was made by Sh. Rajinder Singh Dahiya in his favour bears his signatures at point X and signatures of Asha State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 4/21 Ram and P.C. Goyal at points Y and Z. GPA Ex. P-7 made by Rajiv Gupta which runs into 6 pages was made by him in favour of Harmeet Kaur W/o Gurpreet Singh and same bears his signatures at point A-1 to A-2. Agreement to sell made by his wife Usha Gupta Ex. P-8 runs into 4 pages in favour of Gurpreet Singh and same bears signatures of his wife at point A-1 to A-2 and signatures of Gurpreet Singh at point B, B1 and B-2, Will made by his wife Usha Gupta Ex.P-9 runs into two pages and same bears her signatures at point X and his signatures at point Y. SPA Ex.P-10 made by him which runs into two pages is bears his signatures at point X which he made in favour of Harmeet Kaur. Original of all the documents seen and returned.
Further examination in chief of this witness was deferred and was never concluded.
PW-2 is Gurpreet Singh who deposed that on 17/08/90 he purchased the property No. B-1/6, Ashok Vihar, Ph-II, from Rajive Gupta. The payment for the said purchase was given vide cheque No.352518 for Rs.3 lakhs dated 17/8/90 in favour of Smt. Usha Gupta W/o Rajiv Gupta. He further deposed that the property was of 500 sq. yds consisting two rooms, one kitchen, one bathroom, one store and garrage were constructed. He further deposed that he could not further construct the property due to some reasons. Further he deposed that he appointed one Ram Kumar for guarding the property. He further deposed that on 22/12/91 he received a telephonic information from Ram Kumar through his brother that 5-6 persons had entered the said property and at that time Smt. Mamta W/o Ram Kumar was present and they had threatened the said Mamata at that time Ram Kumar was not present. He further deposed that his brother Harpreet Singh went to the spot and after that went to PS and reported the State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 5/21 matter to the police. On the next day morning he went to PS Ashok Vihar from there along with one SI he went to the house of Rajiv Gupta at A-1 CC Colony from whom the said property was purchased there they made enquiry from the Rajiv Gupta about the incident but he shows his ignorance about the same. Further he deposed that on 05/01/92 he received a telephonic call in the morning on of one Ram Swaroop @ Ram Kumar who informed him that when he went to see his parents who were residing at B-1/6, Ashok Vihar but he found about 5-6 strangers roaming in the garden of the said property. On this he along with his brother and other relatives went to the said property, they saw 5-6 strangers in the property and then they informed the police. They knocked at the door, they opened the door and started running but all these strangers were nabbed by him with the help of his relatives and in the meantime the police also came. Further he deposed that he came to know the names of those strangers as Mukesh Kumar, Satbir Singh, Matoo, Rakesh and Bhim Singh. Further he identify the accused persons present in the court by names but those five persons were present in the court on that day. Further he deposed that on checking he found furniture, carpet, house hold goods missing from the house. The parents of the chowkidar Ram Kumar and the guests of the parents were missing from the house. He lodged the complaint PW-2/A which bears his signatures at point A. further he deposed that he also gave the list of missing articles belonging to him and Ram Kumar to the police same is Ex.PW-2/B. Further he deposed that he handed over to police the photocopies of the receipt of Rs.3 lakhs, deed of will of the aforesaid property.
This witness was recalled for cross examination on 18/05/06 and was cross examined by Sh. R.S. Malik where he deposed that it is correct that on 17/08/90 no sale deed was executed by the parties (he have borrow the State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 6/21 loan on property No.B1/6 Ashok Vihar Ph-II). Further he deposed that he had taken loan of Rs.37.0 lakhs on the above said property. Further he deposed that there are one basement and four other floor constructed at present on the above said property. Further he deposed that one Ram Kumar was appointed by him at a Guard on the above said property. He denied the suggestion that property No.B1/6, Ashok Vihar Ph-II, was in possession of accused Rajinder Singh Dahiya and his family. Further he deposed that on 22/12/91 he received call but some persons came to said property. Further he deposed that there after no call received by him on that day. Again said he received a telephone call on 05/01/92. he further deposed that at that time he was at his house at Roop Nagar. Further he deposed that he did not purchase the above said property from Rajinder Singh Dahiya. He further deposed that he did not know Rajinder Singh Dahiya. Further he deposed that this property originally belonged to Sh. Har Kishan Advocae. He further deposed that this property was allotted to him as an alternative plot as his land was acquired by the Government. Further he deposed that after the death of Sh. Har Kishan Singh advocate this property was inherited by Rajinder Singh Dahiya. Further he denied the suggestion that he conspired with Smt. Rajiv Gupta and Mrs. Gupta to disposes Sh. Rajinder Singh Dahiya and subsequently with the help of local police they succeed in taking the possession from Rajinder Singh Dahiya. Further he denied the suggestion that he received the call on 05/01/92 through which he came to know that it is good opportunity to take the possession of the above property in the absence of Sh. Rajinder Singh Dahiy and his family. He further denied the suggestion that he send 10-12 persons at the above property for the purpose of dispossession of Sh. Rajinder Singh Dahiya and his family. All the five fllor of the property are occupied by him. He further deposed that on ground floor a Restaurant, on State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 7/21 the fist floor there is beauty parlour namely Beauty Bells and other floors are for residential purposes and are occupied by him and the basement is lying vacant. Further he deposed that he do not know whether Rajinder Singh Dahiya has filed any criminal complaint against him, his wife, Rajiv Gupta Mr.s Gupta and police officer of PS Ashok Vihar. Furhter he deposed that he cannot tell the name and particulars of accused person, although he know the name of all the accused persons. He further identified the accused Rajinder Singh Dahiya. Further he deposed that this case was registered on 05/01/92. further he denied the suggestion that he has not purchased the property No.B1/6, Ashok Vihar Ph-II, Delhi. He further denied the suggestion that on 05/01/92 he have occupied the above said property in the absence of accused Rajinder Singh Dahiya. He further denied the suggestion that a false case was registered against the accused with connivance of Rajiv Gupta M.S. Gupta and police officier and higher authority. He further denied the suggestion that he have not right title or interest and possession and ownership or in the above said property. He further denied the suggestion that public witness are not known to him except Krishan Kumar and that he is deposing falsely.
PW-3 Krishan Kumar deposed that he knows R.S. Dahiya personally. Further he deposed that he witnessed the transaction of the plot between RS Dahiya and Rajiv Gupta. He further deposed that the Power of Attorney in which he signed as witness was delivered by Sh. R.S. Dahiya to Sh. Rajiv Gupta and same was correct, copy of the same is mark-A. Further examination of this witness was deferred but never concluded.
PW-4 Ms. Usha Gupta deposed that in the year 1987 her husband had purchased a plot bearing NO,.B-1/6, Ph-II, Ashok Vihar from Rajinder State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 8/21 Dahiya who was present in the court on that day. She further deposed that all the documents were executed by Rajinder Dahiya. The plot was purchased by her husband in the consideration of Rs.1,75,000/- and some documents were prepared by the accused in favour of her regarding this plot. She further deposed that on 17/08/90 he had sold the above said plot to one Gurpreet Singh in the consideration of Rs.3.0 lacs. Further she deposed that the possession of plot was given to Sh. Gurpreet Singh and the documents were executed by him in the favour of Sh. Gurpreet Singh and original documents were also handed over to Sh. Gurpreet Singh.
Further examination of this witness was deferred for want of original documents.
On 22/09/07 this witness was further examined in chief where she deposed that she and her husband have purchased the said property No.Plot No.1/6, A/V Ph-II from Rajinder Singh Dahiya and she have sold the said property to Gurpreet Singh Ex.P-1 i.e. Perpetual lease and P-2 i.e. Mutation order were handed over to her husband by Rajinder Singh Dahiya. The photocopies of same is Ex.P-1 and P-2 (OSR). Further she deposed that the copy of GPA which was made by Rajinder Singh in favour of her husband is Ex.P-3 and same was signed by Rajinder Singh at point X. Similarly the documents Ex.P-4 i.e. Deed of Agreement was executed by Rajinder Singh Dahiya in her favour and same bears signatures of Rajinder Singh Dahiya at point Y. further she deposed that on these documents Asha Ram and P.C. Goyal signed as witness and entered their particulars at point A and B. Will Ex.P-5, which runs into 2 pages is executed by Rajinder Singh Dahiya bears his signatures at point X which was made in her favour and the same was signed by Krishan Kumar at point Y. SPA Ex.P-6 which runs into 2 pages was made by Sh. Rajinder Singh Dahiya in favour of her husband. Same bears his signatures at point X and signatures of Asha State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 9/21 Ram and P.C. Goyal at points Y and Z. GPA Ex.P-7 made by her husband Rajiv gupta which runs into 6 pages was made by him in favour of Harmeet Kaur W/o Gurpreet Singh and same bears his signature at point A-1 to A-2. Agreement to sell made by her Ex.P-8 which runs into 4 pages in favour of Gurpreet Singh and same bears her signature at point A1 to A2, Will made by her Ex.P-9 which runs into two pages and same bears her signatures at point X and her husband signature at point Y. SPA Ex.P-10 made by her husbandruns in two pages is bears his signatures at point X which he made infavour of Harmeet Kaur.
Further examination of this witness was deferred.
On 01/12/07 this witness was further examined in chief where she deposed that she came to know that some dispute has arise regarding this property after they handed over this property to the Gurpreet Singh. The possession of the said property was also handed over to said Gurpreet Singh when they sold the same. Further she deposed that the said property No.B-1/6 A/V Ph-II was never sold to accused persons namely Rakesh, Matu, Bhim Singh, Mukesh, Satbir Singh, Kuldeep Singh and Rajinder Singh Dahiya by her and or by her husband.
This witness was cross examined by Sh. R.S. Malik Ld. Counsel for the accused persons where she deposed that she had not given to the police the statement which she have given in the court and she never visited to the PS regarding this case. Further she do not know when they have purchased the said property the owner of the said property was Har Kishan father of accused Rajinder Singh Dahiya. Further she vol. deposed that they had purchased the property from accused Rajinder Singh Dahiya. Further she deposed that she do not know whether the said Har Kishan is the father of accused RS Dahiya but the perpetual deed Ex.P-1 is i the name of Har Krishan S/o Ram Nath. Further she deposed that she do not State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 10/21 know Sh. Krishan Kr. Gupta. She further deposed that there might be possibility that they had entered into agreement for purchasing the property with accused RS Dahiya through Sh. Krishan Kr. Gupta of Ashok Vihar. She further deposed that at the time of agreement 1,75,000/- was given to accused RS Dahiya for purchasing the said property. Further she deposed that she do not know whether the sale consideration was fixed for Rs.35 lacs for the purchasing of said plot. She have no knowledge as to whether remaining sale consideration was to be paid at the time of registration was not in the favour of accused R.S. Dahiya. She vol deposed that her husband may be knowing the same as he was dealing in the said transaction. Further she deposed that agreement was entered into between her and accused R.S. Dahiya. Further she deposed that she have no knowledge whether accused R.S. Dahiya obtained letter of administration or mutation order from DDA or had offered to hand over the same and to execute the sale deed against receipt of balance sale consideration. However, it is incorrect that she refused to get the sale deed executed in her favour on the ground that possession was with them and therefore there was no need to execute the sale deed. Further she denied the suggestion that no sale deed was executed in her favour pertaining to property in question. She further deposed that said sale deed was handed over by her to subsequent buyer namely Gurpreet Singh at the time of sale of property in question by her to him. She do not remember the place where the sale deed was regd as it is about 21 years ago when same was regd. Further she deposed that it is correct that accused had revoked the power of attorney earlier executed in her favour or had sent copy thereof to him. She did not receive copy of attorney Mark-A to her at any point of time. Further she do not remember whether copy of mutation order mark-B and copy of letter of administration mark-C were received by her from the accused or State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 11/21 not as more than 21 years have passed. She further deposed that she have no knowledge whether accused R.S. Dahiya was the only Lr of deceased Late Har Krishan who was original allottee of the plot in question. Further she denied the suggestion that she sold the property in question to Gurpreet Singh without their being any sale deed in her favour or that accused R.S. Dahiya was in possession of said property at the time of its sale to Gurpreet Singh or that deceased sister of accused R.S. Dahiya was in physical possession at that time. Further she denied the suggestion that accused persons except accused R.S. Dahiya and accused Kuldeep Singh were in actual physical possession of said property at that time. She further denied the suggestion that she did not purchase the property in question from accused R.S. Dahiya or that no valid title in request of property in question passed from accused R.S. Dahiya in her favour.
PW-5 Amit Shukla deposed that he has brought the original documents namely Mutation of Plot No.6, Block B-I Wazirpur, Ph-II infavour of Rajender Singh, GPA executed by Rajeev Gupta S/o Sh. Satya Prakash Gupta R/o A-1, CC Colony in favour of Smt. Harmeet Kaur w/o Sh. Gurpreet Singh R/o 6/21, Roop Nagar, Delhi duly regd with sub Registrar, perpetual deed issued by Delhi Admn Land and Housing Deptt in favour of Sh. Har Kishan S/o Sh. Ram Nath duly stamped, agreement to sell executed between Smt. Usha Gupta W/o Sh. Rajeev Gupta and Sh. Gurpreet singh s/o Tar Singh, Spl. Power of Attorney executed by Rajinder Singh S/o Late Sh. Harkishan in favour of Sh. Rajeev Gupta S/o Sh. Satya Prakash Gupta, conveyance deed issued by DDA in favour of Rajinder Singh Dahiya S/o Late Sh. Harkishan duly regd, will executed by Rajinder Singh s/o Late Sh. Harkishan in favour of Smt. Usha Gupta w/o Sh. Rajeev Gupta duly regd with Sub Registrar, will deed executed by Smt. Usha Gupta in favour of her State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 12/21 heir/successors, representatives and assign duly regd with Sub Registrar, SPA executed by Rajeev Gupta s/o Sh. Satya Prakash gupta in favour of Smt. Harmeet Kaur w/o Sh. Gurpreet Singh, agreement deed executed by Sh. Rajinder Singh S/o Late Sh. Harkishan in favour of Smt. Usha Gupta w/o Sh. Rajiv Gupta, GPA executed by Rajinder Singh S/o Late Sh. Harkishan in favour of Sh. Rajeev Gupta s/o Sh. Satya Prakash Gupta duly regd with Sub Registrar.
His further examination in chief was deferred for original copies of documents.
On 22/09/07 this witness was further examined in chief where he deposed that the original documents of property No.Plot No.6, Block B-1, Ph-II, A/V are brought by Budh Sain, CPA, Noida Branch as he have been transferred from the CPA to Audit Department. Further he deposed that the doucment of the said property are summoned by Court as these documents are lying with ICICI Bank. The photocopy of perpetual lease is Ex.P-1 which runs into 10 pages and mutation order runs into 8 pages. Deed of agreement Ex.P-4 into 7 pages, Will Ex. P-5, which runs into 2 pages, SPA Ex. P-6 into 2 pages, GPA Ex. P-7 made by Rajiv Gupta into 6 pages. Agreement to sell made by Usha Gupta Ex. P-8 into 4 pages. Will made by Usha gupta Ex.P-9 into two pages. SPA Ex. P-10 made by Rajiv Gupta into two pages. Conveyance Deed dd.05/03/99 Ex. P-11 into 6 pages.
This witness was cross examined by Sh. R.S. Malik Ld. Counsel for the accused persons where he deposed that the documents have been brought in the case of Gurpreet Singh. Further he deposed that he do not have any personal knowledge about the facts of the present case. He vol. deposed that he is deposing on the basis of record available in the bank. Further he deposed that he cannot tell the exact amount of loan which was taken from ICICI Bank in absence of any record relating to the said State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 13/21 transaction. He further deposed that no such loan was taken in his tenure with relevant branch of ICICI Bank and he is still working in Noida Branch of ICICI Bank but in different Unit/Deptt.
5. P.E. was closed vide order dated 21.08.2010 and statement of accused persons U/s. 313 Cr.P.C was recorded to which the accused persons had denied all the allegation against them but preferred not to lead DE. Thereafter the matter was fixed for arguments.
6. Ld. APP has argued that the prosecution has been able to prove their case for offence U/s. 448/511 I.P.C & U/s. 454 IPC since the complainant has identified the accused persons in the court as the one who were present in the property of the complainant and apprehended on the spot. Further he has fairly conceded that in the absence of the testimonies of PW Paltan Dass, Ram Dass, Sita and Budh Dass the allegations of the accused persons abducting and wrongfully confining them could not be proved.
7. On the other hand Ld. Defence Counsel has argued that the prosecution has miserably failed to discharge its onus.
8. In my opinion from the material on record, and after hearing the rival contentions I am of the view the charges against the accused persons could not be proved.
State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 14/219. It was the case of the prosecution that the property No. B-1/6, Ashok Vihar phase - II belonging to the complainant which was in his possession and he had kept one Ram Kumar and his wife to look after the same, was trespassed upon and the employees were abducted and wrongfully confined. Since it has been conceded by the Ld. APP and also that there is nothing on record to prove the charges of offence publishable under Section 380/365 IPC, the same are not being discussed. Now as far as the allegations of offence U/s. 448/511 IPC and 454 IPC goes, the same are not made out against the accused persons because of the reasons mentioned below:
Sec 448 I.P.C provides Punishment for house-trespass. -
"Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Section 442 IPC defines house trespass as; "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass"., Explanation. - The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
House trespass is an aggravated form of criminal trespass that is for the offence of house trespass there has to have all the ingredients of criminal trespass along with the ingredients of section 442 IPC.
State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 15/21Section 441 provides Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". The section requires:
1. Entry into or upon property in the possession of another.
2. If such entry is lawful, then unlawfully remaining upon such property
3. Such entry or unlawful remaining must be with intent -
a. To commit an offence; or b. To intimidate insult or annoy any person in possession of the property.
10. Trespass is a generic name for various torts for which the remedy to the aggrieved person is with the civil court and section 441 IPC defines criminal trespass which is a species of trespass and the criminal court would take cognizance of the trespass only when the trespass complained is of criminal kind as defined in the section and not otherwise.
11. Admittedly it is the case of the prosecution that there had been entry by the accused persons in the property of the complainant but when the entry was effected the complainant was not in the possession of the property. As it has been stated by the complainant that he had kept one person namely Mr. Ram Kumar to look after the property and when he State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 16/21 when visited there on 5th January 1992, he found the accused persons in possession of the property. Ld.APP fpr the state has argued that the possession as envisaged in section 441 IPC may be constructive possession also.
12. I am not in consonance with arguments of Ld. APP. Generally the word 'vicarious' is alien to penal code, and the court is of the opinion that the possession for the purpose of section 441 IPC has to be actual possession and not the constructive or vicarious possession. I draw support for my opinion from the judgment of the Hon'ble Delhi High Court in Kishore Jain v. The State (2002 Cri.L.J. 1154), where in para 4 it has been observed;
"There cannot be any dispute about the proposition of law that offence of criminal trepass pre-supposes, positive or de-facto possession of the compliant and in the absence of the same prosecution cannot succeed. The possession referred to in Section 441 must be actual possession of some person other than the alleged trespasser and the question of title is not relevant in these proceedings."
13. I draw support also from the judgment in Lalchand Pitumal v. Emperor (AIR 1933 Sind 396) it was observed that, 'to constitute the offence of trespass the accused must enter into or upon property in possession of another. This "possession" envisaged in section 441 IPC is physical and not merely constructive possession as the act intended to be done which makes the trespass must be done to the person in possession and on the property." (Emphasis mine) State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 17/21
14. The complainant may or may not be the owner of the property in which allegedly trespass has been committed, but the ownership is hardly relevant for the purposes of section 441 IPC. And as admittedly the complainant was not in the possession of the property at the time when the trespass occurred, therefore, section 441 IPC is not attracted in the facts of the case of the complainant.
15. A trespass becomes a 'criminal trespass,' only when entry into or upon the property in possession of another is done with the intention to commit or to intimidate, insult or annoy the person who is in the possession of the property. First thing, the complainant was not in the actual possession of the property and second causing of annoyance, intimidation or insult must be the aim of the entry. And third, to attract section 441 IPC it is not sufficient to show merely that the natural consequence of the entry was likely to be annoyance etc. which does not appear to be the situation in the present case. The only aim which the court can discern of the accused in the present case was to take the possession of the property and the annoyance if any felt by complainant is the mere the consequence of the act of the accused persons. Naturally anyone who is the owner of the property when comes to know, no matter where the owner might be that his property has been trespassed or taken possession of course would feel annoyed by the act of the trespasser, but section 441 is not referring to this annoyance per se. At the same time section 441 IPC is not concerned about dispossession of the property of a lawful owner. Deprivation of the possession of the property may or may not be the consequence of the offence under section 441 IPC and even in a case where there has been no dispossession of the owner from the property section 441 State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 18/21 may apply.
16. If in a given case section 441 IPC is not attracted then section 442 IPC would also be not attracted. In the case of the complainant the Court is of the opinion that section 441 IPC has not been attracted therefore section 442 IPC would also be not attracted which is criminal trespass with respect to building, tent or vessel used as a human dwelling or any building used as a place of worship, or as a place for the custody of property. On similar grounds, Sec 454 I.P.C being aggravated form of Sec 441 I.P.C , the same is also not made out.
17. Even otherwise the story of the prosecution in the absence of any independent witness remains under the shadow of doubt. As per the testimony of the complainant Gurpreet Singh who was examined as PW-2 that on 22.12.1991 he received telephonic information from Ram Kumar through his brother that 5/6 persons have entered the said property and his wife Mamta was present at that time who was threatened by them. Further he has deposed that on 05.01.1992 he received telephonic call by one Ram Swaroop @ Ram Kumar that he found 5/6 strangers roaming in the garden of the said property. He has further deposed that he along with his brother and other relative went there and saw 5/6 strangers there and informed the police. The complainant stated that he along with his relatives had nabbed all those persons but none of his relatives or his brother along with whom he went there were made witnesses and were ever examined. No formal complaint was preferred for incident dated 22.12.1991.
State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 19/2118. Further the prosecution has not proved from where the alleged abducted persons were recovered, if at all and under what circumstances. The complainant has deposed about missing of furniture, carpet, house hold goods etc. as per list mark A from the said property but he has not proved the ownership of either of those. Not even a single article has been recovered. It seems that the articles alleged stolen and the abducted persons were never the subject of investigation.
19. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
20. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 20/21 Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
21. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused persons beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused persons. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is not sufficient to substantiate the guilt of the accused persons. Accordingly the accused persons deserve acquittal.
22. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on April 11th, 2012.
State V/s Rakesh & Ors. FIR No. 10/92 PS: Ashok Vihar Page No. 21/21