Delhi District Court
Raghav Rao vs . Gorantla Venkateswara Rao & Anr. Air ... on 30 June, 2014
IN THE COURT OF SH. SONU AGNIHOTRI LD. CMM
DISTT. EAST, KKD COURTS DELHI
CC No. 46/98
PS Kalyan Puri
JUDGMENT
UID No. 02402R0016191998 RAM KAUR W/o Late Sh. Nathu Singh Bodh R/o A179, Harijan Basti, Kondli, Delhi95 Vs.
1. DEVENDER KUMAR S/o Sh. Ram Singh R/o Village Ajnodh, PS Nauchhil, District: Mathura (UP).
Temporary address : A179, Kondali Main Road, Harijan Basti, Kondali, Delhi96.
CC No. 46/98 PS Kalyan Puri 1/17
2. SMT. JAGROSHNI
W/o Sh. Devender Kumar
R/o Village Ajnodh, PS Nauchhil,
District: Mathura (UP).
Temporary address : A179,
Kondali Main Road,
Harijan Basti, Kondali,
Delhi96.
3. RAM SINGH
S/o Sh. Faguni
R/o Village Ajnodh, PS Nauchhil,
District: Mathura (UP).
Date of Institution : 06.08.1998
Judgment reserved on : 30.04.2014
Judgment delivered on : 30.06.2014
JUDGMENT
As per complainant in complaint filed by her, she is old lady aged about 65 years and is not having any male child in her house. It is CC No. 46/98 PS Kalyan Puri 2/17 stated that complainant is a widow. It is stated that complainant is owner and in possession of H. No. A179, Kondali Main Road, Harijan Basti, Kondali, Delhi measuring 50 sq yards having one shop and one small room on the ground floor and two rooms on the first floor.
It is stated that accused No. 1 is maternal grand son of complainant, accused No. 2 is wife of accused No. 1 and accused No. 3 is son in law of complainant. It is stated that complainant is having only two daughters, one is wife of accused No. 3 and another younger one is residing nearby house of complainant in her own house.
It is stated that accused No. 1 used to reside with complainant since the time her husband was alive but that her husband expired about one year ago and since then, accused No. 1 and No. 2 have been trying to dispossess complainant from her house and they number of times have tried to get property bearing No. A179, Harijan Basti, Kondali, Delhi in their names but complainant refused to do so.
It is stated that since date of refusal, on 01.07.1998 at about 10:00 PM, accused No. 1 and 2 gave beatings to complainant and accused No. 1 threatened complainant that she will be silted by her neck and thereafter he will succeed to the said property. It is stated that in the CC No. 46/98 PS Kalyan Puri 3/17 meanwhile some locality people gathered and younger son in law and daughter of complainant also reached at the spot and saved complainant. It is stated that complainant did not lodge complaint on 01.07.1998 on account of being of old age but that she gave written complaint to SHO PS Kalyan Puri on 02.07.1998.
It is stated that on 15.07.1998 at about 02:00 PM, all the accused tried to possess shop of complainant by putting bundles of shoes but in the meantime police reached at the spot and arrested accused No. 1 and 3 as well as younger son in law of complainant u/sec 93/97 D. P. Act on account of which accused No. 1 and 3 were fined to the tune of Rs. 400/ and younger son in law of complainant was admonished by court of Sh. S. K. Aggarwal, the then Ld. MM.
It is stated that one Mahipal, SI posted in MT Staff who is relative of accused No. 1 has been threatening complainant on phone that he will implicate her in a false case with regard to which a complaint has been sent to DCP, MT.
Complainant has prayed for summoning, trying and punishing accused as per law.
CC No. 46/98 PS Kalyan Puri 4/17 Initially report u/sec 156 (3) CrPC was called by my Ld. Predecessor and my Ld. Predecessor on report U/sec 156 (3) CrPC did not order for registration of FIR but ordered for summoning of accused.
My Ld. Predecessor framed charge directly without pre charge evidence being taken and repelled contentions of defence counsel in this regard vide order dated 13.07.1999.
Charge u/s 323/506/34 IPC was framed against accused Devender and Jag Roshni and charge u/s 448 r/w Section 511/34 IPC was framed against all accused persons on 30.08.1999 to which accused pleaded not guilty and claimed trial.
Complainant examined following witnesses in order to prove her case: CW1 Smt. Ram Kaur CW2 Smt. Satya Prakashi (CW1 and CW2 were ordered to be numbered as PW1 and PW2 vide order of my Ld. Predecessor dated 22.09.2001).
PW3 HC Rishi Pal
PW4 Bhanu Pratap Singh
CC No. 46/98 PS Kalyan Puri 5/17
PE was closed vide order dated 16.09.2008.
S/A u/s 313 Cr. PC was recorded on 05.02.2009 in which all incriminating material appearing in evidence against accused were put to accused persons to which accused Ram Singh stated that it is false and frivolous case having been filed by complainant due to property dispute between accused Devender and complainant. He further stated that in fact Bhanu Pratap, younger son of law of complainant had given beatings to him on 15.07.1998 and he alongwith Devender were opening the shop under his share/possession.
Accused Jag Roshni stated that it is false and frivolous case having been filed by the complainant to grab their share of A179, Kondali, Harijan Basti, Delhi96 which is their share due to the adoption of her husband by Nathu Singh, the husband of the complainant.
Accused Devender Kumar stated that it is false and frivolous case having been filed by the complainant to grab his share of A179 Kondali, Harijan Basti, Delhi96 which is his share due to his adoption by the husband Nathu Singh of the complainant.
In defence evidence, accused examined Mr. Naval Singh as defence witness. DE was closed on statement given by counsel for accused CC No. 46/98 PS Kalyan Puri 6/17 before court on 01.10.2010.
I have heard final arguments addressed by respective counsels and perused the record including judgments filed on record by accused. Decision and Brief Reasons for the Same Complainant in her deposition before court has relied upon one complaint made to SHO PS Kalyan Puri (undated) got received on 02.07.1998 vide Ex. Ex. CW1/A though in her deposition, she has stated that she made a report dated 07.01.1998 in PS which is Ex. CW1/A but there is no report/complaint dated 07.01.1998 and complaint received in the PS Kalyan Puri on 02.07.1998 has been exhibited on record as Ex. CW1/A. It appears that while writing deposition of CW1/complainant, correct particulars regarding Ex. CW1/A have not been recorded.
Complainant in the present complaint has mentioned about two incidents that took place with her i.e one on 01.07.1998 and another on 15.07.1998.
In her deposition before court, complainant has mentioned about incident dated 07.01.1998 in place of incident dated 01.07.1998 as CC No. 46/98 PS Kalyan Puri 7/17 has been stated by her in her complaint filed before court but date of alleged incident is 01.07.1998 as question has been specifically asked from complainant by defence in her cross examination and complainant has replied that she remembers dates 15.07.1998 and 01.07.1998.
Complainant in complaint filed before court has stated that she is owner and in possession of house bearing No. A179, Kondali, Main Road, Harijan Basti, Kondali, Delhi having one shop and one small room on the ground floor and two rooms on the first floor. She has stated that accused No. 1 is her maternal grand son, accused No. 2 is wife of accused No. 1 and accused No. 3 is son in law of complainant in relation. She has further stated that complainant is having two daughters only out of which one is wife of accused No. 3 and another is residing nearby house of complainant in her own house. She has stated that accused No. 1 started to reside with complainant since the time when husband was alive in a small room on the ground floor.
Complainant in her cross examination has stated that study of accused No. 1 was taken care of by her husband Nathu Singh and that accused No. 1 was married of also by her husband Nathu Singh. She has stated that accused No. 1 is residing at address A179 Kondali, Harijan CC No. 46/98 PS Kalyan Puri 8/17 Basti, Delhi since last 1213 years. She has stated that accused No. 1 initially resided in the said house without paying any money for a period of about 23 years and thereafter started giving rent to tune of Rs. 800/. She further stated that she did not issue receipt in this regard.
PW2 Satya Prakashi in her examination in chief before court has stated that accused No. 1 is son of her sister. She in her cross examination has deposed that accused No. 1 is residing in the house in the same capacity as was reared up by his father. She further stated that study of accused No. 1 as well as his marriage was taken care of by her father. She further stated that accused No. 1 was reared up by her father since he was 78 years of age. She further stated that accused No. 1 was not taken into adoption by her father in front of public.
PW4 Bhanu Pratap Singh in his deposition before court has stated that on 01.07.1998, accused No. 1 and 2 bet complainant with fists and leg blows at about 10:0010:30 PM. He further stated that accused no. 1 was threatening that in case complainant does not gave house No. A179 to him, he will kill her by strangulating her. He in his cross examination has stated that he was married to PW2 on 18.02.1989. He has feigned ignorance regarding the fact that accused No. 1 was married by late Sh.
CC No. 46/98 PS Kalyan Puri 9/17 Nathu Singh in the aforesaid house. He has denied for want of knowledge the complainant is step maternal grand mother of accused No. 1. He has admitted that litigation with regard to abovesaid property are pending before Civil Court between accused No. 1, complainant and PW2.
From whatever has been stated by PWs in their examination in chief as well as cross examinations, it is clear that accused No. 1 was residing in house No. A179, Kondali, Harijan Basti, Delhi at the time of both the alleged incident i.e 01.07.1998 and 15.07.1998.
Complainant in her deposition before court has stated date of first incident to be 07.01.1998 in place of 01.07.1998. Complainant in her examination in chief has stated manner of threatening by accused No. 1 by way of silting her throat whereas PW2 and PW4 in their examination in chiefs have stated the manner of threatening by accused No. 1 by way of strangulation. Complainant in her deposition before court has with regard to incident dated 01.07.1998 stated that she was hit by accused No. 1 by way of fists and by blows. PW2 and PW4 no doubt are supporting complainant in this regard but PW2 has added one more thing that accused No. 1 was beating complainant after making her fall on the ground. PW2 in her cross examination has stated that no information regarding the incident CC No. 46/98 PS Kalyan Puri 10/17 was given on 100 number. Complainant has not proved any documents with regard to ownership of property in question in her favour. It has been admitted by PW4 in his cross examination that litigation between complainant, PW2 and accused No. 1 with regard to property in question is going on. There is no information given on 100 number immediately after the incident as allegedly took place on 01.07.1998 as admitted by PW2 in her cross examination. PW1 not saying /deposing that she suffered any injury /hurt in the incident that allegedly took place on 01.07.1998. PW2 in her cross examination has admitted that her mother /complainant did not suffer any injury in the incident that allegedly took place on 01.07.1998. Complainant in her cross examination has stated that accused No. 1 after two three years started paying rent to the tune of Rs. 800/ per month whereas in Ex. CW1/A, she has stated that accused No. 1 does not make payment of any rent. No medical examination for incident dated 01.07.1998 has been brought and proved on record by complainant for any injury suffered by her. All these circumstances as discussed by me in this para coupled with admission of the fact by PW4 in his cross examination that litigation with regard to abovesaid property is going on between accused No. 1, complainant and PW2 goads me to believe that motive is CC No. 46/98 PS Kalyan Puri 11/17 available with complainant for filing of present complaint and false implication of accused persons cannot be ruled out. It cannot be said that complainant has been able to prove her case against accused No. 1 and 2 for incident dated 01.07.1998 beyond reasonable doubt.
For incident that took place allegedly on 15.07.1998, PW3 in his examination in chief has stated that all accused were arrested u/sec 93/97 D. P. Act. Section 93 of Delhi Police Act deals with misbehaviour with intent to provoke breach of peace. Copy of kalandra u/sec 93/97 D. P. Act though not exhibited or proved on record by complainant but is available on record and nothing has been said in the same regarding trespassing of shop of complainant by accused persons. Kalandra has been deposed to have been made on 15.07.1998 by PW3. PW3 in his cross examination has stated that he was posted in PS Kalyan Puri since 1995 to May 1998. In case, PW3 was not posted in PS Kalyan Puri on 15.07.1998, how he could have prepared kalandra u/sec 93/97 D. P. Act.
Section 448 IPC provides punishment for offence of house trespass which is defined u/sec 442 IPC. Section 442 IPC provides that who ever 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 CC No. 46/98 PS Kalyan Puri 12/17 place for worship or as place for custody of property is said to commit house trespass. Criminal trespass has been defined u/sec 441 IPC. Section 441 IPC provides that whoever enters into or upon property in 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.
Thus from definition of criminal trespass, it is clear that before a person can be convicted for an offence of criminal trespass, it must be proved that property alleged to have been trespassed by accused was in possession of complainant.
It has not been stated by complainant or any of the witness examined by her that shop in property bearing No. A179, Kondali, Harijan Basti, Delhi was in possession of complainant. Merely it has been stated that the shop belongs to complainant. It has been admitted by complainant in her cross examination that accused No. 1/Devender is residing in the abovesaid house since 1213 years (shop is stated to be located at the ground floor of the house). PW2 in her cross examination has stated that CC No. 46/98 PS Kalyan Puri 13/17 accused No. 1/ Devender is residing in the abovesaid house since when he was 78 years of age. Complainant in her examination in chief has stated that on 15.07.1998, all accused collectively broke locks of her shop. PW2 in her examination in chief has stated that on 15.07.1998, accused No.1/ Devender was breaking locks of shop. PW2 in her cross examination has stated that the broken lock was thrown by accused No. 1 in Nala. PW4 in his examination in chief has stated that all accused alongwith their accomplices on 15.07.1998 wanted to forcibly occupy shop by opening lock of the same. Breaking of lock is something different than opening of the lock. Version of PW1 and PW2 vis a vis PW4 is in contradiction in this regard. Nothing has been reported by police in kalandra u/sec 93/97 D. P. Act. All this makes story of complainant doubtful particularly in the circumstances of admitted litigation pending between complainant, PW2, PW4 and accused No. 1 as stated by PW4 in his cross examination.
Judgment filed by accused in case titled as "Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao & Anr. AIR 2011 SC 641"
is not applicable in facts and circumstances of present case as in kalandra made by police u/sec 93/97 D. P. Act, there is no mention of factum of CC No. 46/98 PS Kalyan Puri 14/17 breaking of locks by accused persons in that kalandra.
Accused Ram Singh in his SA has stated that on 15.07.1998, he and Devender were opening the shop under his share/possession but it should not be construed to prove case of complainant for incident dated 15.07.1998 as complainant has neither proved any ownership documents with regard to house No. A179, Kondali, Harijan Basti, Delhi in which shop in question is located nor any of the PWs examined by complainant has specifically stated that shop in question was in possession of complainant. Complainant has not stated that as to what use shop in question was put by her or that she or any one on her behalf was carrying out any business in the same.
Complainant has not proved on record ownership documents in her favour with regard to property bearing No. A179, Kondali, Harijan Basti, Delhi. Complainant in her cross examination has stated that the abovesaid house was transferred in her name by her husband 1213 years ago meaning thereby that initially ownership of abovesaid house was that of Nathu Singh. Complainant has not proved on record any will with regard to abovesaid house in her favour. Complainant has not stated anything with regard to mother of accused No. 1. Complainant in her complaint filed CC No. 46/98 PS Kalyan Puri 15/17 before court has described accused No. 1 to be her maternal grand son. Parties appears to be Hindu by religion. In case mother of accused No. 1 pre deceased Nathu Singh, accused No. 1 is class I heir alongwith complainant and has right to succeed alongwith complainant over property of Nathu Singh in case he died intestate but nothing been brought on record by complainant or accused with regard to mother of accused No. 1. This may be possibility only but that in these circumstances, it cannot be said that accused with intention to possess shop in question tried to open /break locks of shop in question and intention is necessary to prove offence of house trespass. It is well settled that in case there is bonafide claim of ownership over a property, neither of parties who enter upon the same can be held guilty of house trespass.
In the circumstances as mentioned above, I am of the view that complainant has failed to prove her case against accused persons for incident dated 15.07.1998.
In view of my aforesaid discussion, I am of the view that complainant has failed to prove her case against accused persons. Complaint filed by complainant is accordingly dismissed. Accused Devender and Jag Roshni are acquitted for offences U/sec 323/506/34 IPC CC No. 46/98 PS Kalyan Puri 16/17 and all accused are acquitted for offences U/sec 448/511/34 IPC.
File be consigned to Record Room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 30.06.2014 CMM, District East
Karkardooma Courts, Delhi
CC No. 46/98 PS Kalyan Puri 17/17