Delhi District Court
State vs . Hoti Lal And Ors on 27 November, 2019
IN THE COURT OF SH. BALWINDER SINGH
MM(East) KARKARDOOMA COURTS, DELHI
STATE VS. HOTI LAL AND ORS
FIR No. : 252/03
PS : Mayur Vihar
Sr. No of the case : 7628/16
Date of Institution : 04.11.2009
Date of commission of Offence : 27.04.2002
Name of complainant : Sh. Kunwar Pal
Name of accused, their parentage : (1) Hoti Lal
and address S/o Sh. Ram Chand
(2) Sushil S/o Hoti Lal
(3) Prem Pal S/o Hoti Lal
All R/o 232B, Mayur Vihar
Phase1, Pocket1,
East Delhi.
Offence Complained of : 323/342/380/442/448/506/34
IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of reserving judgment/order : 26.11.2019
Date of pronouncement : 27.11.2019
Brief reasons for the decision of the case:
1.In brief the case of prosecution is that the complainant and accused no 1 Sh. Hoti Lal became the joint owner of a property i.e. Flat bearing no. 232B, Pocket1, Mayur Vihar, Delhi after the same was FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 1 of 15 allotted to them in joint name by DDA in the year 1983. The complainant and accused persons started living in the above said premises. However, in the year 1991 some difference arose between the family members of complainant and accused no. 1 which was sorted out with the intervention of close relatives and in order to solve the differences a wall was constructed in between the flat dividing it into two portions, one taken by the complainant and the other half portion was occupied by the accused no. 1 and his family. It is further stated that the complainant resided in his portion till 1994 and thereafter, he left his portion after locking the same keeping his household articles and some other goods lying inside the same. It is alleged that on 27.04.2002 when father of complainant visited the premises and to meet accused no. 1, he found that the locks put up by the complainant in his portion of the property were already broken. Thereafter, when father of complainant asked the accused persons regarding the same, he started quarreling with his father. The complainant was also called at the spot. It is also alleged that he reported the matter to the police, however, no action was taken on his complaint. Accordingly, the complainant approached the court with his application u/s 156 (3) Cr. P.C. and pursuant to the directions of the then Ld. ACMM, the present FIR was registered by the police and on the completion of the investigation, the present charge sheet was filed against the accused persons for commission of offence u/s 323/342/380/442/448/506/34 IPC . Cognizance of offences was also accordingly taken by the court.
2. However, the accused persons were formally charged for the FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 2 of 15 commission of offence u/s 448/34 IPC only on 09.07.2013 pursuant to order dated 05.01.2013 passed by Ld. Revisionist Court. All the accused persons pleaded not guilty to the charge and claimed trial. Thereafter, the prosecution was called to lead evidence to prove its case.
3. During prosecution evidence, total six witnesses were examined by the prosecution to prove its case.
4. PW1 is complainant Sh. Kumar Pal who deposed in the court that he had purchased a house in an unauthorized colony at Hanuman Nagar, behind Patparganj, Delhi. The plot on which the said house was situated was acquired by DDA. The said house was purchased by the father of the complainant in the name of complainant and accused no. 1. However, due to acquisition, he had deposited the documents of the above said house at Vikas Bhawan and was given a seniority no. 76 and the documents of the house were sent to DDA. Thereafter, flat no. 232, Pocket No. 1, Mayur Vihar was allotted by DDA in the joint name of complainant and accused no 1 and they both shared the same equally. PW 1 further deposed that he started residing in the flat in the year 1990, however, the accused persons and other members of their family started beating the complainant and his family due to which he made complaints against the accused persons but the same were compromised in the court. PW 1 further stated that he remained in the flat till 1995 and also started working as electrician in the same flat. But due to the repeated altercations between the families, his Bua and Fufa got constructed a wall in the above said flat separating the portions of FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 3 of 15 both the sides. PW 1 also deposed that on 27.04.2000, he left his above said flat with his articles and goods lying therein after locking the same. However, in his absence, the accused persons broken the lock and also removed the wall constructed inside the flat. As per PW 1 on 27.04.2000 when his father visited the above said flat and tried to reason with the accused as to why they had broken the wall, the accused persons gave beating to him. Thereafter, his father came back to work place of the complainant i.e. at DDA Minar, where he noticed the blood on the cloths of his father and accordingly, took him to PS Mayur Vihar and met with Additional SHO of the PS. The father of the complainant was taken to SDN Hospital by one constable and was medically treated and thereafter, they returned to the PS and gave their statements regarding the incident. However, as per PW 1, no action was taken by the police. During the testimony of PW 1, a number of documents pertaining to flat bearing no. 232B, Pocket1, Mayur Vihar, Phase1, Delhi were also exhibited by the prosecution.
5. PW 2 is ASI Vijay Pal, the duty officer who registered the present FIR on the basis of the complainant produced by SI Rajni Kant. Copy of FIR is Ex. PW 2/A and endorsement of PW 2 on the same is Ex. PW 2/B.
6. PW 3 is Inspector Rajni Kant who simply deposed that on 05.09.2003, the complaint of complainant was marked to him for registration of the FIR and accordingly, he got the same registered with the duty officer.
FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 4 of 15
7. PW 4 is Retd. SI Onkar Singh who deposed that on 20.01.2005, the case file was marked to him by SHO PS Mayur Vihar for investigation. He further deposed that he issued notice to the accused persons u/s 160 Cr. P.C. but the same could not be served at their addresses and in the meantime, the accused persons got anticipatory bail. Thereafter, he was transferred to some other PS and he submitted the case file with his department.
8. PW 5 is Retd ASI Krishan pal who simply deposed that the investigation of case was marked to him on 11.12.2007. On 02.08.2009, the accused persons were formally arrested by him and their disclosure statements were also recorded. However, since they were already on anticipatory bail, after the formal arrest, they were released. PW 5 further deposed that during the course of investigation, he visited the office of DDA to confirm the ownership of concerned house and also collected the copies of the documents concerning the ownership of the flat from the complainant and seized the same vide seizure memo Ex. PW 5/A. The statement of complainant and one another witness PW 6 was also recorded and on completion of the investigation, a charge sheet was filed in the court.
9. PW 6 is Shri Kripal Singh who deposed that he works as a mason and in the year 1990 a quarrel took place between the complainant and accused Hoti Lal who used to reside in the same house i.e. House No. 232, Pocket no. 1, Mayur Vihar, Phase1, Delhi and he was called by the complainant and the accused persons to construct a wall in the above said house for partition of the premise. PW 6 FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 5 of 15 further deposed that accordingly he constructed the said wall. PW 6 also deposed that the plot in question was allotted to complainant and the accused persons by the DDA as compensation for their house in Patparganj. PW 6 further deposed that in August, 2009, he alongwith complainant went to the above said house and found that the wall constructed inside the house was demolished and the accused persons had even broken the locks of the house pertaining to complainant and had started residing there. Thereafter, he accompanied the complainant to police station.
10. It is pertinent to mention here that one witness namely Sh. Sanware Lal expired before his evidence could be recorded in the present case and one another witness from the DDA department was also dropped from the list of prosecution witnesses by the order of the then Ld. Predecessor vide order dated 29.07.2017 who opined that since the matter relates to offence u/s 448 IPC which is an offence against possession only, the examination of the witness to prove the documentary record pertaining to the ownership of the parties is not required. Thereafter, PE was closed.
11. The accused persons were also examined u/s u/s 313 Cr. P.C. During their examination, the accused persons denied all the allegations of the complainant and claimed that flat in question is exclusively belongs to them and the complainant never resided in the same. They further claimed that they have been falsely implicated in the present case as complainant wants to grab their property. Thereafter, the matter was fixed for DE.
FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 6 of 15
12. During DE, though the accused persons examined one Naresh kumar as DW 1, however, before his crossexamination could be conducted by the Ld. APP for the State, the accused persons submitted that they wants to drop DW 1 as their witness since he is not available. In view of the statement of accused persons, the testimony of DW 1 was discarded and accordingly, the matter was posted for final arguments.
13. Thereafter, final arguments were heard from both the sides.
14. In the present case, the accused persons are charged for commission of offence u/s 448 IPC which provides punishment for house trespass. The offence of house trespass is defined u/s 442 IPC and the offence criminal trespass is defined u/s 441 IPC which reads as :
Section 442 : House trespass Whoever criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as 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.
Section 441 : 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, FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 7 of 15 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.
15. Thus, it is necessary for an offence punishable u/s 448 IPC that essential ingredients of criminal trespass and house trespass must be fulfilled. For commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
1) entry into or upon property in 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: (i) to commit of offence or; (ii) to intimidate, insult or annoy the person in possession of the property.
16. Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. In Jaimini Kumar Ghos vs. Sudhir Ranjan Podar, AIR 1971, Crl. Law Journal, 507, it was observed that the definition of expression "Criminal trespass as given in section 441 IPC makes it abundantly clear that it is an offence against possession over property and not ownership thereof.
FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 8 of 15 Hence, strictly speaking, the question of title to the property is said to have been criminally trespassed upon is not germane to the charge u/s 447 IPC.
The word 'possession' used in the definition of 'criminal trespass' as has been observed in a catena of judgments includes both 'actual possession' as well as 'constructive possession'.
In Sant vs The Union Of India AIR 1962 HP 1, the Himachal Pradesh High Court observed that, " the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessio naturalis and possession in law as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I. P. C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word possession with the words 'actual and physical'....."
17. Now, coming to the present case, to discharge its burden and to prove its case, the prosecution is mainly relying upon the testimony FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 9 of 15 of PW 1/complainant Kumar Pal and PW6 Sh. Kripal Singh, the mason who had allegedly constructed the wall inside the property in question for the purpose of separating the portions of the house. PW2, PW 3 and PW5 are the police witnesses who have not deposed anything material with respect to incident in question and have formally deposed about the proceedings conducted during the course of investigation.
18. While arguing on behalf of prosecution, Ld. Addl. PP for the state has submitted that in view of testimony of PW1 and PW6 who deposed in the court that in the absence of complainant, accused persons unlawfully occupied the portion of the house belonging to complainant and the documents Ex. PW 1/B to Ex. PW 1/M pertaining to the property in question which also show that the flat in question was allotted jointly in the name of complainant and accused Hoti Lal, the case of the prosecution stands proved against the accused persons beyond all reasonable doubts and as such the accused persons deserve to be convicted in the present case.
19. On the other hand, the accused persons represented through one of the accused namely Sushil Kumar have argued that the case of prosecution is false and baseless. It is further argued that testimony of PW1 is full of discrepancies and material contradictions with respect to different dates and time of his stay at the property and illegal dispossession by the accused persons provided by the complainant in his statement renders his testimony to be unreliable. It is further argued that prosecution has miserably failed to prove that the complainant was ever in possession of the property in question FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 10 of 15 and has not been able to place on record any documentary evidence to prove his possession of the property at any point of time. As far as testimony of PW6 is concerned, the same is also stated to be unreliable being made by a person close to the complainant and being lacking in details with respect to alleged construction of wall and period of possession of complainant. Accordingly, accused persons have prayed for their acquittal in the present case.
20. I have heard both the sides at length and have also gone through the material available on record.
21. Admittedly, the documents placed on record by prosecution mainly Ex. PW 1/B to Ex. PW 1/N do show that the property bearing no. 232B, Pocket1, Ground Floor, Trilok Puri, Delhi was actually jointly alloted to complainant and accused no 1 Hoti Lal. Though the accused persons in their examination u/s 313 Cr. P.C have claimed that the property was exclusively allotted to accused Hoti Lal by the DDA, however, they have not been able to substantiate that plea by leading any evidence. As such the fact that the property was allotted jointly to complainant and accused no 1 Hoti Lal remains undisputed. Now, as far as the case of the prosecution that the accused persons forcibly occupied the portion of the house which was in the possession of complainant in his absence and committed house trespass into his property is concerned to prove such allegations the prosecution is firstly required to prove that the accused persons entered into or upon the property of the complainant which was under his possession with intent to commit any offence or to intimidate insult or annoy him there being no dispute that the FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 11 of 15 property in question is a dwelling house. Thus, before the alleged dispossession or the entry by the accused persons upon the property in question is proved, the prosecution is required to prove that the complainant was himself in possession of the property on the day of incident. The possession as already discussed above may be either actual or constructive. To prove the possession of the complainant, the prosecution has again relied upon documents Ex. PW 1/B to Ex. PW 1/N and the testimony of PW1 and PW6. PW 1/B to Ex. PW 1/F are the documents/letter showing the allotment of property in question in the name of complainant and accused no 1 Hoti Lal and pertains to year 198384. PW 1/G is the list of inventory of fitting/fixtures provided/installed in the house by the DDA, PW 1/H is the certificate of handing over of possession of the house to the allotees, Ex. PW 1/I is the cash receipt pertaining to deposition of water security, Ex. PW 1/J is test certificate for water meter, Ex. PW 1/K is receipt pertaining to electricity connection, Ex. PW 1/L is house property tax and Ex. PW 1/M is copy of the ration card issued in the name of complainant bearing the address of the property issued in the year 1991. Except document Ex. PW 1/M, all other documents are bearing the name of both complainant and accused no 1 Hoti Lal. Thus, on the basis of above said document the prosecution has been able to prove that property was jointly allotted to both the complainant and accused Hoti Lal. However, the fact that property was jointly allotted to both the complainant and accused no. 1 does not also mean that the same was also jointly occupied by the two. Hence, the court is required to ascertain whether the prosecution has also been able to prove that after the allotment, the complainant had also occupied the property and was in its FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 12 of 15 possession ?
22. It is pertinent to mention here that in his deposition recorded on 25.08.2015, PW 1 deposed that he remained in the above said flat till 1995 and by that time had also started working as electrician in the same flat. He further deposed that during this time, since, altercation were going on between the two families, his paternal aunt and her husband got constructed a wall in the flat after separating their portions. He further deposed that on 27.04.2000, he left the above said flat having his articles and utensils lying there after locking the same. However, in his absence accused persons had broken the lock and also removed the wall constructed in the flat.
Though, the complainant has deposed that he remained in the possession of property till 27.04.2000, however, it is pertinent to note that he has not placed on record any documents to show his possession of the property at any point of time except the document Ex. PW 1/M which is a ration card issued in his favour in the year 1991 and bearing the address of the property. Neither any electricity consumption bill nor any water consumption bill to show that the complainant remained in the possession of house till year 2000 was placed on record either by the PW 1 or the IO of the case. Admittedly, PW 1 has also not specified the exact date when the wall was constructed inside the house though PW6 has deposed that the same was constructed in the year 1990. The investigation conducted by the IO is also silent as to whether anybody from the locality was also inquired to verify the fact that the complainant was residing at the property prior to the alleged occupation of the same FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 13 of 15 by the accused persons.
23. It is further pertinent to mention here that though PW 1 stated that the wall inside the house was also constructed with the intervention of his paternal aunt and her husband, however, none of them were either joined as witness by the police during the course of investigation nor were called by the prosecution for their examination in the court to prove such fact. Hence, the prosecution has failed to establish that the complainant was in the possession of the property at the time of alleged occupation by the accused persons. The documents placed on record only proves that the property in question was jointly allotted to the complainant and accused no. 1, however, the said fact per se does not prove that he was also in possession of the property. The failure on the part of complainant to provide the date or period when the property in question was allegedly separated by a wall and his failure to prove the possession or use of the property at any point of time further makes it difficult for the court to believe his story. Moreover, despite making the claim that the complainant was using the property and was working as an electrician in the same premises, he could not place on record a single receipt regarding the payment of any electricity bill also creates serious suspicion in his claim. Further, the mere fact that PW 1 was having his ration card with address of the property also does not help the prosecution to prove its case as same also pertains to year 1995 and does not necessarily prove the possession of PW 1. Moreover, there is no other independent witness or circumstantial evidence available on record which could have help the prosecution in discharging its burden and to prove its case FIR No. 252/03 PS Mayur Vihar State Vs. Hoti Lal and Ors Page No. 14 of 15 against the accused persons.
24. Accordingly, the court finds that the prosecution has not been able to prove the very fact of the possession of property by the complainant on the day of alleged incident or at any point of time prior to the same and as such there is no question of presuming that the accused persons entered into or upon the property while the same was in the possession of the complainant.
25. Hence, in view of the above said findings, I am of the considered view that the prosecution has miserably failed to prove its case against the accused persons beyond all reasonable doubts. Accordingly, all the accused are hereby acquitted of offence punishable u/s 448/34 IPC. Ordered accordingly.
26. Copy of judgement be given dasti free of cost.
Digitally signed by BALWINDER BALWINDER SINGH
Announced in open court SINGH Date: 2019.11.27
19:05:52 +0530
on Dated: 27.11.2019
(BALWINDER SINGH)
MM(E)/KKD/DELHI/27.11.2019
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