Delhi District Court
Rampal vs . State on 26 April, 2011
Rampal Vs. State
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Criminal Appeal No. 202/10
ID No. 02403R0410932010
Ram Pal
S/o Sh Bir Narain
R/o H. No. 20, Chhuriya Mohalla
Village Tughlakabad, New Delhi
..... Appellant
VERSUS
The State
..... Respondent
_______________________________________________________________
Date of institution : 22.12.2010
Date when arguments
were heard : 25.04.2011
Date of Judgment : 26.04.2011
J U D G M E N T
This Appeal is directed against the judgment dated 23.11.2010 and the order on sentence dated 24.11.2010 whereby the appellant has been held guilty for the offence under section 451/323/427 IPC and sentenced to Simple Imprisonment for two months under section 323 IPC, Simple Imprisonment for CA No. 202/10 1/10 Rampal Vs. State four months and a fine of Rs 1,000/ under section 451 IPC and Rigorous Imprisonment for four months under section 427 IPC.
2. Feeling aggrieved by the said judgment and order on sentence the appellant has preferred this Appeal.
3. I have heard the arguments from the Ld. Counsel for the appellant and Ld. Addl. P.P for the state and perused the Trial Court Record.
4. The case of the prosecution was that on 17.01.1999 at around 7 pm the complainant Smt Resham Devi was coming from Gali No. 16, Tughlakabad after purchasing vegetables, she met appellant who was under the influence of liquor and had started abusing her. She silently proceeded towards her house and the appellant followed her and entered her house where he started damaging the cement sheets in the house and when the complainant and her son objected to this, the appellant started beating them as a result the complainant received injuries on her right hand. The police was informed and the statement of the complainant was recorded and the case was got registered for the offence under section 451/323/427 IPC.
5. To prove these allegations the prosecution had examined seven witnesses. The complainant Smt Resham Devi was examined as PW1 who had proved her complaint Ex. PW1/A. PW2 is HC Naresh Kumar who was Duty Officer and had registered the FIR Ex. PW2/A. PW3 is Dr Rachna Garg CA No. 202/10 2/10 Rampal Vs. State who had deposed that Xray report Ex. PW3/A was prepared by Dr Kanchan Verma and as per the report there was no fracture to the patient namely Smt Resham Devi on 17.01.1999. PW4 is Sukhbir who is the son of the complainant who has supported the statement of the complainant. PW5 is Dr Raghvendra who has deposed that the MLC of Smt Resham Devi was prepared by Dr. S. Prasanna vide Ex. PW5/A. PW6 is Ct Nayan Pal who had accompanied HC Dharamvir in the investigation. PW7 is ASI Dharamvir who is the Investigating Officer of the case.
6. Ld. Counsel for the appellant had argued that the judgment would reflect that it has been passed without application of mind and there is no proper appreciation of the evidence on the record. It was further argued by the Ld. Counsel that it was a false and fabricated case and the story given in the FIR was concocted by the complainant Smt Resham Devi to grab the plot of 50 sq yards which belongs to the appellant. He further submitted that a civil case is also pending between the son of the complainant and the appellant in respect of the said plot.
7. Ld. Addl. Public Prosecutor, on the other hand had argued that there may be a civil dispute between the parties, although nothing has been brought on record by the appellant during the trial and even if it is accepted that a civil dispute is pending that does not give the right to the appellant in committing criminal tress pass into the house of the complainant and causing damage by breaking the cement sheets of the house and also causing injuries to CA No. 202/10 3/10 Rampal Vs. State him. The entire prosecution story is based on the statement of PW1 Smt Resham Devi. She has deposed that she was coming after purchasing vegetables from Gali No. 16, when appellant Ram Pal met her who was under
the influence of liquor and he started quarreling with her. She further deposed that appellant followed her to her house and forcibly entered into the house. She further deposed that he caused damage to the cement sheets of the house and also gave her beatings. In the cross examination nothing could be elicited from her which could make her statement doubtful. No motive could be imputed to her to give false statement or to implicate the appellant falsely. Although, in the cross examination the appellant had tried to show a civil dispute of 50 sq yards plot which he claimed to have purchased and which was in the possession of the complainant. But this defence of the appellant in the cross examination of the witness could not shake the statement of the complainant. There may be some civil dispute over the property between the complainant and the appellant but that does not entitle him to commit the tress pass into the house belonging to the complainant, beat her and to cause damage to her property.
8. Statement of PW1 Smt Resham Devi inspire confidence in the case and the there is no rule of law that the statement of injured necessarily require corroboration, although it is available on the record in the form of MLC Ex. PW5/A and Xray report Ex. PW3/A. The prosecution in this case had examined PW4 Sukhbir who was an eye witness of the incident and he had fully supported the case of the prosecution and also provide corroboration to CA No. 202/10 4/10 Rampal Vs. State the statement of the complainant. Ld. Counsel for the appellant had argued that these two witnesses are interested witnesses, therefore, there statement cannot be believed. He argued that no public witness has been examined by the IO to prove the allegations against the appellant. No doubt the statement of an independent witness who is neither concerned with the appellant nor with the complainant could lend credence to the prosecution case, but the absence of the evidence of such an independent witness is also not a ground to discredit the statement of a victim and the eye witness, who is related to the victim. The eye witness to the incident who may be related to the victim cannot necessarily be called an interested witness. The statement of a victim/injured always stand at a higher pedestal and higher evidential value, unless ofcourse, there are compelling circumstances or some inherent defect in the statement of such a witness which make it doubtful. In the present case no such inherent weakness or compelling circumstances have emerged to doubt the statement of the complainant PW1 and PW4.
9. Ld. Counsel for the appellant had argued that the appellant had built the house and it was given to the complainant for the purpose of residence. Although, there is nothing on record to support this specific defence but even if it is accepted that the complainant was given a license by the appellant to live in the house in question, the appellant had no right to commit criminal tress pass into the said house and beat her and cause damage to her property. Moreover, this plea amount to an admission by appellant that the complainant was in possession of the house in which trespass was committed. CA No. 202/10 5/10
10. The fact that the appellant had entered into the house of the complainant also stands proved by the statement of PW1 and PW4 but I would like to differ with the conclusion of the Trial Court regarding the commission of offence under section 451 IPC. Section 451 IPC would be attracted when a house trespass is committed in order to the committing of "any offence punishable with imprisonment." Thus, the intention to commit an offence is a necessary ingredient of section 451 IPC. Section 441 IPC defines what is "criminal tress pass".
Section 441 IPC reads as under: "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.
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, criminal trespass can be committed when there is an intention either to commit offence or to intimidate, insult or annoy any person in possession of such property. If criminal trespass is with an intention to commit an offence, section 451 IPC would be attracted but if the intention to commit an offence is absent and intention is only to either intimidate, insult or annoy any person in possession of such property, then section 447 IPC will be invoked. CA No. 202/10 6/10
Rampal Vs. State The prosecution, therefore, has to show the requisite intention to attract section 451 IPC. Since the intention is nothing but a thought process or a state of mind, it is difficult to get direct evidence of intention and, therefore, it has to be gathered from the circumstances of the case and also from the consequences of an act because a person is presumed to know and understand the consequences of his own act. In this case the appellant under the influence of liquor had entered the house of the complainant and after entering the house had quarreled with the complainant and thereafter he had broken the cement sheets and also gave beatings to the complainant. The act does not reflect that the appellant entered the house of the complainant with intention to commit an offence but the act definitely shows that his intention was to cause intimidate, annoy or insult the complainant if the act of appellant is seen in the background of his plea that he had given the house to complainant for residence only. Therefore, the appellant is liable to be convicted for the offence under section 447 IPC instead of section 451 IPC.
11. Another charge against the appellant was for the offence under section 427 IPC. It provides punishment for causing mischief whereby the loss or damage to the amount of 50 sq yards or upwards has been caused by the appellant. In the present case there are allegations that the appellant had caused damage to the cement sheets of the house of the complainant, however, in the entire evidence no estimated value of those cement sheets is mentioned. The value of those cement sheets may be more than 50 or less than 50. How may cement sheets have been broken is also not ascertained. Therefore, the value of CA No. 202/10 7/10 Rampal Vs. State the loss or damage caused by the appellant is not ascertained which, is one of the necessary ingredient of offence under section 427 IPC which the prosecution has to prove. The court by itself cannot presume the value of the loss unless some parameters are shown in the evidence to ascertain the value of the loss. Therefore, in the absence of any value of the loss or damage the appellant could be convicted only for the offence under section 426 IPC.
12. So far as the offence under section 323 IPC is concerned, Xray report Ex. PW3/A, MLC Ex. PW5/A and the oral testimony of the complainant prove the allegations against the appellant beyond reasonable doubt. Thus the judgment of conviction against the appellant is upheld with the modification that the appellant is found guilty for the offence under section 447/426/323 IPC and convicted accordingly.
13. On the point of sentence the appellant has prayed for a lenient view and stated that that he may be given benefit of Probation. While awarding the sentence the court has to see the mitigating and aggravating circumstances. When the offence is not grave in nature the benefit of Probation to an accused is advisable. The appellant in this case is about 70 years of age. He informs that he has retired from Government service and has no previous criminal antecedents. The case was registered in the year 1999 and thus he has faced trial for about 11 years. Although, the appellant deserves to be given benefit of Probation but at the same time the court has to keep in mind the interest of the victim as well. Therefore, it is considered appropriate to award some CA No. 202/10 8/10 Rampal Vs. State compensation to the complainant Smt Resham Devi.
14. Keeping in view the facts and circumstances of the case, the order on sentence is being modified. Having regard to the age and antecedents of the appellant and the circumstances in which the offence was committed the court consider it expedient to release the appellant on Probation of good conduct and, therefore, it is directed that the appellant be released on Probation of good conduct on his entering into a bond in the sum of Rs 15,000/ with one surety of the like amount for a period of One Year and in the meantime to keep peace and be of good behaviour and receive sentence as and when called upon during the period of Probation. The appellant is also directed to pay compensation under section 357 (3) Cr. P.C in the sum of Rs 10,000/ to the victim Smt Resham Devi. In default of payment of compensation the appellant shall undergo Simple Imprisonment for six months. The fine already deposited before the Trial Court shall be considered as a compensation under section 357 (3) Cr. P.C and the balance amount of compensation shall be deposited and the same shall be released to the complainant Smt Resham Devi.
15. With the above modifications in the order on sentence the Appeal stands dismissed. The appellant shall deposit the compensation and furnish the bond of Probation before the Trial Court. Copy of judgment be sent to the Trial Court along with the Trial Court Record through Ld. CA No. 202/10 9/10 Rampal Vs. State ACMM, South East for compliance. The appellant shall appear before the Trial Court on 04.05.2011. Appeal file be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated 26th April, 2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
CA No. 202/10 10/10