Delhi District Court
State vs . on 23 September, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 429518/2016
Unique Case ID No. -: DLSW020055872016
FIR No. -: 537/2015
Police Station -: CHHAWLA
Section(s) -: 452/435/506/34 IPC
In the matter of -
STATE
VS.
1.DAVENDER @ BABLI S/o Late Ramphal
2. SUMIT KUMAR S/o Davender
3. AMIT KUMAR S/o Davender All R/o VPO Rewla Khanpur, Chhawla, New Delhi.
.... Accused
1. Name of Complainant : Hari Kishan
1. Davender @ Babli
2. Name of Accused : 2. Sumit Kumar
3. Amit Kumar Offence complained of or
3. : 452/435/506/34 IPC proved
4. Plea of Accused : Not guilty Date of commission of
5. : 03.06.2015 offence
6. Date of Filing of case : 27.05.2016
7. Date of Reserving Order : 20.09.2021 Digitally signed by DEV DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 1 of 16 CHAUDHARY Date: 2021.09.23 14:19:00 +05'30'
8. Date of Pronouncement : 23.09.2021
9. Final Order : Acquitted Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Lalit Ohlan, Ld. counsel for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-8
4. Statement of accused and defence evidence 8-9
5. Arguments 9-10
6. Ingredients of the offence 10-11
7. Evidence of star witnesses 11-13
8. Other factors 13-15
9. Conclusion 15-16
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that accused Davender and his sons Amit and Sumit, who are relatives of the complainant, have previous enmity with the complainant Hari Kishan. The genesis of the dispute between the parties is a property, which the complainant claims to own. Previously, the accused persons had broken a wall of the complainant's house, with intent to forcibly take possession of the property. It is alleged that on 03.06.2015, the accused persons again trespassed on the plot belonging to the complainant. After entering into the plot, they set Digitally signed by DEV DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 2 of 16 CHAUDHARY Date: 2021.09.23 14:19:09 +05'30' fire to animal fodder worth Rs. 20,000/-. As such, it is alleged that the accused persons have committed the offences punishable under Section 452/435/506/34 of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 537/2015 was registered at the Police Station Chhawla, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Sections 452/435/506/34 IPC was framed against accused persons. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Hari Kishan (complainant) PW-2 : Ramesh Kumar (eye-witness) Digitally signed by DEV DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 3 of 16 CHAUDHARY Date: 2021.09.23 14:19:18 +05'30' PW-3 : Gayatri (eye-witness) PW-4 : ASI Satpal (Duty Officer) PW-5 : Dinesh Kumar (Fireman) PW-6 : ASI Surender Singh (DD writer) PW-7 : HC Chander Pal (Proves investigation) PW-8 : Inspt. Satbir Singh (IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Complaint to DCP Ex. PW4/A : Copy of FIR Certificate under Section 65B of Indian Ex. PW4/B :
Evidence Act Ex. PW5/A : Fire department record Ex. PW5/B : Fire department report Ex. PW6/A : DD no. 35A Ex. PW7/A : DD no. 51A Ex. PW8/A : Inquiry report Ex. PW8/B : Site Plan Ex. PW8/C, Ex. PW8/D & : Disclosure statements Ex. PW8/E Ex. PW8/F, Ex.
PW8/G & Ex. : Notice under Section 41A CrPC
PW8/H
Ex. A1 to A6 : Photographs
5. Hari Krishan (PW1) is the complainant and the star witness in the present case. He stated on oath that on 01.06.2015, accused Davender and Amit had broken wall of his plot situated at Rewla Khanpur. He stated that at the time the wall was broken, he was at his field and after reaching the spot, he called at 100 number and the police arrived at the scene. On the next day, accused persons lit fire to his fodder (toora) kept at this plot where accused persons had previously broken the wall. He further stated that the accused Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.09.23 14:19:28 +05'30' Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 4 of 16 persons quarrelled with him and also gave him beatings during the said incident. His daughter called at 100 number. Police came at the spot and got extinguished the fire, however, the police officials did not take any action on that day. Thereafter, the witness met the DCP and gave a complaint to him. He has deposed that the value of the fodder was of approximately Rs. 10,000/-.
5.1. In his cross-examination, Hari Krishan (PW1) stated that the incident of fire in the fodder took place on 03.06.2015. A boy namely Rahul informed her daughter about the fire and thereafter she called on 100 number. He further testified that the plot in question was allotted to his father and he has three brothers including accused Davender. He admitted that an injunction suit is also pending qua the said property and the interim application has been dismissed by the Ld. Civil Judge. He then admitted that the plot in question is used by him, accused Devender and all his brothers. He denied the suggestion that accused Devender is the co- sharer of the plot in question. He stated that he has no receipt of purchase of the construction material for construction of the wall. Further, he stated that although he has no receipt for the purchase of fodder, the same is due to the fact that the fodder was produced at his farm. He admitted that his daughter Gayatri told him about the fire and the plot is not visible from his residence. He admitted that he did not see the accused persons lighting fire to the fodder as he was in the field at the time when his daughter informed him about the fire. He denied the suggestion that he has filed the present case only to pressurize the accused to not claim their share in the property.
6. Ramesh Kumar (PW2) stated on oath that he did not DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 5 of 16 CHAUDHARY Date: 2021.09.23 14:19:41 +05'30' remember the date, month and year of the incident. However, it was about 05:30 PM during summer days, when he saw smoke coming out from the plot of Hari Kishan. He had instructed some boys playing near the spot to inform Hari Kishan about the fire. Thereafter, he and his wife went to their plot. 6.1 In cross-examination by Ld. APP for the State, Ramesh Kumar (PW2) denied the suggestion that he stated to the police that he saw Devender, Sumit and Amit coming out of the plot. He denied his statement recorded under Section 161 CrPC and stated that he only saw the smoke coming out of the plot and he did not confirm the reason of smoke in the fodder. He stated that he did not inform the daughter of Hari Kishan about the smoke. He denied the suggestion that he is suppressing the true facts being a family member of the accused persons. In cross examination by Ld. Counsel for the accused, he stated that the accused persons and the complainant have common ancestry.
7. Gayatri (PW3) is the daughter of the complainant. She stated that at about 05.30 PM on the date of incident, their neighbour Ramesh informed that accused Davender @ Babli alongwith his two sons namely Amit and Sumit have set fire at their plot. She went to the plot and saw fire in the fodder and thereafter called 100 number. She deposed that the police came to the spot and recorded her statement.
7.1 During the cross-examination by Ld. APP for the State, Gayatri (PW3) stated that when she reached the plot, the bricks were lying on my plot as accused persons had already broken the boundary wall of my plot two days back i.e. on 01.06.2015 and they also threatened them to get out of their plot. She admitted that DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 6 of 16 CHAUDHARY Date: 2021.09.23 14:19:55 +05'30' she had not seen anyone setting fire to the fodder although she had knowledge about the same being done by the accused as the accused persons were continuously threatening them. In cross examination by Ld. Counsel for the accused, she admitted that the plot in dispute was allotted in the name of her grandfather. She admitted that the place of incident is not visible from their house. She admitted that a civil suit has been filed qua the said plot by her father.
8. Inspt. Satbir Singh (PW8) is the IO in the present case and he has deposed about the investigation conducted. He stated on 06.06.2015, a written complaint by Hari Kishan was marked to him. He conducted the enquiry and prepared a report for consideration by the ACP, Najafgarh. ACP, Najafgarh ordered to register FIR on the basis of enquiry. On 29.08.2015, FIR was registered. On 02.09.2015, he went to the spot where he prepared site plan and clicked photographs of the spot. He examined the witnesses and obtained report from the fire department. He recorded the disclosure statements of the accused persons and issued them notices under Section 41A CrPC. Thereafter, he prepared the chargesheet and filed the same before the court.
8.1 During the cross-examination, Inspt. Satbir Singh (PW8) stated that he cannot depose about the manner in which the fodder caught fire. He did not know the plot number where incident took place. He admitted that no burnt fodder is depicted in the photographs on record. He admitted knowledge about the pendency of the civil suit between the parties. He stated that he had verified the possession over the plot where incident had happened, however, did not check any documents regarding the ownership of the plot in question. DEV Digitally signed by Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 7 of 16 CHAUDHAR DEV CHAUDHARY Date: 2021.09.23 Y 14:20:08 +05'30'
9. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
10. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused persons were recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused persons stated that they are innocent and have been falsely implicated in the present case. Accused Davender further stated that the complainant is his brother, who had filed a civil suit against him. The said civil suit was dismissed. He stated that he wished to lead defence evidence. The other accused persons stated that they did not wish to lead defence evidence.
11. During the trial, defence led the following oral and documentary evidence-:
ORAL EVIDENCE DW-1 : Davender @ Babli DOCUMENTARY EVIDENCE Certified copy of the judgment in the Ex. DW1/1 :
civil suit.
12. Davender (DW1) is the accused in the present case, who entered into the witness box pursuant to his application under Section 315 CrPC. He stated on oath that he did not reside at village Rewla Khanpur at the time of incident. He stated that he used to live Digitally signed by DEV DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 8 of 16 CHAUDHARY Date: 2021.09.23 14:20:22 +05'30' at Roshan Vihar, Najafgarh at the relevant time. He has relied upon the certified copy of judgment of the civil suit. 12.1. In his cross-examination, Davender (DW1) admitted that he resides at Rewla Khanpur, as mentioned in his Aadhar card. He admitted that civil and criminal proceedings are different and have no bearing on each other. He stated that he did not get his address in his Aadhar card changed as he has property as well as his vote at the said address.
ARGUMENTS -
13. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
14. It is argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the eye-witness to the incident, alongwith the other corroborative documentary evidence has proved the factum of the incident. Further, the motive of the accused persons is established. Moreover, the overall testimony of the witnesses is sufficient to implicate the accused persons. As such, it is prayed that the accused persons be punished for the said offences.
15. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the eye witnesses have not deposed about the presence of the accused persons on the spot. Further, he has contended that there are inconsistencies in the testimonies of the witnesses and they cannot be relied upon. It is argued that the DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 9 of 16 CHAUDHARY Date: 2021.09.23 14:20:42 +05'30' prosecution has failed to discharge the burden cast upon it and the present case has been lodged by the complainant only to pressurise the accused to not claim ownership of the disputed plot. As such, it is prayed that the accused persons be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
16. The accused persons have been charged for the offences of mischief by fire (S. 435 IPC), house trespass after preparation for assault or wrongful restraint (S. 452 IPC) and criminal intimidation (S. 506 IPC) alongwith Section 34 IPC, which deals with the commission of acts in furtherance of common intention. Under Section 435 IPC, the factum of using fire to cause damage to agricultural property worth Rs. 10 or more by the accused is to be proved, alongwith his mens rea for commission of the offence. Under Section 452 IPC, commission of house trespass in terms of Section 442 IPC is to be proved and it has to be further proved by the prosecution that the accused had prepared himself to hurt, or assault, or wrongfully restrain the victim. For the offence under Section 506 IPC, it has to be proved that the accused threatened the complainant with injury to him or someone in which the complainant is interested, in order to cause alarm to the complainant, or cause the complainant to do or omit to do, a thing which he is entitled to legally do, so that the threat can be avoided.
17. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the Digitally signed by Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 10 of 16 DEV DEV CHAUDHARY CHAUDHARY Date: 2021.09.23 14:20:57 +05'30' guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
EVIDENCE OF STAR WITNESSES -
18. The case of the prosecution hinges on the testimony of the main witnesses, i.e. PW1 - the complainant, PW2 - the eye witness, PW3 - daughter of the complainant and another eye witness.
19. However, on appreciation of the testimonies of these witnesses, it is apparent that the essential ingredients of the offences are not proved. PW1 has deposed that he was at his field when the accused persons allegedly broke his wall. Further, it is an admitted stance of the witness that he did not see the incident of fodder burning. He has deposed that he was at his field when his daughter informed him about the fire. It is specifically stated that he did not see the accused persons lighting up the fodder. Further, the witness deposed that his plot (where the fodder was kept) is not visible from the residence.
20. Therefore, the complainant is not an eye witness to the incident. The witness deposed that the accused persons had a quarrel with him on the date of incident and also gave him beatings. However, no MLC of the witness has been proved on record to corroborate this version. Further, there is no explanation as to how the accused persons escaped after the scuffle. In the cross examination, the said witness has admitted that in the civil suit pending between the parties, his application for grant of stay has been declined. Interestingly, the witness also admitted that the plot DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 11 of 16 CHAUDHARY Date: 2021.09.23 14:21:13 +05'30' in question was allotted to his father and the same is being used by him and the accused Davender alongwith their brothers. Thereafter, he changed his statement to assert that accused Davender is not using the plot. Therefore, the complainant has failed to prove beyond reasonable doubt that the accused persons trespassed on the property and started fire in the fodder, on the date of incident.
21. PW2 has been brought to the stand by the prosecution as an eye witness. However, he has failed to support the prosecution's version. He has stated on oath that he saw smoke coming out from the plot of the complainant. Specifically, he has deposed that he did not see if the smoke was coming out due to burning of fodder. Further, the witness deposed that he had only heard about the fact from someone. Thus, the witness is not an eye- witness to the incident and his testimony does not incriminate the accused persons in any manner. Being hearsay evidence and hit by the bar enshrined under Section 60 of the Indian Evidence Act, 1872, no value can be attached to his testimony.
22. PW3 is the daughter of the complainant, who has deposed that she was informed by Ramesh (PW2) regarding the fire. This is in contradiction to the testimony of the PW2 Ramesh who has stated that he had asked boys playing the vicinity to inform at the house of the complainant regarding the fire. In this regard, PW1 has stated that one Rahul, who is son a Ramesh PW2 and not a witness in the present case, had informed his daughter. When she reached the spot, she saw the fire in the fodder. Thereafter, she called at 100 number. This witness has also specifically admitted not witnessing the accused persons setting the fodder on fire. She deposed that she knows that the accused set the fire, as the accused DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 12 of 16 CHAUDHAR Date: 2021.09.23 Y 14:21:29 +05'30' were continuously threatening them to vacate the plot. However, the fact that accused persons initiated the fire remains an opinion of the witness, which cannot take place of proof. The witness thereafter also admitted that the place of incident is not visible from her house.
23. The conclusion of the above discussion is that the presence of the accused persons at the spot, on the date of incident, is not established beyond reasonable doubt. None of the prosecution witnesses has seen the accused persons setting the fire to the fodder.
OTHER FACTORS -
24. Motive - Ld. APP for the State has argued that the accused persons had motive to commit the offence, as they had a dispute with the complainant over the said plot. However, it is observed that in absence of any other circumstance against the accused, conviction cannot be based solely on motive. Even otherwise, the presence of the dispute between the parties qua the said plot is a two-way sword in the present case. The accused have also relied upon the said dispute to contend that the complainant has falsely implicated them in order to coerce them into not claiming ownership of the plot in question. The certified copy of the judgment passed in the civil suit is Ex. DW1/1. The complainant had filed the said suit against the accused for grant of permanent injunction and the same has been dismissed by the Civil Court. Therefore, in absence of any other incriminating evidence, the fact that the property dispute between the parties is pending can only make the defence of false implication for purposes of dissuading the accused from staking claim to the property, plausible. DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 13 of 16 CHAUDHARY Date: 2021.09.23 14:21:45 +05'30'
25. Documentary Evidence - The documentary evidence in support of the case is also not reliable. The photographs of the crime scene are Ex. A1 to A6. At the outset, it is relevant to note that the photographs are neither accompanied by any certificate under Section 65 B on the Indian Evidence Act, 1872, as objected by the ld. counsel for the defence, nor any negatives. Thus, without any explanation in this regard, the same cannot be read into evidence. Even otherwise, on a bare perusal of the same, it can be observed that no burnt fodder in seen in the photographs. The IO PW8 has also admitted the said fact in his testimony. The IO PW8 has further admitted that he had not verified the ownership of the property, even though he had checked the possession of the same. Further, Ex. PW5/A is the report of the Fire Department and Ex. PW5/B is the Fire Report. However, the document Ex. PW5/B, which gives details about the nature of fire and the response, is not supported by any certificate under Section 65B of the Indian Evidence Act, 1872, it being a computer-generated report. Hence, the same cannot be read into evidence as non-production of the requisite certificate, which is a condition precedent to admissibility of such evidence, renders the document inadmissible in evidence, despite it being marked.
26. Therefore, from the above discussion, it can be safely held that the prosecution has failed to discharge its burden beyond reasonable doubt. The ocular evidence of the witnesses does not prove the trespass on the property by the accused persons and further does not prove mischief as there is no evidence to establish their presence at the spot. The complainant is unreliable owning to the inconsistencies in his testimony highlighted above. Further, the Digitally signed by Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 14 of 16 DEV DEV CHAUDHARY CHAUDHARY Date: 2021.09.23 14:22:05 +05'30' documentary evidence does not incriminate the accused persons in any manner. There is absolutely no evidence on record to point as to what preparation the accused persons had made to cause hurt etc, which is the essential requirement of Section 452 IPC. It is not the case of the prosecution that the accused persons had any weapons with them. Therefore, the requisite ingredients of the offence under Section 435 IPC and 452 IPC are not fulfilled beyond reasonable doubt.
27. In so far as the offence under Section 506 IPC is concerned, the complainant PW1 has not deposed about any threats extended to him. PW3 has deposed that the accused persons continuously threatened them with respect to vacating the plot and killing her brother. However, no specifics have been mentioned. Admittedly, the witness has not deposed about even meeting the accused persons on the date of offence, i.e. 03.06.2015. Therefore, it is not clear as to how were these threats extended. Even otherwise, as per the testimony of the witness herself, the same were extended to her brother, who has not been examined as a witness. She has deposed about threats on 01.06.2015, however, again the same is only a bald statement, without any corroboration or elaboration. Moreover, there is no evidence whatsoever regarding common intention of the accused persons, since their presence is itself not established on the site.
CONCLUSION -
28. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the DEV Digitally signed by DEV CHAUDHARY Cr. Case No. 429518/2016 STATE VS. DAVENDER @ BABLI Page 15 of 16 CHAUDHAR Date: 2021.09.23 Y 14:22:24 +05'30' offences charged against the accused, beyond reasonable doubt. The star witnesses of the prosecution do not support the version of the prosecution and have failed to prove the required ingredients of the offences beyond reasonable doubt. The documentary evidence, which could have corroborated the prosecution's case, has failed to do so.
29. Resultantly, the accused persons Davender @ Babli, Sumit Kumar and Amit Kumar are entitled to benefit of reasonable doubt and are hereby held not guilty of the offences punishable under Section 452/435/506/34 of the Indian Penal Code, 1860. They are hereby acquitted of all charges.
ORDER -: ACQUITTED Pronounced in open court on 23.09.2021 in presence of accused persons.
This judgment contains 16 pages and each page has been signed by the undersigned.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2021.09.23
14:22:44 +05'30'
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi
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