Delhi District Court
During CrossExamination vs Unknown on 20 December, 2010
IN THE COURT OF SH. NAVEEN GUPTA, MM,
ROHINI COURTS, DELHI
1. FIR No. : 340/89
2. Date of Offence : 22.10.89
3. Name of the complainant : Surender Chillar
4. Name, parentage and Address
of the accused : 1. Balbir Singh (Expired),
S/o Sh. Bhrat Singh,
R/o Village Kirari,
Sultanpuri.
2. Mahipal Singh,
S/o Sh. Balbir Singh,
R/o Village Kirari,
Sultanpuri.
3. Hargyan S/o Sh. Jai Ram,
R/o T19, Mool Chand
Colony, Delhi.
4. Jai Kumar (Expired),
S/o Sh. Raghvir Singh,
R/o H.No. 201 D/DG II,
FIR No. 340/89
PS: Sultanpuri
State v. Balbir Singh 1/35
Vikas Puri, Delhi.
5. Jai Singh S/o Ram Dutt,
R/o Village Tadahedi,
PS Bahadurgarh.
6. Om Prakash @ Omi (PO),
S/o Sh. Lakhi Ram
R/o Village Tadahedi,
PS Bahadurgarh.
5. Offences proved : Section 147/447/427/149 IPC
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 04.12.10
8. Sentence or final order : Accused no. 2, 3 and 5 are
convicted.
9. Date of order : 20.12.10
JUDGMENT
1. The present case emanated from the complaint Ex.PW6/B of Surender Chillar/ complainant, PW6, wherein he submitted that his wife Krishna Chillar purchased a plot of 300 sq. yards in khasra no. 900/901, Kirari, Sulaiman Nagar, Delhi, from Kuldeep, PW10, FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 2/35 in consideration amount of Rs.30,000; Kuldeep had purchased 2000 sq. yards in the said khasra no. from Jai Kanwar on 27.11.87; after execution of GPA in favour of his wife [complainant's wife], they had constructed boundary wall of the plot and a room in it; on 22.10.89, Jai Kanwar and his associates Balbir, Mahipal, Jai Singh, Om Pahalwan and Hargyan entered into their plot, forcefully, in their absence and demolished the room; they took away cot and beddings kept in the room; they had taken possession of the plot illegally; further, their neighbours Daryo Singh, PW1, and Satish Gaur, PW2, who were present at the spot at the time of impugned incident, had told the whole incident to him. He further submitted that on 23.10.89, in the morning, when he visited his plot, Jai Kanwar and his associates were present there; he inquired about the reason for illegal possession and demolishing of room; to which, they intimidated him to kill; since they were 56 people and there was apprehension that they might be carrying weapons, hence, he came back quietly. On the said allegations, present case was registered.
2. After investigation, chargesheet was filed against the accused FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 3/35 persons. The copies of chargesheet were supplied to the accused in compliance of Section 207 Cr. P. C. Thereafter, charge was framed against the accused under Section 147/454/427/506 read with Section 149 of the Indian Penal Code (for short 'IPC') to which they pleaded not guilty and claimed trial.
3. During trial, due to nonappearance of accused Om Prakash, he was declared proclaimed offender on 01.12.99. On expiry of accused Jai Kumar and accused Balbir, case against them was abated on 01.05.01 and 24.04.10 respectively. Hence, vide this judgment, culpability, if any, of accused Om Prakash has not been decided.
4. In support of its version, prosecution examined 10 witnesses. PW1 is Daryo Singh; PW2 is Satish Gaur; PW3 is Jogender Singh; PW4 is Sh. T.R. Naval, Ld. Addl. District & Sessions Judge, Karkardooma Courts; PW5 is Hari Prakash, Kanoogo; PW6 is Surender Singh Chillar, complainant; PW7 is ASI Tota Singh, Duty Officer; PW8 is Suraj Mal; PW9 is SI Mukhtiyar Singh, Investigating Officer and PW10 is Kuldeep Vats. FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 4/35
5. After conclusion of evidence, statement of accused were recorded wherein accused claimed to be innocent and denied the allegations against them. Accused Mahipal and Hargyan did not opt to lead evidence in defence. Accused Jai Singh, however, opted to lead evidence in defence but he did not lead any evidence.
6. I have heard Ld. APP for State and Ld. Counsels for accused persons. I have perused the record.
7. Now, PW1 submitted that he was having one plot of 500 sq. yards in Kirari village, Sulaiman Nagar; one plot of 300 sq. yards of Krishna Chillar was just adjacent to his plot in which one room was constructed; the room was lying locked; on 22.10.89, when he along with Satish Gaur, Suraj Mal and other persons were present at the plot, at that time, accused persons came there and entered in the plot of Krishna Chillar; they broke the lock of room and thrown out the articles lying in the room; when they objected to the same, they were criminally intimidated; they [accused persons] were having weapons in their hands; they broke the door of room too; on FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 5/35 the next day, they informed Mr. Chillar regarding the incident. During crossexamination, he submitted that he did not make any complaint to police when accused persons trespassed upon the said plot. No articles like lathi, jelly, kassi were taken into possession by the police in his presence. He did not go to the police station since it was not his property. He denied the suggestion that he did not see the incident at the spot. He admitted the suggestion that plot originally belonged to J.K. Singh.
PW2 was, firstly, examined on 27.02.02 but his examination was deferred since he wished to refresh his memory and he was not having reading glasses on that day. On subsequent examination i.e. on 07.06.10, he submitted that it was plot measuring 300 sq. yards at Khasra no. 901 in village Kirari; accused persons had razed the building i.e. one room already constructed by S.S.Chillar on that plot and were removing the material from there. He tried to intervene to stop the breaking of the room but the accused persons did not pay any heed; he identified accused Jai Singh, Hargyan and Mahipal who were present in the Court on that day. During cross examination by Ld. Defence Counsel, he submitted that his plot FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 6/35 was adjacent to the impugned plot; the impugned incident occurred in the noon time on 22.10.89. Thereafter, he made a call to S.S.Chillar. He admitted the suggestion that as per law, no plot could be carved out at Khasra no. 901. He denied the suggestion that there was no boundary wall on the plot in question. He admitted the suggestion that J.K. Singh was owner as per revenue record. He submitted that he was aware of the accused persons since visitor at J.K.Singh's plot before the time of the incident. PW3 submitted that he did not know anything about the present case. During crossexamination by Ld.APP, he admitted that on 05.02.89, Kuldeep Singh had got GPA registered in the name of Krishna Chillar in his presence.
PW4 submitted that on 28.02.90, on application Ex.PW4/A of Investigating Officer, specimen signatures Ex.PW4/B of J.K. Singh were taken in his presence. PW5 tendered sizra Ex. PW5/A and copy of Khatoni Ex. PW5/B of the impugned area. PW6 submitted almost on the similar lines as deposed by him in FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 7/35 his statement Ex. PW6/B given to the police. He tendered complaint Ex. PW6/A moved by him to DCP, pointing out memo Ex. PW6/C, the documents through which Kuldeep had sold the impugned property to his wife vide Ex. PW6/D to Ex. PW6/G. PW7 tendered FIR copy of which was Ex.PW7/A and endorsement on rukka Ex. PW7/B. PW8 submitted that on 22.10.89, all the six persons came at the house of Chillar; they started breaking the walls, doors and the shed of roof; the accused persons were armed with weapons. They also abused Chillar and his wife. He further submitted that on 05.09.89, he had arranged deal between Krishna and Kuldeep wherein she purchased 300 sq. yards of land from Kuldeep and the payment was also made in his presence. He further submitted that he witnessed execution of all the documents.
PW9 submitted about the steps taken by him during investigation. He submitted that on 12.12.89, the case file was assigned to him for further investigation. He tendered site plan prepared at the instance of the complainant vide Ex.PW9/A, seizure memo FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 8/35 Ex.PW9/B vide which property documents were taken in possession, bail bonds of accused persons Ex.PW9/C to Ex.PW9/H. He further submitted that he took specimen signatures of J.K. Singh and sent the same to CFSL. He submitted that a letter Ex. P1 was received from CFSL vide which no final opinion was given as few more signatures were required by the office but the accused refused to give further signatures.
PW10 submitted that he took 2000 sq. yards from a plot of khasra no. 900/901, Kirari, Sulaiman Nagar, from J.K. Singh S/o Raghuvir Singh in the consideration amount of Rs.80,000/. He tendered documents of sale to this effect vide Ex. PW10/A to Ex. PW10/D. He submitted that all those documents were executed and signed by J.K. Singh in his presence. Further, on 05.09.89, he sold 300 sq. yards from the said plot to Krishna Chillar in the consideration amount of Rs.30,000 vide documents Ex. PW6/D to Ex. PW6/G. The documents were executed in the presence of Jogender Singh. Thereafter, complainant constructed a boundary wall and a room in the plot.
FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 9/35
8. Now, in present case, prosecution was required to answer following questions to bring home the charges leveled against the accused persons:
(a) Whether the impugned plot was in possession of Krisna Chillar/ or of complainant?
(b) Whether any room/ wall had been constructed over the impugned plot by the complainant?
(c) Whether on 22.10.89, the accused persons constituted an unlawful assembly?
(d) Whether on 22.10.89, accused persons being the members of that unlawful assembly entered into the impugned plot/ building?
(e) Whether on 22.10.89, any force or violence was used over that plot, or any damage was caused to the structure constructed over that plot, by that unlawful assembly?
(f) Whether on 23.10.89, complainant was criminally intimidated by the members of unlawful assembly?
9. Ld. Defence Counsels contended that present case had been registered on the statement of complainant, PW6, wherein he had FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 10/35 submitted, about the impugned incident of trespass and mischief etc. allegedly committed by the unlawful assembly consisted of accused persons, on the basis of information received from Daryo Singh, PW1, and Satish Gaur, PW2; hence, his testimony was hearsay qua impugned incident and could not be relied upon. Further, accused persons had been falsely implicated in this case at instance of father of the complainant; the same could be inferred from the unexplained delay in registration of FIR. Further, the complainant had given false information qua theft of articles kept at the room constructed in the impugned plot; the same could be observed from the fact that the Investigating Officer had mentioned in the challan that no such theft had been committed.
Ld. Defence counsel, further, contended that Investigating Officer has not conducted investigation in fair manner which could be observed from the ordersheets of the Court itself. He had specifically mentioned about the ordersheets of 29.01.04 and 16.07.04, wherein Investigating Officer mentioned that he had moved a request application in the Court for taking specific signatures of accused J.K.Singh but the accused had refused to give any further signatures but Investigating Officer could not be able to FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 11/35 trace and point out any such request application or refusal of the accused on record. Further on 29.08.05, the Court had observed that it prima facie had appeared that Investigating Officer had not taken any steps for sending further signatures of J.K.Singh for comparison to the FSL while authorship of documents was vital piece of evidence in this case.
Ld. Counsel, further, submitted that on 25.02.06, complainant wished to settle the matter; the same showed that the present case had been implanted upon the accused persons. Further, Krishna Chillar, alleged owner of the plot, was not examined. On 04.08.07, an application which was forwarded by Ld. APP was filed for dropping from the list of witnesses PW Krishna Chillar which showed the malafide of the complainant.
Ld. Counsel further argued that even otherwise prosecution had failed to prove any case against accused persons due to the following reasons. Firstly, the impugned Khasra No. 900/901 was having 30,000 sq. yards while the impugned plot was of merely 300 sq. yards. Further, PW5 had submitted that there was restrain order regarding sale of the land out of khasra no. 900/901; the same had been clearly mentioned in copy of khatoni Ex. PW5/B. FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 12/35 Moreover, the impugned area was agricultural land and the same could not have been sold. Above all, the impugned land had never been sold by J.K.Singh to Kuldeep. CFSL report was also silent about the signatures of J.K.Singh on the documents of sale allegedly executed by J.K.Singh in favour of Kuldeep. Moreover, there was no entry in the revenue record qua ownership of complainant or his wife over the impugned plot.
Ld. Defence Counsel, further argued that no demarcation of impugned plot had been done which could have ascertained the fact of possession over that plot on the impugned day of alleged trespass. Further, sizra Ex. PW5/A had also not shown any construction over the impugned plot. Further, testimonies of PW6, PW1 and PW2 bore contradictions regarding location of their plots since PW1 and PW2 had submitted that their plots were adjacent to the impugned plot which belonged to wife of complainant while PW6, complainant, submitted that the plots of PW1 and PW2 were situated at a distance from the impugned plot. Further, site plan Ex. PW9/A had shown that plots of PW1 and PW2 were situated adjacent to the impugned plot. But, sizra Ex. PW5/A did not show any such bifurcation in the impugned FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 13/35 khasras, hence, site plan Ex.PW9/A could not be believed.
Ld. Counsel, lastly, contended that further, PW1 and PW2, alleged eye witnesses of the impugned incident, had not assigned any specific role played by the accused persons on the impugned day i.e. on 22.10.89. Further, there was contradiction in the testimonies of PW1, PW2 and PW6 regarding information given to PW6 qua alleged commission of trespass and mischief etc. at his plot. Further, the complainant had made improvement in his testimony before the Court i.e. accused were possessed with arms on 23.10.89 while he had not made any such submission in his statement Ex. PW6/B. Hence, his allegations qua criminal intimidation could not be relied upon. Lastly, PW6 had submitted that neither he was residing in his plot nor there was any servant; hence, there could not be any commission of offence under the category of housetrespass.
10. Now, Ld. Defense Counsel has raised doubt on the ownership of the wife of complainant over the plot. Firstly, PW1 and PW2 had categorically stated that the impugned plot belonged to Krishna, wife of the complainant. PW3 deposed that the documents for sale FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 14/35 of plot to Krishna were registered in his presence. PW6 had claimed ownership of his wife over the plot. PW8 submitted that on 05.09.89, he had arranged the deal between Kuldeep and Krishna regarding purchase of the plot by the later. Finally, PW10 submitted that he had purchased total 2000 sq. yards from J.K.Singh and out of the same he sold the impugned plot of 300 sq. yards to Krishna. The documents of sale had been tendered in evidence vide Ex. PW6/D to Ex.PW 6/G. All the above mentioned witnesses remained unmoved, during their crossexamination, on the said version of ownership of Krishna over the impugned plot. Moreover, testimonies of PW3 and PW8 remained uncontroverted.
Further, in this case, the Court is not supposed to decide the legality of the ownership of Krishna over the plot. The questions:
whether the relevant khatoni Ex. PW5/B bears the entry in favour of Krishna as owner or whether J.K.Singh had right to sell the agricultural land out of khasra no. 900/901 or whether any restrain order i.e. the impugned plot could not be sold was in existence or whether the sizra Ex. PW5/A bears the demarcation of bifurcation at the said khasras; are not required to be answered in the present FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 15/35 dispute. The present dispute is related to the trespass i.e. offence against the possession over the plot.
But since the accused persons have raised certain doubts then it is in the interest of justice to discuss them, atleast in brief, in the light of requirements of this case. Again, the accused had raised doubt over the initial sale of 2000 sq. yards by J.K.Singh to Kuldeep. The accused had tried to create doubt to this effect by stating that the CFSL report Ex.P1 was inconclusive about the authorship of J.K.Singh on the documents of sale to Kuldeep and the Investigating Officer did not send further specimen signatures to CFSL for analysis. Now, if the Investigating Officer, during investigation, had not sent fresh specimen signatures to CFSL, then the same, in presence of testimonies of prosecution witnesses, would not give any benefit to the accused persons. At this stage, the observation of the Apex Court in Ambika Prasad v. State (Delhi Administration), AIR 200 SC 718, provides guidance that:
8. [D]ealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be prop er to acquit the accused if the case is otherwise es tablished conclusively because in that event it FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 16/35 would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed: "....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the com plainant party and this would obviously shake the confidence of the people not merely in the lawen forcing agency but also in the administration of jus tice."
9. Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held: "...It may be that such lapse is committed designed ly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
The present case is also on similar footing. Hence, the lapse, if any, on part of Investigating Officer in not sending fresh specimen signatures along with disputed signatures to CFSL for analysis does not provide any benefit of doubt to the accused persons. Moreover, if accused had any objection qua authorship over those FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 17/35 documents, then he, himself, should have given specimen signatures before the Court and requested for sending the same for comparison to the handwriting expert. Moreover, accused had not been able to produce any evidence to discard the documents of sale executed between J.K.Singh and Kuldeep vide Ex. PW10/A to Ex. PW10/D.
11. Further, it has already been observed that in the cases pertaining to criminal trespass, ownership over the property is not required to be proved since the offence is committed against possession. The same has been held by the Constitutional Courts in plethora of cases. The Hon'ble Delhi High Court in Kishore Jain v. State, 2002 Cri.L.J. 1154, has held that:
4. There cannot be any dispute about the proposition of law that offence of criminal trespass presupposes, positive or defacto possession of the complainant 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.
The Hon'ble Kerala High Court in Vinayachandran v. State of FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 18/35 Kerala, 1997 (3) RCR (Criminal) 177, has held that:
7. [S]imilarly, a learned Judge of the Madras High Court in M. Ramaswamy v. Lakshmi Raman and others, 1987 MLJ (Crl.) 324 took the view that an offence under Section 448 IPC is not an offence against ownership or title but is it is an offence against possession and occupation. Considerations like exclusive title to the property, claims, counter claims are alien to Section 448 IPC.
Having discussed the above mentioned legal position, it is better to decide about the possession over the impugned plot on 22.10.89. Now, this has already been observed in first para of point no.10 that prosecution witnesses had deposed about the ownership of Krishna over the plot. From the discussion in the preceding paragraph, it is concluded that the prosecution had, with the help of oral and documentary evidence, proved, prima facie, that Krishna had ownership over the impugned plot. PW1, PW2, PW6 and PW10 deposed about the construction of boundary wall and a room over the plot by the complainant. Not even a single question was put to the prosecution witnesses by the accused persons about the possession over the impugned plot. The accused had not put even a suggestion to the effect that the complainant or his wife did FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 19/35 not have possession over the impugned plot. In these circumstances, it is proved beyond reasonable doubt that complainant had the possession over the impugned plot on 22.10.89.
At this stage, it is pertinent to note that in these circumstances, if the prosecution had not examined Krishna Chillar, the same does not affect its case; since she was not an ocular witness to any of the alleged incident either of 22.10.89 or of 23.10.89. The application filed by the complainant for dropping her from the list of witnesses bore reasonable grounds to do the same; hence, filing of the same does not lead to infer, at all, that there was any mala fide on the part of complainant.
12. Further, PW1, PW2, PW6 and PW10, during their cross examination, remained unmoved on their version that one room/ boundary wall had been constructed over the plot by the complainant. PW6 was crossexamined at length but accused could not create even a remote doubt to the effect that there was no such construction over the plot. In these circumstances, the arguments, at this stage, regarding demarcation, contradiction qua FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 20/35 location of plot in testimonies of witnesses, in the site plan Ex. PW9/A or in the sizra Ex. PW5/A becomes immaterial.
13. Now, coming on the next question i.e. unlawful assembly, the legal position has been explained by the Apex Court in Shivjee Singh v. State of Bihar, AIR 2009 SC 417, that:
8. [T]he crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assem bly, it cannot be said that he is a member of an as sembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word `ob ject' means the purpose or design and, in order to make it `common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A com mon object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other mem FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 21/35 bers may just join and adopt it. Once formed, it need not continue to be the same. It may be modi fied or altered or abandoned at any stage. The ex pression `in prosecution of common object' as ap pearing in Section 149 have to be strictly construed as equivalent to `in order to attain the common ob ject'....
9. `[C]ommon object' is different from a `common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The `common ob ject' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding cir cumstances. It may be gathered from the course of conduct adopted by the members of the assembly.
14. PW1 deposed that accused persons entered into the plot on 22.10.89. He deposed that they were having weapons with them; they broke the doors of the room. He had specifically named all the accused persons who had committed the same. He, during his intense crossexamination, remained unmoved on his above mentioned version.
PW2, initially, on 27.02.02, could not depose anything and FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 22/35 requested for permission to refresh his memory; thereafter, on his subsequent examination, he identified the accused persons present in the Court who had razed the building constructed over the plot. During crossexamination, he submitted further that the accused persons had demolished the boundary wall. PW2 was, initially, examined after more than 12 years of commission of alleged offence, hence, it is natural that any person may forget some of the facts relating to the incident, but the same does not wash off his whole testimony. The Court is to separate the chaff from the grain. Hence, if PW2 deposed after refreshing his memory and he remained unmoved during his crossexamination, then no doubt could be created on his credibility. The Apex Court in Neelam Bahal v. State of Uttarakhand, 2010 III AD (SC) 238, has held that:
5. [L]ikewise we find difficult to disbelieve the statement of PW3, the injured victim himself as he has given a graphic description as to what had happened. It is true, as has been contended by Ms. Jaiswal, that there are some differences between the statements of these two witnesses but they are bound to occur with the evidence being recorded after about five years. It must also be borne in mind that a parrot like deposition after a long lapse of FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 23/35 time smacks of tutoring and some differences in fact advance the credibility of the witness.
Further, although PW8 did not provide detailed version of the impugned incident yet he had, very concisely, deposed that on 22.10.89, all the six persons came at the house of complainant and started breaking the walls, doors and shed of the roof. His testimony remained uncontroverted.
Further, accused could not create any doubt on presence of above mentioned witnesses at the spot during their cross examination.
Further, admittedly, PW6 was not present at the spot at the time of commission of alleged offence on 22.10.89. But he had deposed during his crossexamination that on 22.10.89, he received a telephone that accused persons had forcibly entered in his plot and had demolished the room; further, on 23.10.89, when he reached at spot at around 8.30 am, he saw all accused persons sitting in his plot. The above mentioned version of PW6 acts as res geastae since the same is so connected with facts in issue as to form part of the same transaction.
The accused persons had argued that prosecution had not FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 24/35 been able to assign any specific role played by each individual accused. At this stage, it is pertinent to note that when six persons armed with weapons had entered into the plot of another person, it is natural that any neighbor, PW1, PW2 and PW8, would not be able to remember, precisely, the part played by each accused during commission of alleged offence. Moreover, the accused persons had not put any question to this effect to the prosecution witnesses during their examination for the reason best known to them.
Ld. Defence Counsel had pointed out some contradictions in the testimonies of prosecution witnesses such as: about the time when information of commission of alleged offence was given to the complainant by PW1 or PW2. The minor discrepancies, if any, which are not material in nature do not affect the credibility of prosecution witnesses and consequently, the case of prosecution. The Apex Court in Appabhai v. State of Gujarat, AIR 1988 SC 696, has held that:
13. [T]he Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 25/35 normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
Hence, from the above mentioned discussion, prosecution has proved beyond reasonable doubt that accused persons were six in numbers, including accused Mahipal, Hargyan and Jai Singh, when they entered into the plot of complainant on 22.10.89. Now, from the facts and circumstances that they were armed with weapons and demolished the construction made over the plot, it could be safely inferred that accused persons constituted unlawful assembly having common object of demolishing the said construction made over the plot.
FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 26/35
15. Further, with regard to alleged commission of rioting, the observa tion of the Hon'ble Calcutta High Court in State of West Bengal v. Nilkantha Mahato, 2003 Cri.L.J. 3566, is relevant:
47. [T]he accused persons being more than five in number formed an assembly the common object of which was to commit criminal trespass into the land which was under possession of another person and to enforce by means of criminal force some supposed right there. Therefore, it became an unlawful assembly. It has further been proved from the evidence, as it has been shown above, that this assembly used force and violence in prosecution of their said common object and thereby the offence of rioting as envisaged under Section 146, I.P.C.
becomes complete.
The present case is on the similar footing. The accused persons having formed unlawful assembly used force and demolished the construction over the plot. Hence, prosecution has also proved the ingredients of offence of rioting.
16. Having concluded that the accused persons entered into the impugned plot and demolished the construction; it is, further, FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 27/35 proved that they committed the offence of criminal trespass as defined under Section 441 of IPC. Now, it is required to be decided whether the said acts of the accused persons amount to commission of housetrespass as defined under Section 442 of IPC and consequently, whether they were liable for commission of offence punishable under Section 454 of IPC.
Before discussing the facts of this case, the observation of the Hon'ble Rajasthan High Court in Dal Chand v. State, 1966 Cri. L. J. 236, is required to be considered:
4. [S]econdly, it was argued that to constitute a housetrespass, the prosecution ought to have proved that the building upon which the offence of trespass was committed is a building used as a human dwelling or used as a place of worship or as a place for the custody of the property. The submission of the learned counsel is that there are no materials to justify a conclusion that the building was used as a human dwelling or for the custody of the property. The question of the property being used as a place of worship does not arise.
7. [T]he word ''building" in my opinion, cannot have a fixed connotation and it must vary from country to country and from place to place according to the climatic conditions, availability of FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 28/35 materials for building purposes and the habits and notions of the people with regard to their residence.
[A]ny structure which does not afford any such protection by itself but merely serves as a fencing or other means of merely preventing ingress or egress cannot make the place a building or a house within the meaning of either of those two sections." [T]hus the question whether a particular building is used as a human dwelling or as a place for the custody of the property cannot be determined on rigid and inflexible formula but must be considered and determined after due consideration of the nature of the actual user of the structure as also the normal adaptability of the property to a particular use as also the general notions of the people in relation to residence and custody of property. It follows that each case must be decided on its own facts and circumstances.
Applying the above mentioned legal position in present case, PW6 deposed that neither he was residing in his plot nor there was any servant. Further, he was silent about the fact that whether he had kept any article/s in the impugned room. Further, during investigation too, no evidence qua allegation of theft of articles kept at the room could be found. The same leads to conclusion that FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 29/35 the impugned room had not been used as a human dwelling or used as a place of worship or as a place for the custody of the property and that room merely served as a fencing or other means of merely preventing ingress or egress or more specifically, as a mark of possession of complainant over the plot. Hence, the construction of impugned room did not make the place a building or a house. In these circumstances, the prosecution has failed to prove the ingredients of housetrespass.
17. Lastly, PW6 deposed that he was criminally intimidated on 23.10.89. He deposed that all the accused were duly armed with lathis and jellies but he could not specifically state as to which accused was carrying which weapon; further, he did not have any scuffle with any accused; he was not assaulted or injured by accused.
Now, in his statement Ex. PW6/B given to police, PW6 had merely submitted about his apprehension that accused persons might be carrying weapons. But, he had not stated conclusively that the accused persons were armed with weapons at time of impugned incident of 23.10.89.
FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 30/35 Further, in his complaint Ex. PW6/A to DCP too, he stated:
"I immediately rushed to my said plot and found the above said persons and others goonda elements and they threatened me with dire consequences if I stayed there for a moment". Admittedly, complainant, PW6, is a lawyer by profession. It could not be perceived that he might have forgotten to mention in his above mentioned complaint that the accused persons were possessed with weapons. Hence, in these circumstances, the above mentioned version of PW6 that the accused persons were having arms at time of impugned incident of 23.10.89 could not be, safely, relied upon.
At this stage, it is pertinent to clarify that the above mentioned observation would not affect the testimony of PW6 on other aspects. The Apex Court in Appabhai v. State of Gujarat, supra, has held that:
13. [T]he courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J.
speaking for this court in Sohrab v. State of Madhya Pradesh 1972 Cri LJ 1302 at 1305 observed:
This Court has held that falsus in uno falsus in FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 31/35 omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
Coming back to the discussion on alleged criminal intimidation, it is trite law that mere threat is no offence. The Hon'ble Delhi High Court in Kanshi Ram v. State, 2000(3) RCR (Criminal) 557, has held that:
10. So far as the offence under Section 506 IPC is concerned, the complainant Israr Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Israr Ahmed, the exact words used by the petitioner were "Maro Salon Ko". Strangely enough, Israr Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other mediapersons did not retrace their steps. It is well settled that mere threat is no offence. That FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 32/35 being so the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under Section 506 IPC can be framed against the petitioner on the basis of the said evidence.
The Hon'ble Madras High Court in Noble Mohandas v. State, 1989 Cri. L. J. 669, has held that:
Further for being an offence under Sec. 506(2) which is rather an important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person uttering it does exact mean what he says and also when the person at whom threat is launched does not feel threatened actually. In fact P.W. 1 when she filed the complaint to the police officer, did not express any fear for her life nor asked for any protection. Therefore, the offence under S.506(2) is not made out.
Hence, considering factual and legal position, prosecution has failed to prove the charges of criminal intimidation leveled against accused persons beyond reasonable doubt.
18. Ld. Defence Counsel contended that accused persons had been FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 33/35 falsely implicated in present case. The accused persons had not brought on record any evidence of previous enmity between them and the complainant or any complaint made by them before the Court or competent authority qua their false implication in present case to bring home this argument. Moreover, they had not disputed their presence at the spot during examination of prosecution witnesses or in their statements recorded after conclusion of prosecution evidence.
Further, PW6 had deposed that after leaving the place of spot, he went to the PS Sultanpuri to lodge his complaint, but his complaint was not entertained by the police. In the light of above mentioned version, it is proved that there was no delay on part of the complainant in giving information to the police about the impugned incident.
Further, Investigating Officer, PW9, had provided explanation for delay in registration of FIR. He submitted that before registration of FIR, an enquiry was performed by vigilance department and on that enquiry the FIR was registered. The said version of PW9 makes the occurrence of impugned incident more credible and, precisely, explains the delay in registration of FIR. FIR No. 340/89 PS: Sultanpuri State v. Balbir Singh 34/35 In these circumstances, argument of false implication of accused persons in present case is a lame argument. Further, if the complainant had shown possibility of compromise between the parties, the same must have been stated at the behest of accused persons, hence, that does not provide any benefit of doubt to them.
19. Considering the above mentioned, prosecution has proved, beyond reasonable doubt, the ingredients of offence punishable under Section 147, 427 and 447 read with Section 149 of IPC against accused Mahipal, Hargyan and Jai Singh. Hence, accused Mahipal, Hargyan and Jai Singh are held guilty for the offences punishable under 147, 427 and 447 read with Section 149 of the Indian Penal Code.
Announced in open Court Naveen Gupta
(1+3 Copies) MM/Delhi/ 20.12.10
FIR No. 340/89
PS: Sultanpuri
State v. Balbir Singh 35/35