Delhi District Court
Ps: Dabri vs Sunarpati on 5 July, 2011
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IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 457/2000
PS: Dabri
U/s 448 IPC.
State V. Sunarpati.
Date of institution of the case : 28.06.2000
Date on which Judgment was reserved: 05.07.2011
JUDGMENT
a) S. No. of the case : 779/02
b) Date of commission of offence : 11.05.2000
c) Name of the Complainant : Sh. Dwarika Yadav
S/o Sh. Thagan Yadav
R/o Vill. Mareja, PS Daud Pur
Distt. Chapra, Bihar.
d) Name of accused and address : Smt. Sunarpati Devi
W/o Sh. Gaya Mehto
R/o RZ-300/345, Gali No.4,
West Sagarpur, N.Delhi.
e) Offence complained of : U/s 448 IPC
f) Plea of accused : Pleaded not guilty
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g) Final order : Convicted
h) Date of such order : 05.07.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1. The present case was registered on the statement of complainant Sh. Dwarika Yadav in which he alleged that he along with his wife and children residing at ground floor of H. No. RZ-300/345, Gali No. 4, Shivpuri, New Delhi as a tenant from Feb, 2000 for a monthly rent of Rs. 700/-. On 11.05.2000, he and his wife went to Delhi Cantt at the place of Peer Baba on bicycle. When they returned back at about 5.15 pm, their daughter was weeping. Their household articles were also lying outside the house. When they asked about the incident from their daughter, she replied that wife of their landlord had thrown away their articles from the house and she also asked their daughter to vacate the premises immediately. He put those articles back into the house and thereafter made the complaint regarding the trespass of accused / landlady into their premises to the police. At his complaint, FIR U/s 448 IPC registered.
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2. After completing the investigation, charge sheet U/s 173 CrPC filed against accused for the offence U/s 448 IPC. Cognizance taken accordingly and notice was framed against the accused for the offence u/s 448 IPC to which she pleaded not guilty and claimed trial.
3. To prove its case, Prosecution has cited five witnesses in its list of witnesses and examined all five witnesses.
4. PW-1 ASI Darshan Lal stated that on 11.05.2000 at about 10.55 pm, he received rukka on the basis of which, he recorded formal FIR No. 457/2000, carbon copy of which is Ex. PW-1/A.
5. PW-2 Sh. Dwarka Yadav stated that he was tenant of Dya Nand from 27.02.2000 @ Rs. 600/- and still he was residing in the same address at ground floor and he had three children namely Aakash, Karan and Santosh. On 11.05.2000 he had gone to Peer Baba in Delhi Cantt and he came back to his house at about 7.00 pm and he saw that his all 4 articles lying outside the road. He asked the landlady who was present at the spot, why she has put his articles outside the house and she told him that she wants to house vacated and also gave a slap beating to his daughter. Thereafter, he went to police station, Dabri. The landlady had thrown out his articles bed, stove, TV and other articles. He lodged a complaint with the police. Complaint bears his thumb impression at point A and same is Ex. PW-2/A. His daughter Santosh @ Kallo although met him at the spot and she also told landlady not to throw out luggage of her house and wait for her father. Police came to the spot and he was given possession by the assistance of the police. He further stated that he has shown the police the place of occurrence and police prepared site plan accordingly. My landlady did not issue any rent receipt.
6. PW-3 Reena W/o Sh. Dwarka Yadav stated that on 11.05.2000, she along with her husband went to Peer Baba Mazar and he came back at about 5.30 pm. Her daughter namely Kallo (Santosh) was at the premises. It is a rented premises. The landlady rented the said house initially Rs. 200/- and later on Rs. 700/-. She saw one bucket and 5 spice box were lying outside in the gali. The landlady was also present at the spot and she had also slapped her at the spot and the said articles were thrown by her. Her daughter also told her that she was also slapped by landlady and also threatened to vacate the premises or face consequences. The rented premises of ground floor. Later on accused landlady also threw out other articles from her premises. She went to police station and police also arrived at the spot and accused also threw out articles in the presence of police officials and her articles are again got kept inside the premises by the police. Police recorded her statement.
7. PW-4 Ms. Santosh @ Kallo stated that she is fourteen years old. 5 / 6 years back, when she was nine years old, she along with her father was residing as a tenant at the said premises. On that day, the landlady / accused had entered into her kitchen and thrown out all the utensils and other articles from the kitchedn and told her to vacate the premises immediately. At that time, her father and mother had gone to Peer Baba in Delhi Cantt. The daughter of the accused was also present along with the accused at that time and she slapped her 3/ 4 times. Police 6 had recorded her statement. She do not remember the date of incident as she was only nine years old at that time.
8. PW-5 Retd. SI Puran Chand stated that on 11.05.2000, he was posted in PS Dabri and on that day, one Mr. D. Yadav along with his wife had come to PS and had given his complaint Ex. PW-2/A, on the basis of that he prepared Tehrir which is Ex. PW-5/A and got the case registered. During investigation, he prepared site plan which is Ex. PW- 5/B. Accused was arrested on 23.05.2000 vide memo Ex. PW-5/C and thereafter released on bail. He recorded the statement of witnesses.
9. No other witness was examined by the prosecution and PE closed. The statement of the accused U/s 313 CrPC recorded in which she denied all the allegations made against her and she further submitted that she do not want to lead any defence evidence. Therefore, matter was fixed for final arguments.
10. I have heard the arguments of both the parties. Ld. APP for the 7 State has argued that the case is totally proved against the accused and she be given maximum punishment. Ld. Counsel for the accused stated that prosecution cannot prove any ingredients of the offence against accused. Ld. Counsel for the accused also argued that accused has filed eviction petition against the complainant which was allowed by the Court and the said premises was got vacated through Bailiff from the Court on 09.11.2009 and the present case is only a counter-blast to the proceedings which they have initiated against the complainant. Accused is falsely implicated in the present case and is liable to be acquitted. I have gone through the oral and documentary evidence on record.
11. It is the duty of the prosecution to prove its case against the accused beyond any reasonable doubts. In the present case, the charge against the accused is for the offence U/s 448 IPC which proves punishment for house trespass. House trespass is define in Section 442 IPC which reads as under:-
"W hoever commits criminal trespass by entering into or 8 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 trespassers body entering is sufficient to constitute house trespass."
Therefore, in view of the above said provision to constitute the offence of house trespass, the main ingredients is that the accused have committed offence of criminal trespass which is provided under Section 441 IPC as under :-
"S ection 441. Criminal trespass :- Whoever enters into or upon property in the possession of another with intends 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 therewith, intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, 9 is said to commit criminal trespass. "
The combined readings of the above said provisions reveals that essential ingredients to establish offence U/s 448 IPC are :
I) Accused enters into or upon any building, tent or vessel used as a human dwelling in the possession of another,
ii) he does so with intent,
a) to commit an offence, or
b) thereby to intimidate, insult or annoy such person.
12. As far as the first ingredients is concerned, it is must that the accused entered into or upon the house, building etc. of the complainant. The complainant in his complaint Ex. PW-2/A stated that accused trespassed into their house and thrown out their household articles as their daughter told them, who was present at the spot. During statement before the court, the complainant also gave the identical version when he was examined as PW-2. PW-3 also corroborated in material facts to the version of the complainant.
13. PW-4, who is most important witness as she is only the eye 10 witness of the case and daughter of the complainant, who was aged about 14 years when examined before the court. She also supported the prosecution version and gave an corroborative statement regarding the theft of entrance of accused into their house and then throwing of their articles outside the house. The fact that when complainant and his wife came back from the place of Peer Baba after the alleged incident, then the accused was present at the spot is also stated by all the material witnesses. PW-1 and PW-5 are formal witnesses as PW-1 registered the FIR and PW-5 is investigation officer, who have completed the procedural investigation. In the site plan Ex. PW-5/B, the point C is shown as the place in the street where the articles were stated to be thrown by the accused. This fact is also confirmed by all the witnesses. However, there are small discrepancies in the statement of witness regarding the exact time of incident, and regarding the specific description of the articles which were allegedly thrown out by the accused, but Court thinks that due to span of time, these discrepancies do not attract much importance when there is no contradiction regarding the material allegations.
14. It is to be established by the prosecution that the complainant 11 was in possession of the premises in question. As far as oral evidence is concerned, the witnesses of the prosecution have given corroborative statement that complainant was in possession of the said premises at the time of incident as a tenant. The fact that the complainant was residing as tenant is also admitted by the accused in her statement U/s 313 CrPC. The defence is also raised by the accused during the cross examination that the complainant filed the present false case against the accused to avoid the payment of rent. Ld. Counsel for the accused also referred copy of the order of Ld. ACJ/ARC, Dwarka dated 13.03.2009 in which also it is mentioned that the complainant was tenant at the premises in question from Feb, 2000 and eviction order was passed against him on 13.03.2009. These admitted facts can also be taken into consideration to corroborate the fact that complainant was in possession at the time of incident in the premises in question as stated by the complainant and other witnesses. Therefore, this fact is established that at the time of occurrence, the complainant was in possession of the said premises.
15. It is also settled law that the person whether he is a tenant or 12 otherwise in possession of the premises can not be evicted without following the due process of law. If a person having better title over the said premises then the possessor entrance thereon without following the due procedure established by law, then he will be liable for a penal offence.
16. Thereafter, it is also necessary to establish that the accused entered into the said premises with intent to commit an offence or to intimidate, insult or annoy the complainant as only entrance without any criminal intention is not sufficient to constitute the offence of criminal trespass. In the case in question, all the material witnesses stated in their corroborative statements that the accused entered into their premises with the intent to vacate the premises and she thrown out the household articles of the complainant and intimidated to vacate the premises immediately and thereby annoyed them. Although, as per the order dated 13.03.2009 of Ld. ACJ/ARC, Dwarka as referred by Ld. Counsel for the accused, accused succeeded to evict the complainant through Bailiff and in due course of law but at the time of incident i.e on 11.05.2000 accused 13 was not having lawful authority to trespass into the premises in question possessed by the complainant. Therefore, the second ingredient of the offence is also established.
17. Hence, keeping in view the above said discussion, Court comes at the conclusion that the prosecution successfully established its case against the accused beyond reasonable doubts. The accused Sunarpati Devi convicted in case FIR No. 457/2000 P.S. Dabri for the offence U/s 448 IPC.
Announced in the open court on this day of 5th July, 2011 (Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI 14 FIR NO: 457/2000 PS: Dabri U/s 448 IPC.
State V. Sunarpati 05.07.2011.
Present: APP for the State.
Accused on bail with counsel.
Arguments already heard.
Vide separate judgment pronounced and dictated in the open court, accused Sunarpati is convicted for the offence u/s 448 IPC.
Put up for consideration on quantum of sentence on 08.07.2011.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI