Delhi District Court
State vs . Ashifa Begum & Ors. on 4 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. ASHIFA BEGUM & ORS.
FIR NUMBER: 241/2015
UNDER SECTION: 448/380/34 IPC
POLICE STATION: JAMIA NAGAR
A. CNR No. of the Case : DLSE020011782018
B. Date of Institution : 16.01.2018
C. Date of Commission of : 27.11.2014
Offence
D. Name of the Complainant : Ms. Sehba Fatima, D/o Sh. Mubarak
Mazdoor, R/o H. No. 891, Gali No.
22, Zakir Nagar, New Delhi
E. Name of the Accused, his : 1) Ms. Ashifa Begum, W/o Mohd.
Parentage & Addresses Furkan, R/o H. No. 891, Gali No. 22,
Zakir Nagar, New Delhi
2) Mr. Mohd. Imran, S/o Sh. Mohd
Furkan, R/o H. No. 891, Gali No. 22,
Zakir Nagar, New Delhi
3) Mr. Mohd. Furkan, S/o Sh. Mohd.
Muslim, R/o H. No. 891, Gali No. 22,
Zakir Nagar, New Delhi
4) Shama Parveen, D/o Sh. Mohd.
Furkan, R/o H. No. 891, Gali No. 22,
Zakir Nagar, New Delhi
5) Shaheen, W/o Sh. Mohd. Imran,
R/o H. No. 891, Gali No. 22, Zakir
Nagar, New Delhi
6) Mr. Irfan, S/o Sh. Mohd. Furkan,
R/o H. No. 891, Gali No. 22, Zakir
Nagar, New Delhi
F. Offence complained of : 448/380/34 IPC
G. Plea of the Accused : Pleaded not guilty and claimed trial
H. Judgment reserved on : 27.06.2023
I. Date of Judgment : 02.08.2023
J. Final Order : Convicted
FIR No. 241/2015 State Vs. Ashifa Begum Page No.1 Of 14
ACCUSED DETAILS:
Rank of 1 2 3 4 5 6
the
accused
Name of Ashifa Imran Mohd. Shama Shaheen Irfan
the Begum Furkan Parveen (declared
accused (abated absconde
vide r vide
order order
dated dated
11.12.202 18.12.201
2) 8)
Date of Without Without Without Without Without Without
Arrest Arrest Arrest Arrest Arrest Arrest Arrest
Date of - - -- --
release
on Bail
Offence 448/380/3 448/380/3 448/380/3 448/380/3 448/380/3 --
charged 4 IPC 4 IPC 4 IPC 4 IPC 4 IPC
with
Whether
Acquitte
d/
convicte
d
Sentence --
Imposed
Period of --
detention
undergon
e during
trial (for
section
428
CrPC)
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 Ms. Sehba Fatima
2 Inspector Uday Kumar
3 Inspector Anand Prakash
4 SI Birender Singh
5 SI Jitendra Kumar
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION): Sr. No. Description of documents Exh. No. FIR No. 241/2015 State Vs. Ashifa Begum Page No.2 Of 14 1 Copy of FIR No. 241/2015 Ex. A-1
2 Complaint Ex. PW1/A 3 Memo Ex. PW3/A 4 Site Plan Ex. PW3/B 5 Notice to accused Asifa Begum Ex. PW4/A 6 Notice to accused Irfan Ex. PW4/B 7 Notice to accused Mohd. Imran Ex. PW4/C 8 Notice to accused Mohd. Furkan Ex. PW4/D 9 Notice to accused Sama Parveen Ex. PW4/E 10 Notice to accused Shaheen Ex. PW4/F 11 Disclosure statement Asifa Begum Ex. PW4/G 12 Disclosure statement Irfan Ex. PW4/H 13 Disclosure statement Mohd. Imran Ex. PW4/I 14 Disclosure statement Mohd. Furkan Ex. PW4/J 15 Disclosure statement Sama Parveen Ex. PW4/K 16 Disclosure statement Shaheen Ex. PW4/L DEFENCE WITNESS: None LIST OF DOCUMENTS (PROVED BY DEFENCE): None Factual Background:
1. Briefly stated, the case of the prosecution against the accused persons is that complainant Sehba Fatma Mazboor was tenant of property bearing no H. No. 891, 3rd Floor, Gali No. 22, Zakir Nagar, Near Moti Masjid owned by accused Asfia Begum who has given the said property on rent to the complainant on 08.11.2013 for monthly rent of Rs. Rs 2000/- for a period of two-
three years. On 27.10.2014, complainant went to her home town Allahabad after paying her rent and when she returned on 27.11.2014 at about 08.00 PM, she found that accused Kaifi and his family has illegally occupied her rented house and displaced/ stolen her household articles. She has given the list of articles received from the aforesaid property. On the basis of the complaint, the present FIR was registered. Upon completion of investigation, charge-sheet under section 506/448/380/34 IPC was filed and the accused persons Ashifa Begum, Irfan, Imran, Furqan, Shama and Shaheen were sent for trial.
FIR No. 241/2015 State Vs. Ashifa Begum Page No.3 Of 14 Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 16.01.2018 and issued process against the accused persons. Pursuant to the appearance of the accused, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 18.12.2018 charge under Section under section 448/380/34 IPC was ordered to be framed against the accused persons Ashifa Begum, Imran, Furkan, Shama Parveen and Shaheen. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE'). During court proceedings, Irfan has declared absconder vide order dated 18.12.18 and the case against Furqan was abated vide order date 11.12.2020.
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined five witnesses namely Sehba Fatima ('PW1'), Inspector Uday Kumar('PW2'), Inspector Anand Prakash ('PW3'), SI Birender Singh ('PW4'), and SI Jitendra Kumar ('PW5').
5. PW1/Sehba Fatima deposed that she was residing as tenant at the house of accused Ashifa Begum in November, 2013 at house no. 891, Zakir Nagar, Jamia Nagar, Near Moti Masjid, New Delhi. No written lease deed was executed in this regard.
However, within 3-4 months, accused Ashifa Begum and her family, especially her daughter Shama started pressurizing her/witness to vacate the said property on the ground that they wanted to sell the same to some other person. On 27.10.2014, FIR No. 241/2015 State Vs. Ashifa Begum Page No.4 Of 14 PW1 went to her native place at Allahabad. She had told the accused that she will vacate their house upon her return. She had paid rent up to date to the accused. She came back from Allahabad on 27.11.2014. She deposed that when she went to the said house, she saw that one iron gate had been installed there. Accused did not let her enter the said house. She was surrounded by accused, her family and their neighbours and they started fighting with her. PW1 deposed that they all falsely stated that she had taken all her belonging and vacated the said house. Thereafter, she called the police at 100 number. She called PS Jamia Nagar, New Delhi and beat officer came at the spot. She went to the PS on the next day and gave her complaint Ex.PW 1/A bearing her signatures at point A. Police did not prepare site plan at her instance. Witness has correctly identified accused Ashifa Begum, Imran, Shama Praveen and Shaheen.
6. During cross examination, PW1 denied the suggestion that she was not tortured and harassed by the accused persons. She further denied the suggestion that she has filed the present false complaint as she did not want to vacate the property in question. She denied the suggestion that she was deposing falsely.
7. PW2/ Inspector Uday Kumar deposed that on 05.02.2016, he was posted as SI at PS Jamia Nagar, New Delhi. On that day, further investigation was marked to him. He had gone through the file, meanwhile he was nominated for TOT Course, Bhopal. After he returned from the course, he was transferred to South-West District from PS Jamia Nagar, New Delhi. He has handed over the case file MHC (R).
8. During cross examination, PW2 deposed that file remained with him for about 2 months. He did not conduct any investigation in the present case except the above said.
FIR No. 241/2015 State Vs. Ashifa Begum Page No.5 Of 14
9. PW3/ Insp. Anand Prakash deposed that on 27.02.2015, he was posted in PS Jamia Nagar as SI. On that day he received case file of the present case on the direction of SHO. As the complaint was endorsed by SHO vide memo exhibit PW-3/A bearing the signature at point A of SHO Ravinder Kumar. He went to the spot and prepared site plan at the instance of complainant and the same is proved as PW-3/B bearing his signature at point A. He recorded supplementary statement of complainant. Thereafter, he was transferred to another PS. He submitted the case file to MHCR PS Jamia Nagar.
10. During cross examination, PW3 deposed that he does not remember exact number of floors of building however he had visited 3rd floor. He can't tell the number of rooms on 3 rd floor. He denied the suggestion that he did not visit the spot. He further denied the suggestion that all the proceedings were conducted while sitting at PS. He denied that he was deposing falsely.
11. PW4/ SI Birender Singh deposed that on 14.01.17 he was posted in PS. Jamia Nagar as ASI. On that day the case file of the present case was handover to him for further investigation. He inquired the above accused person and went to the address of accused persons i.e House No. 891 Gali No 22 Zakir Nagar and met the accused Asifa Begum, Irfan, Mohd. Imran, Mohd. Furkan, Sama Parveen, Shaheen and interrogated them and give notice u/s 41A Cr.PC to them. Notice to accused persons are proved as Ex. PW-4/A, PW-4/B, PW-4/C, PW-4/D, PW-4/E, PW- 4/F respectively, bearing his signature at point A each. He also recorded disclosure statement of accused persons Asifa Begum, Irfan, Mohd. Imran, Mohd. Furkan, Sama Parveen, Shaheen vide memo Ex. PW-4/G, PW-4/H, PW-4/I, PW-4/J, PW-4/K PW-4/L , respectively, bearing his signature at point A each. He recorded of statement of complainant and prepared the challan. He FIR No. 241/2015 State Vs. Ashifa Begum Page No.6 Of 14 deposed that he could identify the accused persons, if shown to him. Witness has correctly identified the accused.
12. During cross examination, PW4 deposed that it is correct that the complainant in her statement vide dated 22.09.2017 stated that accused persons have kept her articles outside the rented premises/room. He deposed that he has not collected/asked for bills of any alleged stolen articles. He has not gone to the jewellery store/Tanishk show room to collect or inquired about bills of the alleged stolen articles. He has not recorded the statement of neighbour at the alleged place of the incident. He has not collected or asked for rent agreement for the rented premises/spot. He deposed that he could not tell the exact number of floors of the building where the spot is situated. He further deposed that he could not tell which shop is located just in front of the building/spot. He could not tell where the room/spot is located in the building, even he cannot tell whether the room/spot was at the back side of the building or in the front side of the building. He denied the suggestion that he had not conducted proper and fair investigation in the present case. He further denied the suggestion that he had prepared all the document in the PS only. He denied the suggestion that he was deposing falsely.
13. PW5/ SI Jitendra Kumar deposed that on 19.06.2015, he was posted at PS-Jamia Nagar as SI. On that day case file of the present case was marked to him for further investigation. File remained with him since the aforesaid time and on 19.11.2015, he was transferred from PS-Jamia Nagar. He handed over the case file of the present case file to MHC(M), PS-Jamia Nagar. Witness was not cross examined by defence despite opportunity given.
Admission u/s 294 CrPC FIR No. 241/2015 State Vs. Ashifa Begum Page No.7 Of 14
14. In terms of section 294 CrPC, accused has admitted copy of FIR 241/15, Ex. A-1.
Statement of the Accused:
15. Accordingly, vide order dated 10.03.2023, PE was closed. Thereafter, the statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded innocence and claimed to have been falsely implicated by the Police. All the accused persons have stated that complainant was tenant of accused Ashifa Begum. The complainant was asked to vacate the premises. She has vacated the premises but locked the flat. Despite repeated requests, she has not opened the lock. They did not opt to lead defence evidence.
Final Arguments:
16. Ld. APP has re-iterated the contents of the chargesheet. Ld. APP has submitted that the case is proved beyond reasonable doubt. It is also submitted that such offences are grave offences and the accused persons be convicted of the offence charged u/s 448/380/34 of the IPC.
17. Per Contra, Ld. Counsel for defence has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt. He has further submitted that FIR was registered after substantial delay. Complaint is given on 27.11.2014 but FIR was registered on 27.02.2015 with the endorsement that information received to PS on 27.02.2015. Therefore, all the accused persons are liable to be acquitted of the alleged offence Discussion and Analysis:
18. All the accused persons were charged for the offence under section 448/380/34 IPC. Before going into the merits of this case it is required to go through the settled principle for these offences.
FIR No. 241/2015 State Vs. Ashifa Begum Page No.8 Of 14
19. Section 448 IPC provides punishment for house-trespass which is defined under section 442 of the IPC which states that "whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as human dwelling or any building used as a place for worship, or as a place for the custody of property". Meaning thereby to constitute house trespass, it must be a criminal trespass. Criminal trespass is defined under Section 441 of the IPC. Basic ingredient to satisfy criminal trespass is (i) entry into or upon property in the possession of another, (ii) if such entry is lawful then unlawfully remaining upon such property, (iii) such entry or unlawful remaining must be with intent (a) to commit an offence; or (b) to intimidate, insult or annoy the person in possession.
20. In order to constitute offence under Section 441 IPC, the accused must enter into 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. It is clear from the wording of the section that there can be no criminal trespass unless the "intent" specified in the section is present. The phrase "any person in possession of such property" is also to be remembered. The intent to annoy and intimidate must be not with respect to any and every person connected with the property but with respect to any person in actual possession of such property.
A person in constructive possession is not contemplated by the section. It is aimed to protect possession and not the ownership. Mere entry upon another's land, under however preposterous a claim of right or even without any claim of right, is no offence unless this entry is accompanied by one of the specific intents provided for in Section 441 IPC. In Motilal v. Emperor reported as AIR 1925 All. 540, "Indeed in the ordinary case FIR No. 241/2015 State Vs. Ashifa Begum Page No.9 Of 14 where a man steals into a house by night to carry on a secret intrigue with, say, a widowed woman of age, he must be well aware that his conduct would cause great annoyance to the other members of her family who may at the time be within the house".
21. The presence of such criminal intent may be manifested by the act or may be inferred from other circumstances. But in either case it must be an intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. In short, house trespass means criminal trespass in respect of a house.
22. In State (Delhi Administration) V. Mahinder Singh reported as 2006 SCC OnLine Del 1437, hon'ble Delhi High Court observed that;
On a plain reading of the penal provisions contained in Section 441 of the Code referred above, it is crystal clear that before a person can be convicted for an offence of criminal house trespass, the prosecution must prove that the house alleged to have been trespassed by the accused was in possession of the complainant/victim of the incident. It is also observed that for the offences defined and made punishable under the Indian Penal Code, it is the actual physical possession which is to be considered. The theory of constructive possession is foreign for offence of criminal house trespass as defined in the I.P.C.
23. Section 380 IPC relates to an aggravated form theft that is, theft in a dwelling house. In order to constitute offence under section 379, theft, the ingredients are (a) the subject matter must be moveable property, (b) it must be possession of any person,
(c) the accused moved it, (d) he did so without the consent of the person in possession, (e) he did so intend to take it out of his possession and (f) he did so dishonestly. If the offence of theft is FIR No. 241/2015 State Vs. Ashifa Begum Page No.10 Of 14 done in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for custody of property, it becomes offence under section 380 of the IPC.
24. Section 34 IPC only a rule of evidence and doesn't create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. Common intension requires a prior consent or a pre-planning. It is difficult, if not impossible, to procure direct evidence of such intension. In most cases it has to be inferred from the acts or conduct of the accused and such other relevant circumstances. Mere accompanying cannot infer common intension.
25. Coming to the merits of this case, there is no dispute that complainant was tenant and accused Ashifa Begum was the owner/landlord of the property bearing no H. No. 891, 3 rd Floor, Gali No. 22, Zakir Nagar, Near Moti Masjid, Jamia Nagar, at the time of alleged incident. Complainant has proved her complaint Ex. PW1/A and accused persons have not cross examined the complainant on any material particulars. Only three general and vague suggestions were put to the complainant, who has denied the same. It is well settled that if the opponent asks no question to the witness produced by the prosecution, then it must be taken that the version of the said witness is accepted by them. (AEG Carapiet v. AY Derderian repoted as AIR 1961 Cal 359; Ashis Sen & Ors. v. Arun Kumar Bose & Ors. Reported as 2006 SC Online Cal. 131; Ravinder Singh v. State (NCT of Delhi) reported as 197 (2013) DLT 99 (DB) and Vipin Kumar Saini v. State reported as 257 (2019) DLT 772 (DB)).
26. Complainant has also narrated in her complaint previous harassment by all the accused persons of this case and when she came back on 27.11.2014 at property bearing no H. No. 891, 3 rd FIR No. 241/2015 State Vs. Ashifa Begum Page No.11 Of 14 Floor, Gali No. 22, Zakir Nagar, Near Moti Masjid, Jamia Nagar, Delhi, she has found all her household articles were not there and the said property was occupied by all the accused persons. She has further narrated in her complaint that her household articles were displaced while breaking her lock. This fact is further substantiated by the statement of all the accused recorded under section 313 of the CrPC. It is stated by all the accused that, "complainant was tenant of accused Ashifa Begum. The complainant was asked to vacate the premises. She has vacated the premises but locked the flat. Despite repeated requests, she has not opened the lock".
27. Further, since complainant was tenant of property bearing no. H. No. 891, 3rd Floor, Gali No. 22, Zakir Nagar, Near Moti Masjid, Jamia Nagar, Delhi, she was in possession the said property. In above circumstances, the burden was on the accused to prove the fact that at the time of entering into the said property, the same was deserted and unoccupied. Accused persons have not proved the fact that complainant had vacated the tenanted premise and at the time of breaking the lock, no household articles were in the tenanted premises. Since accused persons have broken the lock in furtherance of their common intension, burden comes on them to prove that the tenanted premises was vacant and no household articles was lying there. It is the situation of special knowledge of the accused persons in view of section 106 of the Indian Evidence Act. Merely because complainant has not given any documents or IO has not collected receipts of the household articles, is not sufficient to absolve the accused. Here, accused persons have failed to discharge their burden under section 106 of the Indian Evidence Act. Further, during recording of statement of accused all the accused has stated that complainant had vacated the said premises, again FIR No. 241/2015 State Vs. Ashifa Begum Page No.12 Of 14 burden on accused to prove the said fact. Accused persons have not lead defence evidence on said aspect and failed to discharge their burden.
28. In view of above discussion, it is proved that all the accused persons had house trespassed the tenanted premises in furtherance of their common intension to commit theft from the dwelling house and to annoy the complainant. Complainant was in actual possession of the property. She has paid the rent upto 27.10.2014 and went to her home town and when she came back, she found her household articles were displaced and the tenanted premise was occupied by all the accused persons. It is settled principle that in order to constitute offence under Section 441 IPC, the accused must enter into 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. Displacement of household articles amounts to theft from dwelling house.
29. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab FIR No. 241/2015 State Vs. Ashifa Begum Page No.13 Of 14 reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute.
30. Another argument raised by Ld. Counsel for the accused that FIR in the instant case was registered after long time. Complaint was given on 27.11.2014 and FIR was registered on 27.02.2015. Accordingly, case of the prosecution cannot be believed.
31. In State of Punjab v. Ramdev Singh reported as AIR 2004 SC 1290, Hon'ble Supreme Court has held that, "...the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version".
32. In present case, complainant has given present complaint on 27.11.2014 vide DD No. 35A, dated 27.11.2014. This fact is written at the top of document Ex. PW1/A. This document is not disputed by the accused persons. There is no delay in filing complaint. On perusal of Ex. PW1/A, it is observed that there is also an entry DD No. 31A at 3:25PM, dated 27.02.2015, written FIR No. 241/2015 State Vs. Ashifa Begum Page No.14 Of 14 at the foot of the document which substantiates the fact that copy of this complaint was again given to PS on 27.02.2015 and it seems this is the reason, it is written on FIR that complaint was received on 27.02.2015. Ex. PW1/A is a photocopy of original receiving of DD No. 35A, dated 27.11.14. Since, complaint was given on next day of the arrival of the complainant at tenanted premise, the possibility of embellishment in prosecution version on account of such delay is nowhere. Police has registered the FIR on the same complaint. Therefore, delay in registration of FIR in present case is not fatal for prosecution.
33. Therefore, prosecution has successfully proved its case beyond reasonable doubt.
Decision:
34. Accordingly, accused Ashifa Begum, Imran, Shama Parveen and Shaheen held guilty and convicted for the offence punishable under Section 380/448/34 of IPC.
Announced in open (Abhitesh Kumar)
Court today i.e on 04.08.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains Fifteen pages (15) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 04.08.2023 FIR No. 241/2015 State Vs. Ashifa Begum Page No.15 Of 14