Delhi District Court
Fir No: 236/99 Ps: Najafgarh State vs . Mahabir Etc. on 16 March, 2013
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IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 236/99
PS:Najafgarh
U/s :448/34 IPC
State
Vs.
1). Mahavir Prasad, S/o Late Sh. Hardwari Lal
R/o 558, Shivaji Marg, Chara Mandi, Najafgarh, N. D 43.
2)Anil Jain, S/ Sh. Mahavir Prasad
R/o 558, Shivaj Marg, Chara Mandi, Najafgarh, N. D 43.
3).Ajay Jain, S/o Sh. Mahavir Prasad,
R/o 558, Shivaj Marg, Chara Mandi, Najafgarh, N. D 43.
4)Rajender Gautam, S/o Late Sh. Rati Ram,
R/o A1/228 Janakpuri, New Delhi.
.......... Accused persons
1. Sl. No. of the case. 1465/2/09
2. The date of offence 30.04.1999
3. The name of the complainant State
4. The name of the accused persons 1). Mahavir Prasad, S/o Late Sh.
Hardwari Lal,R/o 558, Shivaji Marg,
Chara Mandi, Najafgarh, N. D 43.
2)Anil Jain, S/ Sh. Mahavir Prasad
R/o 558, Shivaj Marg, Chara Mandi,
Najafgarh, N. D 43.
3).Ajay Jain, S/o Sh. Mahavir Prasad,
R/o 558, Shivaj Marg, Chara Mandi,
Najafgarh, N. D 43.
FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc.
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4)Rajender Gautam, S/o Late Sh. Rati
Ram, R/o A1/228 Janakpuri, New
Delhi.
5. The offence complained U/S 448/34 IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 23.02.2013
was reserved
8. The date of order 16.03.2013
9 . The final order Acquittal
JUDGMENT:
Present: Ld. APP for the state.
All accused with Ld. Counsel.
1. The case of the prosecution is that on 30.04.1999 at 3 am at plot of Mr. Madho Prasad near Mandi Village Maksoodabad Najafgarh within the jurisdiction of PS Najafgarh Mahavirpal, Ajay Jain, Anil Jain and Rajender Gautam ( hereinafter called accused persons) in furtherance of their common intention committed house trespass in the piece of land measuring 2866.6 square yards, situated in khasra no. 52, Village Maksoodabad and thereby all accused were booked under Section 448/34 IPC.
2. On appearance of the accused copies of documents were supplied to him. Notice for having committing offence punishable under sections 448/34 IPC was FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..3..
framed against them, to which all accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined five witnesses.
4. Statement of the accused persons were recorded under section 313Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused persons, to which accused persons denied all the incriminating circumstances and did not prefer to lead evidence in their defence and filed written submissions u/s 315 (5) Cr. P C.
5. PROSECUTION EVIDENCE:
PW1 Mr. Chand Ram deposed that he did not know accused persons and stated that he does not know anything about the case. Witness was cross examined by Ld. APP but nothing came out.
PW2 Mr. Shankar Yadav deposed that on 03.05.1999 he was working as labourer on daily wages at different place and he does not know who was the owner of plot where he was working on the day of incident. PW2 further deposed that he does not know the names of persons who was residing there and stated that police did not record his statement. Witness was cross examined by Ld. APP but nothing came out.
PW3 Mr. Prakash deposed that in the year 1999 he was residing in Village FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..4..
Maksoodabad Roshanpura in plot of Mr. Madhao Prashad and he was working as security guard. He used to guard buffalows, cow and the said plot and his cousine brother Mr. Madhav Rao was also residing with him. PW3 further deposed that on the fourth month of year 1999 at about 2.30 am he, Madhav Rao, Nanne and Bablu Lal were sleeping and 3040 persons came at the plot and they surrounded the plot. PW3 further deposed that they asked to open the gate and under fear of beaten up he opened the gate and all those persons entered the plot. Some of them broken his telephone and took away two cows and two buffalows along with them. PW3 identified Mahavir Jain, Ajay and Rajender in the court. PW3 further deposed that cow and buffalows were taken by other persons who accompanied accused persons and the accused persons put katta which was having seeds in the room and accused persons directed to them to come out. At about 6.30 7 pm he made a call to police and police reached at the spot and police recorded his statement. PW3 proved his statement ( Ex. PW3/A). PW3 further deposed that police did not seize cows and bufflaows in his presence. PW3 further deposed that cow, buffalows and other articles were seized by police ( Ex. PW3/A). PW3 was cross examined on the identification of Mr. Anil Jain but PW3 failed to identify Mr. Anil Jain. PW3 during his cross examination submitted that he was working on disputed land 34 years prior to incident for owner Mr. Madhav Prasad and he never met Mr. Madhao Prasad and he was engaged by one Mr. Vishal Sahib. PW3 during his cross FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..5..
examination submitted that accused persons entered into disputed land by jumping the wall and he was not beaten by accused persons.
PW4 Inspector Rajeev Gunwant deposed that on 30.04.1999 he received a PCR call vide DD no. 12 A regarding quarrel and he along with Constable Naresh went to Khasra no. 52 Maksoodabad where complainant Prakash met him and he recorded his statement. PW4 further deposed that he prepred rukka and got FIR registered. He also prepared site plan at the instance of complainant ( Ex. PW4/B), thereafter, he seized polythene bag of seeds and articles ( Ex. PW3/B). PW4 further deposed that he recorded statement of one witness and Mr. Basu handed over some documents to him. PW4 further deposed that he searched the accused persons but no one was found. PW4 further deposed that on 04.07.1999 complainant came to Police Station and informed that he identified his cow and buffalows at Sai Baba Enclave Nangli Dairy. PW4 further deposed that he went there along with complainant and complainant identified his cow and buffalows and they were seized (Ex. PW3/B). PW4 during his cross examination submitted that he received information regarding quarrel in early morning and he reached the spot at about 5 am and complainant made his complaint by name against accused persons and stated that incident occurred on 30.04.1999 but FIR was registered on 03.05.1999 and he conducted local inquiry on the direction of senior officers and case was registered on 03.05.1999. PW4 stated that the polythene of seeds which was seized by police belongs to accused Mahavir Jain.
FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc.
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PW4 further deposed that he does not have any authentic knowledge but he heard there is dispute between the parties and he did not inquire about this aspect.
PW5 SI Vishram proved arrest and personal search of all accused persons.
6. ARGUMENTS:
Ld. APP for the state submitted that it has been proved beyond reasonable doubt by the deposition of prosecution witnesses that all the accused persons in furtherance of their common intention entered the house of one Mr. Madhav Prasad in the mid night, thereby, all the accused persons have committed house trespass in the house of Mr. Madhav Prasad and all accused persons entered into the property of Mr. Madhav Prasad in order to grab the property which was in possession of Mr. Madahv Prasad. Therefore, Ld. APP for state prays for conviction of all accused persons. Ld. Defence Counsel for accused persons on the other hand submitted that prosecution has miserably failed to prove its case as two witnesses of the prosecution PW1and PW2 has turned hostile. Moreover, sole eye witness of the case as alleged by prosecution, who supported the version of prosecution as per story of prosecution (PW3) also has failed to identify accused Anil Jain. Ld. Defence Counsel further argued that:
a) as per deposition of PW3 Mr. Madhav Prasd is owner of plot and was FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..7..
having possession of plot but no documents has been filed by prosecution to prove that Mr. Madhav Prasd was having possession of plot or is owner of plot in question.
b) In addition to these, it has been alleged by prosecution witness that telephone was broken at the time of incident, therefore, it means that telephone was installed in the said room as per the story of prosecution but no bill has been furnished by prosecution to support that Mr. Madhav Prasad was having possession of plot and said telephone was in name of Mr. Madhao Prasad.
c) Though it is the story of prosecution that cow and buffalow were also stolen but nothing has been brought on record to show that to whom these cows an buffalows belongs. Moreover, PW3 in his deposition stated that cows and buffalows were not seized in his presence, means seizure memo was prepared in Police Station.
d) The whole story of prosecution relies upon the version that plot belongs to Mr. Madhav Prasad but Madhav Prasad never appeared in the court to depose that plot belongs to him. Moreover, no documents has been filed by prosecution regarding the fact that Mr. Madhav Prasad was having possession of plot at that time. PW4has admitted that there was dispute between both the parties regarding plot but he did not investigate this aspect, moreover, accused persons u/s 313 (5) Cr. P C has filed written submissions that accused Mr. Mahavir Prasad Jain is the owner of property in question and from year 1970 onwards Mr. M P FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..8..
Jain is in possession of that land and also brought house tax up to 1982 of the said land in question and the injunction was also granted in their favour in 1994 from the court of Sh. R S Mehla, Tis Hazari Courts and same was also upheld in appeal also. Mr. M P Jain (accused) also filed police complaint against Mr. Mahdao Prasad and injunction order was passed by Hon'ble High Court of Delhi th on 19 Dec. 1999 in suit no. of 2836/1998 against Mr. Madhav Prasad in the suit filed by Mr. Himchand Jain in which interim relief was granted in favour of plaintifff and in the same suit except defendant ( accused) all the other four defendants Mr. Madhav Prasad, Sh. Bal Kishan, Sh. Deepak Kumar Shukla and Sh. Inderjeet were restrained from taking possession of plot.
Now, I am dealing with contentions raised by ld. Defence Counsel one by one: Contention A: PW4 in his deposition stated that he met Mr. Madhav Prasad regarding case but it is on record that Mr. Madhav Prasad never appeared in the court court nor sited as prosecution witness in the case. It is also admitted fact that no documents regarding possession of plot has been filed by prosecution regarding ownership. Moreover, nothing has been filed on record to show that Mr. Madhav Prasad was having possession of plot in question. This fact becomes more relevant when two prosecution witnesses PW1 and PW2 has turned hostile and sole supporting witness PW3 Mr. Prakash has deposed that he was working as security guard at the said plot but during his cross examination PW3 has stated FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..9..
that " I have never met with Mr. Madhav Prasad, I was engaged by one Mr. Vishal Sahib". Means PW3 is also not having any direct knowledge regarding ownership of plot rather he was engaged by one Mr. Vishal Sahib. Therefore, evidence of PW3 regarding possession of plot belongs to Mr. Madhav Prasad is hearsay evidence and the same is not relevant under Indian Evidence Act. Hence, this contention of Ld. Defence Counsel is having merit. Contention B: PW3 has deposed that telephone installed at premises was broken during the shuffle with accused persons and him but no telephone bill has been filed by prosecution to show that telephone was installed at the said premises neither broken telephone was made case property in the matter. Hence, in the absence of telephone bill and non production of telephone, this contention of Ld. Defence Counsel cannot be ignored in the light of given circumstances. Contention C: PW4 IO of the case Inspector Rajeev Gunwant during his cross examination stated that " I have no authentic knowledge but I heard somewhere that there is dispute between both the parties and I also did not enquire on this aspect". This statement of investigating officer of the case shows despite having knowledge of fact that land is dispute land and civil litigation is going on between the parties, IO did not prefer to investigate the matter in this respect rather IO filed challan that without any document, concrete evidence to shows that plot belongs FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..10..
to Mr. Madhav Prasad. Hence, this contention of Ld. Defence Counsel is having merit.
7. Discussion: After dealing with contentions raised by Ld. Defence Counsel, I am of the opinion that : No documents regarding possession of plot has been field by prosecution. Moreover, though PW3 and PW4 stated that plot belongs to Mr. Madhav Prasad but Mr. Madhav Prasad never appeared in court to depose that plot belongs to him. Moreover, no evidence has been brought by prosecution that Mr. Madhav Prasad was having possession of plot. In addition to these PW4 deposed that a dispute was pending between the parties it is a very important fact because IO did not bother to verify whether Mr. Madhav Prasad was actually having the possession of said plot or not and at same point of time accused persons u/s 313(5) Cr. P C field order of Hon'ble High Court of Delhi showing injunction order against Mr. Madhav Prasad. Therefore, this fact shows that there was civil litigation going on between the parties at the point of time when the alleged incident of house trespass as alleged by prosecution has occurred and no document has been filed by prosecution to show that Mr. Madhav Prasad is the owner of said plot or any of the civil court has decided that Mr. Madhav Prasad is the owner of said plot or in the civil litigation between the parties Mr. Madhav Prasad has won case against the accused persons regarding plot. Therefore, in FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..11..
the absence of evidence regarding possession of said plot it can not be said that accused persons committed house trespass in the house of Mr. Madhav Prasad because as per definition of house trespass 442IPC. Section 442 is subjected to section 441 IPC which defines criminal trespass.
442. House trespass:Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit " housetrespass".
441 Criminal trespass: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "
criminal trespass".
Therefore, as per definition of criminal trespass: Firstly it has to be proved that a person entered into the property in the possession of another. Therefore, this first ingredient of section has not been proved by prosecution and it has not been proved beyond reasonable doubt that that Mr. Madhav Prasad was having possession of plot in question. Accordingly, prosecution has failed to prove its case beyond reasonable doubt.
8. FINAL VERDICT: FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc. ..12..
Keeping in view the discussion laid above, Prosecution has failed to prove its case beyond reasonable doubt which is duty of prosecution. Hence, all accused persons are acquitted of the offence u/s 448/34 IPC.
Announced in the open court
on 16.03.2013 (Sudhir Kumar Sirohi)
M M02/Dwarka Court,
New Delhi, 16.03.2013
FIR NO: 236/99 PS: Najafgarh State Vs. Mahabir etc.