Delhi District Court
State vs . Sanjeev on 18 November, 2011
IN THE COURT OF MS. BHAWANI SHARMA, MM(NE)05
KARKARDOOMA COURTS DELHI.
State Vs. Sanjeev
FIR No. 416/03
U/s 456 IPC
PS Bhajanpura
J U D GE M E N T
b)Date of commission of offence : 21.11.03
a)Serial No of the case : 1240/03
c)Name of the complainant : Ashok Kumar, S/o Gopi Chand, R/o
C84/4, Gali No.8, Mohan Puri, Delhi
d)Name parentage and : Sanjeev, S/o Kapil Dev, R/o 248, Gali
No.11, Ramesh Park, Laxmi Nagar,
Delhi.
e)Offence complaint of : 456 IPC
f)Plea of accused : Pleaded not guilty
g)Final Order : Acquitted
h)Date on which order was reserved : 18.11.10
i)Date of order : 18.11.10
BRIEF FACTS AND REASONS FOR DECISION.
1. The accused was sent up to face the trial u/s 456 IPC. Brief facts of this case are that on 21.11.03 at about 2.30 AM at H.No. C84/4, Gali No.8, Mohanpuri, Maujpur, Delhi within the jurisdiction of PS Bhajanpura, Delhi the accused had committed house trespass by night, in order to commit the offence punishable with imprisonment. After investigation the chargesheet was filed and cognizance was taken and compliance u/s 207 Cr.PC was made.
2. After hearing from both the sides charges framed on 10.03.04 U/s 456 IPC which were explained and read over to the accused to which he pleaded not guilty and claimed FIR No. 416/03 1/6 trial.
3. In order to prove its case prosecution examined following PWs: PW1 Ashok Kumar PW2 Smt. Shashi PW3 Ct. Ravinder Singh PW4 ASI Ram Gopal PW5 Devesh Kumar PW6 Hc. Rishi Pal Singh PW1 Ashok Kumar is the complainant of the present case and narrated the facts to the IO concerned. IO recorded his statement Ex.PW1/A, site plan was prepared which is Ex.PW1/B. Accused was arrested and personal search was conducted vide Ex.PW1/C and PW1/D. PW2 Smt. Shashi is the wife of the complainant/PW1 and deposed in her cross examination that the accused had been frequently coming as tenant in her house.
PW3 Ct. Ravinder stated that on 21.11.03 he was posted at PS as Ct. He proved the arrest and personal search of the accused vide Ex.PW1/C and PW1/D which bears his signature at pt. B. PW4 ASI Ram Gopal stated that on 21.11.03 he was posted at PS as D.O from 12 night to 8 am. He registered the FIR of this case Ex.PW4/A and made endorsement on the rukka Ex.PW4/B which bears his signature at pt. A. PW5 Devesh Kumar supported the case of prosecution, however, his testimony becomes heresay as he himself did not witness the incident. He gathered the information from one Ashok & identified the accused as regular tenant.
PW6 Hc. Rishi Pal stated that on 21.11.03 he was posted at PS Bhajanpura as Hc. He prepared rukka Ex.PW1/A, site plan Ex.PW1/B, arrest memo and search memo already Ex.PW1/C and PW1/D. FIR No. 416/03 2/6
4. In his statement recorded under Section 313 Cr.P.C, accused denied all the incriminating circumstances appearing in evidence against him and claimed false implication. However, accused led no evidence in his defence.
Arguments heard on behalf of both the parties and file perused carefully.
5. In the present case prosecution is required to prove that:
Whether the accused had committed house trespass by night with a view to commit an offence punishable with imprisonment. For this it is necessary to prove house trespass and for proving house trespass the prosecution is required to prove criminal trespass U/s 441 IPC wherein the aim or dominant intention of the accused for committing an offence or intimidation, insult or annoyance must be proved.
6. The ingredients which are required to be proved by the prosecution are that the accused committed house trespass and that he committed criminal trespass for purpose of/with the intention to commit an offence or to intimidate, insult or to annoy the complainant. While testimony of PW1 Ashok Kumar was recorded and it has come into the light that the accused was the tenant in the house of the complainant 34 years ago and he was very much frequently coming to the house of the land lord which belong to the father of the complainant. The accused was tenant in the 2 nd floor of the house of the complainant.
7. The licensee occupying the property on the unilateral revocation of licence by the licensor is not guilty or criminal trespass as it could not be inferred that after revocation of licence, the licensee hade any intention to cause annoyance, intimidation or insult to the licensor - Somnath Paul V Ram Bharose 1991 Cr LJ 2499 (AII) and the unauthorised entry into or upon the property in the possession of another or unlawfully remaining thereafter lawful entry can answer the definition of criminal trespass if, an only if, such unlawful entry or unlawful remaining is with the intent to commit an offence orto FIR No. 416/03 3/6 intimidate, insult or annoy the person in possession of the property. Therefore, unless any of the ingredients referred in section 441 is proved, no offence of criminal trespass can be said to have been committed. Such an intention has to be gathered from the facts and circumstances of a given case Rajinder v State of Haryana (1995) 5 SCC 187: 1995 SCC (Cri) 852.
8. PW2 has also been testified during her examination that 4 months back before the incident occurred the accused was living as tenant in their house and he was living on the Ground floor, however, witness failed to tell the exact amount of the rent. The details of the tenancy were not kept by the witnesses, however, both the eyewitnesses/material witnesses admitted that the accused had in the relation of land lord/tenant with their parents. The presence of a person in such a condition would not be established proper/fit so as to punish him U/s 456 IPC. Moreover, the presence of the accused was never concealed by him. The standard of proof in criminal case are as in "State of U.P V. M.k Anthony, (SC)" that " While appreciating the evidence of a witness, the approach must be whether the evidence of the witness rea as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinies the evidence more particularly keeping in view that deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial mattes not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the I.O not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. It the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may FIR No. 416/03 4/6 differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
In view of the above said discussions prosecution failed to prove the charges beyond reasonable doubts hence accused Sanjeev is acquitted of the charges U/s 456 IPC. Surety bond is cancelled. Documents if any be returned, endorsement if any, be cancelled. Compliance u/s 437 A done. Fresh B/B , S/B taken. File be consigned to record room.
Announced in open court on 18.11.10 (Bhawani Sharma) Metropolitan Magistrate/NE05 Karkardooma Courts/Delhi FIR No. 416/03 5/6 State Vs. Sanjeev FIR No. 416/03 U/s 456 IPC PS Bhajanpura 18.11.10 Pr: Ld. APP for State.
Accused in person.
Matter is fixed for orders today. In view of the judgment announced in the open court, accused Sanjeev is acquitted of the charges U/s 456 IPC. Bail bond canceled. Surety discharged. Endorsement if any be canceled.
File be consigned to record room.
(Bhawani Sharma) MM(NE)05/KKD/18.11.10 FIR No. 416/03 6/6 FIR No. 416/03 7/6