Delhi District Court
State vs . Brahm Dutt Tiwari And Anr. on 31 October, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 413/01
PS : Kalyan Puri
u/S : 452/448/342/506/34 IPC
State vs. Brahm Dutt Tiwari and Anr.
JUDGMENT
A Unique ID No. of the New No. 2682/16
case
B Name of the Raj Kumar Singh s/o Late Sh. Ram
complainant Shringar Singh r/o 1/33, East Punjabi
Bagh, Delhi.
C Name of the accused & 1. Braham Dutt Tiwari s/o sh Onkar his parentage and Dutt Tiwari r/o 360/77, Village Gajipur, address Delhi.
2. Smt Rajeshwari Devi w/o Braham Dutt Tiwari r/o 360/77, Village Gajipur, Delhi.
D Offence Complained of 452/448/342/506/34 IPC E Date of commission of 7/8.11.2001 offence.
F Date of Institution 06.06.2002
G Offence Charged 452/448/342/506/34 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 31.10.2019
Date of Pronouncement 31.10.2019
K Final Order Both accused acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.1/13 1 The story of the prosecution is that in the intervening night of 07/08.11.2001 from 10 PM till morning at property no. 360/78, Ghazipur Village, Khasra no. 370/02, within the jurisdiction of PS:
Kalyan Puri, accused Braham Dutt Tiwari and his wife Rajeshwari Tiwari alongwith some associates in furhterance of common intention committed house trespass by entering into the said premises which was used as human dwelling having made preparations for causing hurt, assault or wrongful restraint and wrongfully confined one Manju and her children and also threatened to kill them. Accordingly, they are alleged to have committed offences u/s 452/448/342/506/34 IPC. FIR
2 On the basis of the said allegations and on the complaint of the complainant Raj Kumar Singh (Ex. PW 8/A), FIR bearing number 413/01 (Ex.PW 5/A) PS Kalyan Puri under section IPC was lodged on 08.11.2001.
CHARGE 3 After investigation, chargesheet under section 173 Cr. P.C was filed on 06.06.2002.
4 On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 452/448/342/506/34 IPC was framed against accused Braham Dutt Tiwari and Rajeshwar Tiwari and read out to the said accused persons, to which they pleaded not guilty and claimed trial on 17.09.2004.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 15 witnesses in all:
STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.2/13
6 PW6 Manju is the victim of the present case and the sole witness in whose presence the offence was committed and thus, the star witness of the prosecution case. She deposed that in the month of November in the year 2001, she was residing in the premises of Kurmi Vikas Sansthan with her family for the purposes of chowkidari. On that day her husband Suman Kumar PW10 had gone to the night watchman duty at Jamia. At around 11 PM accused Braham Dutt Tiwari and his wife alongwith some other persons entered into the premises of Kurmi Vikas Sansthan and raised a wall in the middle of the premises and also built a room there. She was also locked inside her room and threatened to be killed if she reported the matter. At about 06.30 AM, when she raised alarm some passersby unbolted the door from outside. At about 8 AM when her husband returned from his duty he informed the officials of Kurmi Vikas Sansthan. She identified both the accused persons.
7 PW10 Suman Kumar is the husband of PW6 who deposed that he used to reside in the property belonging to Kurmi Sansthan, constisting of one room, latrine and bathroom. He was working as chowkidar at Jamia Milia Islamia University. In the night of 0708 November 2001 he was on duty and his wife and children were present in the premises. When he returned in the morning he saw a partition wall in the said plot. His wife Manju/PW6 told him that the same was constructed by Braham Dutt Tiwari and his wife after locking them inside the room and threatening them. In the morning some passerby had unbolted the room. When he reached the spot he saw that Braham Dutt Tiwari and his wife and 45 other persons were present there. He was also threatened by Braham Dutt Tiwari of being STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.3/13 killed in case he informed the Sansthan. After the accused persons had left he informed the President & other officials of the Sansthan from the STD booth on which they reached the spot. The wall was broken by the office bearers. He identified both the accused persons. He identified the photographs which are Ex.PW4/A to 4/T, and photographs of the room in which he was residing which are Ex.PW4/F,I,N,O,P,Q & T. 8 PW8 is the complainant Raj Kumar Singh who deposed that in the month of November 2001 he was the President of Kurmi Vikas Sansthan, Ghazipur, Delhi, which was situated at Property no. 36/78, Ghazipur, Extn., Delhi. The sansthan had purchased two plots that are admeasuring 350 sq. Yards from one Neelam Kaur in 1987 and admeasuring 180 sq. Yards from her husband Surjeet Singh in 1988. On the said plots, the meeting of their sansthan was smoothly going on. The said plot was surrounded by boundary walls and one room alongwith bathroom/toilet were constructed in the south corner. There were two entry gates on the boundary wall of the said plot. At that time one chowkidar namely, Suman Kumar used to reside there with his family for the safety of their Sansthan. Suman Kumar (PW10) was also working as night chowkidar with Jamia Milia at that time. 9 On 08.11.2001 at about 10 AM, PW10 informed him telephonically that one Braham Dutt Tiwari and his associates had confined his family members in the room and threatened them and had eracted a wall inside the boundary of their sansthan and had erected an incomplete room therein. He informed these facts to the other members of the sansthan and they all gathered at the property in question where they saw that a wall and an incomplete room had STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.4/13 been constructed and a threewheeler was also standing there. He immediately informed the local police. Police reached the spot at about 2.15/2.30 PM. In between the members of the sansthan demolished the illegal wall and room which was forcibly erected by the accused persons. He gave his statement to the police which is Ex.PW8/A. The accused persons were known to him as they were residents of the same locality. When they reached the spot, accused Braham Dutt Tiwari fled away from there with his associates and his wife Rajeshwari Devi. He handed over a copy of POA to the IO vide memo Ex.PW2/A regarding the ownership of the Sansthan. The documents of ownership of the property in question are Ex.PW7/A to 7/O. IO prepared the site plan at his instance and got the spot photographed. IO siezed the TSR no. DL1RD 7197 vide memo Ex.PW8/B. Thereafter, at his instance, accused Rajeshwari Devi was arrested from in front of her house and personally searched by SI Santosh vide memo Ex.PW1/A. This witness identified both the accused persons and was not subjected to cross examination. 10 PW2 Chander Bhan Singh was the secretary of the Sansthan at the relevant time. He deposed about the purchase of the land by the Sansthan and the incident that occurred in the intervening night of 07/08.11.2001 and their visit to the property in question and demolishing of the construction raised by the accused persons in consonance with the deposition of PW8.
11 PW3 Premlata was the organisational secretary of Kurmi Vikas Sansthatn at the relevant time. Her deposition is also with consonance with that of PW2 and PW8.
12 PW7 Santosh Kumar Katiyar deposed that he was attached with the STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.5/13 Kurmi Vikas Sansthatn for quite a long time. He was aware about the incident dated 08.11.2001 in respect of which on 30.11.2001 he alongwith Chander Bhan, the then secretary of the Sansthan visited PS Kalyan Puri and handed over the documents pertaining to the ownership of the plot in dispute, i.e. 360/78 out of Khasra no. 360/02 admeasuring 530 sq. Yards. to the IO. Since some portion of the plot had been acquired by the Govt. for service road, the society was in possession of about 470 sq. Yards of land. All the said documents were in the name of the then President Dilawar Singh and the then General Secretary, Chander Bhan. He produced the original documents of the purchase of the said property, copies of which are proved as Ex.PW7/A to 7/Q. He stated that the said copies were seized by the IO in his presence vide memo Ex.PW7/R. 13 PW1 WASI Santosh is a formal witness being the witness of arrest of accused Rajeshwari Devi. She deposed that on 08.11.2001, she was on patrolling duty with SHO PS Kalyan Puri when SHO received a call regarding quarrel at plot no 360/78 Village Ghazipur. She accompanied the SHO to the spot where Rajeshwari Devi was interrogated by the IO in her presence and personally searched by her vide memo Ex.PW1/A. 14 PW4 Raju is the photographer who deposed on 08.11.2001 he was called by the police at plot no. 360/78, Ghazipur Village alongwith his camera where some persons were collected and he was directed to take photographs of the said plot. On instructions, he had clicked the photographs of plot as well as the TSR standing there from different angles. There were some bricks lying on the plot alongwith iron garters. The site was known as Kurmi Vikas Sansthan. He handed STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.6/13 over the photographs and negatives to the IO. Photographs are Ex.PW4/A to 4/T. Negatives are Ex.PW4/U(colly) and the envelope affixing the seal of his studio is Ex.PW4/V. 15 PW5 HC Tej Prakash is a formal witness being the duty officer who proved the registration of the present FIR as Ex.PW5/A and the endorsement on the rukka as Ex.PW5/B. 16 PW11 Sh. Atul Kumar, the SubRegistrar IV Seelampur on 12.02.2002. He deposed that on that day, on request of IO regarding verification of documents and furnishing the photocopies of the same, he had furnished the information vide letter dated 12.02.2002 (Ex.PW11/A). He proved the certified copies of the GPA as Ex.PW11/B, receipt dated 16.07.1980, as Ex. PW 11/C, willdeed dated 18.11.1987 as Ex. PW11/D, will deed dated 02.03.1988 as Ex.PW11/E, receipt dated 18.11.1987 as Ex.PW11/F and receipt dated 02.03.1988 as Ex.PW11/G. 17 PW12 Sh. Bala Dutt was the Halka Patwari posted at Patapar ganj office on 05.03.2002. This witness could not recall anything about the case, was declared hostile and crossexamined by the Ld. APP for State but still did not support the case of the prosecution. 18 PW13 Sh. Suraj Prakash was posted as Tehsildar at SDM office Preet Vihar. This witness could not recall anything about the case, was declared hostile and crossexamined by the Ld. APP for State but still did not support the case of the prosecution. 19 PW14 ASI Sukhbir Singh is a formal witness being the witness to the arrest of accused Braham Dutt Tiwari on 09.01.2002 vide memo Ex.PW14/A. 20 PW15 Insp. Madhukar Rakesh is the IO and PW9 Ct. Kiran Pal is the STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.7/13 constable who had accompanied the IO to the spot on 08.11.2001. Their testimonies are in consonance with each other. 21 They deposed that on 08.11.2001 on receipt of DD no. 19A (Ex.PW5/A) regarding quarrel at the house of Braham Dutt Tiwari, they reached at the spot where many public persons and members of Kurmi Vikas Sansthan were found present and construction material was also lying in house no. 360/78 which was claimed to be the land of Kurmi Vikas Sansthan. They informed about the incident of previous night in which the accused persons had tried to take the possesssion of the land in question. One TSR was also found stationed there. IO recorded the statement of the complainant Ex. PW 8/A and prepared the rukka Ex.PW15/A and got the FIR registered through PW9. He called the photographer Raju at the spot and got the photographs clicked. He seized the TSR and documents of ownership of the plot. He apprehended accused Rajeshwari Devi. On 30.11.2001 IO collected other documents of ownership of the plot in question and seized them. On 09.01.2001 he arrested accused Braham Dutt Tiwari on surrender. He recorded the statement of the witnesses and filed the chargesheet.
STATEMENT OF ACCUSED 22 Statement of accused persons was recorded u/s. 313 Cr.P.C. on 08.11.2017 wherein the entire incriminating evidence proved on record against them was put to them. They stated that they have been falsely implicated in the present case.
DEFENCE EVIDENCE 23 The accused persons did not examine any witness in support of their defence.
STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.8/13 24 Final arguments have been heard and record carefully perused. JUDICIAL RESOLUTION 25 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 26 In the present case , accused has been charged for offences u/s 452/448/342/506/34 IPC.
27 Section 448 IPC provides punishment for the offence of house trespass. The offence of house trespass is defined in section 442 IPC as per which a criminal trespass by entering into or remaining in any building used as a human dwelling is covered under house trespass. The term criminal trespass on the other hand is defined u/ s 441 IPC. This section has three essential ingredients:
1) Entry into or upon the property in possession of another.
2) If such entry is lawful, then unlawfully remaining in such property,
3) Such entry or unlawful remaining must be with intent to commit an offence or to intimidate, to insult or annoy the person in possession of the property.
STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.9/13 28 Every unauthorised entry is not criminal trespass in terms of section 441 IPC. A trespass is not criminal unless one or the other intention specified in the definition is proved. There must be an unauthorised entry into or upon property, unauthorised, i.e. either directly against the will of the person in possession or constructively against his will, in the sense that he who enters has unlawful intention, which, were it known to such person, would make him object, forbid, or prevent the entry that in ignorance of such intention he sanctions and permits. 29 The possession must be actual possession of some other person other than the alleged trespasser. Possession means actual physical possession which includes the right to eject or exclude another person. In the absence of proof of actual physical possession by a person other than the trespasser, the alleged trespasser is entitled to an acquittal. Title of the property in question is completely irrelevant for the purposes of this section and cannot be raised as a defence as the offence is against possession and not against the ownership of the property.
30 Section 452 IPC provides punishment for house tresspass after preparation for causing hurt, assault or wrongful restraint. 31 Section 342 IPC provides punishment for wrongful confinment as defined in Section 340 IPC.
32 Section 506 IPC provides punishment for Criminal intimidation, threatening of any one.
33 In order to hold the accused persons guilty, the prosecution was required to prove that on the date of incident the accused persons had tresspassed into a property in possession of some other person after making preparations for causing hurt, had wrongfully confined some STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.10/13 one and thretened to kill them. The only witness to the incident examined by the prosecution is Manju/ PW 6. She simply deposed that in the night of one day in November 2001, while her husband was on duty and she was residing in the premises of Kurmi Vikas Sansthan, both accused with some other persons entered into the premises, locked her inside a room, threatened to kill her and raised a wall in the middle of the premises and built a room there. This witness neither deposed about the date of incident nor the number of the property where she was residing and the incident had occured. She could not produce any document to show that she was residing at the property in dispute at the time of the occurance of the alleged incident. Though she admitted that at that time her children were studying in school but could not tell if the address of property in dispute was given in the school or not as their residential address. This is despite the fact that as per her own admission, she was residing there since last 3 years prior to the date of incident. As per her testimony some passersby had opened her door in the morning at about 6 am when she raised noise. But she neither informed the said passersby about the incident nor made immediate complaint to police. Rather she waited for her husband to return back who came at about 8/8.30 am. It is also interesting to note that husband of PW 6 i.e. PW 10 has deposed that the two gates on the outer boundary wall of the plot (which was about 5/6 feets in height) were found locked from outside when he reahed the property in dispute. But the door of the room inside of the boundary wall, was found open and his wife was out of the room at that time. Depsite the outside gates being locked from outside how some passerby had opened the door of the room has STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.11/13 remained unexplained. It also appears to be highly improbable and clouds the entire deposition of PW 6 with doubt. Even PW 10/ husband of PW 6 could not prove any document to show that he was residing at the plot in dispute on the date of the incident. 34 It is also interesting to note that as per deposition of PW 6, none of the accused were present there when she came outside but as per PW 10 both accused were found present at the spot when he returned from his duty and accused Brahm Dutt Tiwari had also threatened him. These contradictions again create doubt on the story of the prosecution and trust worthiness of PW 6 and PW 10. 35 Moreover, the allegations against the accused are that on the date of incident, they had entered into the property in dispute and constructed a wall in the middle of the plot and a room. But interestingly, as per the deposition of prosecution witnesses the said construction was demolished by members of Kurmi Vikas Sansthan even before reporting the matter to the police thereby causing disappearance of evidence even if there was any. Thus, the allegations being made also not supported by any photographs/ physical evidence of alleged construction. Even the IO has not deposed about any fresh construction at the spot. All these contradictions and deficiencies in the evidence and investigation coupled with the untrustworthy testimony of PW 6 and PW 10 unsupported by any documentary evidence to show their presence at the spot is sufficient to cloud the entire case of the prosecution with doubt. The benefit of this doubt is to be given to the accused persons.
36 In these circumstances, considering the over all evidence on record and the contradictions in the depositions of prosecution witnesses, STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.12/13 coupled with the fact that there is no independent public witness examined by the prosecution, I have no hesitation in holding that prosecution has miserably failed to prove the offence u/s 452/448/342/506/34 IPC IPC as charged against both the accused beyond any reasonable doubt. Both the accused are accordingly entitled to acquittal for the said offences.
37 In view of the discussion, reasons and findings given above, accused Braham Dutt Tiwari and Smt. Rajeshwari Devi are acquitted for the offence u/s 452/448/342/506/34 IPC as charged against them giving them the benefit of doubt. Digitally signed by ANNOUNCED IN THE OPEN COURT SHIVALI SHIVALI SHARMA Location: East District Karkardooma Courts Delhi ON 31/10/2019 SHARMA Date: 2019.11.01 14:12:12 +0530 (SHIVALI SHARMA) ACMM (EAST)/KKD/31/10/2019 Certified that this judgement contains 13 pages and each page bears my signatures.
(SHIVALI SHARMA) ACMM (EAST)/KKD/31/10/2019 STATE Vs. Braham Dutt Tiwari FIR NO.413/01 No.13/13