Delhi District Court
State vs . Sunheri Devi on 10 December, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. SUNHERI DEVI
FIR NO. 170/2011
PS: MIANWALI NAGAR
U/S: 448 IPC READ WITH 441 IPC
JUDGMENT
Case no. : 68021/16
Date of commission of offence : 05.07.2011
Date of institution of the case : 29.11.2011
Name of the complainant : SI Sandeep Kumar
Name of accused and address : Sunheri Devi
W/o Sh. Chander Pal Mishra
R/o B-93, Chandan Vihar,
Nihal Vihar, Nangloi, Delhi-41
Offence complained of or proved : U/s 448 IPC read with 441 IPC
Plea of the accused : Pleaded not guilty
Final Order : Convicted
Date on which reserved for judgment : 06.12.2018
Date of announcing of judgment : 10.12.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Sunheri Devi pursuant to charge sheet filed by PS Mianwali Nagar U/s 448 IPC read with 441 IPC subsequent to the investigation carried out by them in FIR No.170/2011.
2. As per the prosecution, on 05.07.2011 at about 09:30 AM at R-673, FIR No. 170/2011, PS Mianwali Nagar Page 1/9 Camp No.5, Jwala Puri, Delhi, accused entered into or upon property in the possession of complainant Shri Niwas with intent to commit an offence or to intimidate, insult or annoy complainant Shri Niwas, who was in possession of said property and further she unlawfully remained in that property with intent to intimidate, insult or annoy Shri Niwas. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offence punishable u/s 448 IPC read with 441 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 448 IPC read with 441 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 10 witnesses in total.
5. PW1 Shriniwas stated that 19.03.2004, he purchased a plot of 25 square yards bearing no.R-673, R-Block, Camp No.5, Jwala Puri from the accused Sunheri Devi against a sum of Rs.2.5 Lakh. It is further stated that at the said point of time the accused did not hand over the possession of the said plot, so PW1 moved to the Court for recovery of the same and the decree was passed in favour of PW1 on 02.03.2010. In May'2011, PW1 was handed over the possession with the assistance of bailiff and police. PW1 further stated that on 30.06.2011 he visited abroad and after 5-6 days, one of the employee of PW1 informed him that accused had entered the plot by breaking the lock put by PW1. The employee of PW1 called the police at 100 number and after returning, PW1 filed a complaint dated 08.07.2011 Ex.PW1/A. It is further stated by PW1 that he handed over the copy of the judgment alongwith other documents to the IO, which FIR No. 170/2011, PS Mianwali Nagar Page 2/9 were seized vide seizure memos Ex.PW1/B to PW1/H respectively. PW1 further stated that the accused has forcibly taken the possession after breaking open the lock of the property. PW1 was cross-examined on behalf of accused.
6. PW2 Ct. Mahesh Kumar deposed qua the manner and his involvement in the investigation. PW2 was not cross-examined on behalf of accused.
7. PW3 W/Ct. Suman Lata stated that on 10.07.2011, she was posted at PS Mianwali Nagar as Constable. On that day she alongwith IO SI Sandeep went to H.No. R-673, Camp No.5, Jwala Puri, Delhi, where accused was found and thereafter interrogated. Thereafter accused was arrested vide arrest memo Ex.PW3/A. PW3 was cross-examined on behalf of accused.
8. PW5 Retired SI Bhupender Singh stated that on 09.05.2011 at 11:30 AM, he was informed by the Duty Officer to reach at H.No.R-673, Jwala Puri, Delhi, where one bailiff namely Gopal Singh came alongwith eviction order passed by the Court of Sh. Pitambar Dutt, Ld. ADJ, Tis Hazari Court for vacation of the premises. It is further stated that PW5 was asked to assist the bailiff for execution of the said order. It is further stated that on reaching the spot, PW5 found HC Surender Pal, Ct. Ram Singh, Ct. Suresh and W/Ct. Mukesh were present alongwith the bailiff. As per the order of the Court, the premises which was in the possession of accused had to be vacated and handed over to Shriniwas, who was also present on the spot. This witness correctly identified the accused before the Court. PW5 further stated that premises was evicted and all the belongings of accused lying in the said premises were taken out and the possession was handed over to Shriniwas, who put his lock on the premises. The report was prepared by the bailiff accordingly. PW7 HC Surender Pal and PW8 Ct. Ram Singh deposed on the same lines as that FIR No. 170/2011, PS Mianwali Nagar Page 3/9 of PW5. PW5 and PW7 were cross-examined on behalf of accused, however, PW8 was not cross-examined on behalf of accused.
9. PW4 Sh. Hari Ram and PW6 Sh. Om Prakash did not support the case of the prosecution in its entirety, so both were cross examined by Ld. APP for the state with the permission of the court. PW5 was not cross-
examined on behalf of accused, however, PW6 was cross examined by accused.
10. PW9 ASI Suresh was the Duty Officer, who exhibited on record copy of FIR as Ex.PW9/A and endorsement on the rukka as Ex.PW9/B. This witness was cross-examined on behalf of accused.
11. PW10 SI Sandeep Kumar stated that on 05.07.2011, he received information vide DD entry no. 20A regarding criminal trespass by the accused by using force at R-673, Camp No. 5, Jwala Puri. PW10 correctly identified the accused. It is further stated that PW10 visited the aforesaid place of incident, where complainant namely Hemant met him and apprised him that the aforesaid house pertains to his owner namely Shriniwas and it was also apprised that the accused entered the house after breaking the lock. The DD entry was kept pending as complainant failed to produce the documents of ownership. It is further stated that on 08.07.2011 the owner namely Sri Niwas came at police station and showed the documents pertaining to his ownership and his statement Ex.PW1/A was recorded. On the basis of said complaint, rukka/tehrir was prepared and the FIR was registered. PW10 exhibited on record the site plan as Ex.PW10/A. It is further stated that on 09.07.2011 complainant again came at police station and handed over documents i.e. copy of GPA, copy of the order passed by Ld. Civil Court and the complaint filed at PS. All the aforesaid documents were seized vide separate seizure memos already exhibited by PW1. It is further stated that on 10.07.2011 PW10 alongwith W/Ct. Suman and two or three Constables reached at the FIR No. 170/2011, PS Mianwali Nagar Page 4/9 aforesaid property and found the accused inside the premises. Despite request, the accused did not open the door initially. Thereafter the door was opened and disclosure statement of accused was recorded. The accused was arrested and released on bail. After completion of investigation, PW10 filed the charge sheet against the accused U/s 173 (2) Cr.P.C. This witness was cross-examined on behalf of accused.
12. No other witness was left to be examined, hence PE was closed vide order dated 18.08.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C :
13. Statement of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence was put to her to which she pleaded innocence and stated that she has been falsely implicated in the present matter. The accused stated that since some of the sale consideration was left to be paid by PW1, he handed over the keys of the said premises to her as he could not arrange for the said sale consideration at that time. Thereafter, in a settlement agreement before elderly persons of the vicinity, PW1 gave her that pending sale consideration and thereafter she left the said premises. Accused opted to lead defence evidence and examined one Sh. Dinesh as DW1.
DEFENCE :
14. DW1 Sh. Dinesh stated that he knows accused Sunehari Devi as they are neighbours. Earlier, accused was residing at Camp No. 5, Jawalapuri, Delhi and presently she is residing at Nihal Vihar. It is stated that he is aware of settlement which took place in Jawalapuri area in the year 2015 through Panchayat (local elderly person). DW1 has signed the compromise between accused Sunehari Devi, Shri Niwas @ Sandeep FIR No. 170/2011, PS Mianwali Nagar Page 5/9 which was written in the year 2015 through Panchayat. The said document/compromise/settlement is on record as Mark DX/1 and same bears signature of DW1 at point Y. This witness was cross-examined by Ld. APP on behalf of State.
ARGUMENTS:
15. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, commission of offence U/s 448 IPC read with 441 IPC is proved beyond any doubt.
16. On the other hand, Ld. counsel for accused has argued that there is no legally admissible evidence against the accused. It is argued that the accused has not criminally trespassed into the house of the complainant, in fact he himself gave the keys to the accused as he could not pay the entire consideration amount. It is further argued that accused has proved on record the settlement arrived with the complainant which falsify the case of the complainant. It is further argued that prosecution has failed to prove the guilt of accused beyond reasonable doubt, hence accused is entitled to be acquitted.
FINDINGS:
17. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
18. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offence U/s 448 IPC read with 441 IPC. Section 448 IPC provides punishment for committing criminal trespass by entering into any building, tent and vessel FIR No. 170/2011, PS Mianwali Nagar Page 6/9 used as human dwelling or a place of custody of property. Section 441 IPC defines criminal trespass that reads as: whoever enters into or upon property in possession of another with intent to commit offence or to intimidate, insult or annoy any person in possession of such property.
19. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused guilty of the offence U/s 448 IPC for the following reasons:-
20. The star witness of the prosecution is the complainant/PW1 Shriniwas, who testified before the Court. In the examination-in-chief the witness categorically deposed as to how the accused criminally trespassed in his house when he was away from country. No material infirmity or contradiction appeared during his cross-examination by the accused. The testimony of PW1/complainant Sh. Shriniwas proves the case of the prosecution without any reasonable doubt as his testimony remained un-impeachable. The testimony of PW1 remained unrebutted throughout.
21. Ld. counsel for the accused has raised a contention that the matter was settled between the complainant and the accused following which the complainant himself given the keys to the accused, so it was not the forcible possession taken by the accused. Ld. counsel referred to the document i.e. agreement Mark DX-1/1 and contended that the ingredients of criminal trespass are not made out.
The Court does not find any merits in the contention put forth by the Ld. counsel for the simple reason that there is no eye witness examined by the accused to prove that the entry of the accused in the property in question was with the consent of complainant. The defence witness examined as DW1 also does not state anywhere in his testimony that he has witnessed the handing over of the keys by the complainant voluntarily to the accused on the alleged date of incident i.e. 05.07.2011. On the FIR No. 170/2011, PS Mianwali Nagar Page 7/9 other hand admittedly the complainant has recovered the possession of the property in question through the Court by filing the suit. It is also not disputed by the accused that the complainant put his locks under the execution by the bailiff from the Court and finally received the keys of the lock from the Court. The complainant recovered his possession from the accused through a legal process, so the claim of the accused that complainant voluntarily handed over the keys to the accused is not probable or believable by any stretch of imagination. Further, the agreement/panchnama Mark XZ-1/1 pertains to date 26.02.2015 whereas the incident in question pertains to July'2011 i.e. much prior to the alleged settlement. The testimony of IO/PW10 SI Sandeep Kumar also proved on record the forcible possession of the accused in the property in question. It is further pertinent to note that PW4 and 6, though not supported the case of the prosecution in its entirety but their testimony during their cross- examination does not in any way support the defence of the accused. It is settled position of law that the conviction can be based upon the sole testimony of complainant if it is convincible. As observed above the testimony of PW1 remained unrebutted and proved the case of prosecution. In view of the evidence led on record and the unrebutted testimony of PW1/complainant Shriniwas the ingredients of Section 448 IPC are clearly established.
22. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution.
In view of the observations given above and the cogent evidence led on record, this Court is of the view that the prosecution has successfully proved the case and established the offence charged against the accused beyond reasonable doubt. Hence, the accused Sunheri Devi is found to be guilty for the offence U/s 448 IPC. Accordingly, accused FIR No. 170/2011, PS Mianwali Nagar Page 8/9 Sunheri Devi stands convicted for the offence U/s 448 IPC.
23. Copy of judgment be given free of cost to the convict.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.12.10
16:24:38 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 10.12.2018 MM-04 (WEST)/DELHI
Containing 09 pages all signed by the presiding officer.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2018.12.10 16:24:47 +0530 (VISHAL PAHUJA) MM-04 (WEST)/DELHI FIR No. 170/2011, PS Mianwali Nagar Page 9/9