Delhi District Court
State vs . Roshan Lal on 18 July, 2012
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
State Vs. Roshan Lal
FIR No. 183 of 2003
P.S. Kanjhawala
Unique ID No. 02404RO353412010
Date of institution of case: 12.9.2003
Date of reserving the judgment: 18.7.2012
Date of pronouncement of judgment: 18.7.2012
J U D G M E N T
1. S. No. of the Case : 289/2/03 2. Date of Commission of Offence : 28.8.2003 3. Date of institution of the case : 12.9.2003 4. Name of the complainant : Vijay Kumar
5. Name of the accused,parentage & address: Roshan Lal S/o Chand Ram, R/o village Salahpur, Majra Dabas, Delhi
6. Offence complained or proved : 451/323 IPC
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 18.7.2012 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. In the present case, the accused Roshan Lal is sent to face trial of offences u/s 451/323 IPC on the allegations that on 28.8.2003 at about 5:30pm at the house of complainant Vijay Kumar at village Salahpur Majra Dabas, Delhi within the jurisdiction of PS Kanjhawala accused Roshan Lal committed house FIR No. 183/2003 PS Kanjhawala 1 trespass by entering into the said house and voluntarily caused simple injury on the person of Vijay Kumar. Matter was reported to police. The accused was arrested and upon completion of necessary investigation challan was prepared and filed in court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 451/323 IPC was framed against the accused on 16.4.2004 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 ASI Asha Devi was posted as duty officer in PS Kanjhawala who recorded FIR Ex. PW 1/A in the present case.
6. PW 2 Hawa Singh deposed that on the day of incident when he returned from his fields in the evening he was told by the villagers that a quarrel has taken place between the families of Sukhan and Mangto. He further deposed that no police official came to him and his statement was not recorded. He was cross examined by the Ld. APP for state where he denied all the suggestions given.
7. PW 3 Radhey Shyam deposed that on the day of incident he was told by the villagers that a quarrel has taken place between the families to Sukhan and Mangto. He further deposed that no police official came to him and his statement FIR No. 183/2003 PS Kanjhawala 2 was not recorded. He was also cross examined by the Ld. APP for state where he denied all the suggestions given.
8. PW 4 HC Jagdish deposed that on 28.8.2003 he joined investigation of this case alongwith SI Ram Kumar Dahiya and they reached at village Majra Dabas where they met complainant Vijay Kumar and on the direction of IO he took Vijay Kumar to SGM Hospital Mangolpuri and got conducted his medical examination. After that they returned to village Majra Dabas. After that IO recorded the statement of injured Vijay Kumar and prepared the rukka upon the same and got the FIR registered through him. After that IO arrested accused Roshan Lal vide memo Ex. PW 4/A and conducted his personal search vide memo Ex. PW 4/B.
9. The complainant Vijay became untraceable during the trial. Considering the fact that the present case has been spinning its wheels since the year 2003 and considering the hostility of eye witness and untraceability of complainant who alone could have proved the complicity of accused, the prosecution evidence was closed. As nothing incriminating was found on record against the accused which could warrant his examination U/s 313 Cr.P.C., it was dispensed with.
10. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
11. In the present case, the prosecution machinery came into motion by the statement of complainant Vijay Kumar made to police on 28.8.2003 wherein FIR No. 183/2003 PS Kanjhawala 3 he stated that on 28.8.2003 at about 5:30am when he was sleeping on the roof of his house, accused Roshan Lal came the roof of his house by climbing the wall, abused him and caused hurt upon his person by slaps and punches. On the basis of the allegations the accused was charged u/s 451/323 IPC. Section 451 and 323 IPC are reproduced below:
"451. Housetrespass in order to commit offence punishable with imprisonment Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years."
"Section 323. Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Hurt is defined u/s 319 IPC which is reproduced below:
"Section 319. Hurt.
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
12. Criminal Trespass is defined in Section 441 IPC and house trespass is defined in Section 442 IPC which are reproduced below: FIR No. 183/2003 PS Kanjhawala 4
"Section 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"."
"Section 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".
Explanation:
The introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass."
13. Thus to prove the guilt of the accused under the offences charged the prosecution was obliged to prove the following ingredients:
1.That the accused entered into the house of the complainant
2.With the intent to commit offence or to intimidate, annoy or insult the complainant;
3.And caused simple hurt to the complainant.
14. In the present case, the complainant Vijay Kumar upon whose complaint the prosecution machinery came into motion became untraceable and FIR No. 183/2003 PS Kanjhawala 5 prosecution failed to examine this star witness and due to his non examination, the complaint on the basis of which the present FIR was registered remained unproved. The other public witnesses i.e PW 2 Hawa Singh and PW 3 Radhey Shyam who are the alleged eye witnesses to the incident have completely turned hostile and have disowned the prosecution story in its entirety. The other witnesses who were examined or remained to be examined are the police officials and the doctor. No fruitful purpose would have been served by recording the testimonies of the remaining witnesses as they are not the ocular witnesses and could not prove the complicity of the accused persons in the commission of the offence. Accordingly, the prosecution evidence was closed.
15. The culpability of the accused could be proved either by ocular or circumstantial evidence. The complainant is untraceable and other eye witnesses are hostile. Thus, there is no ocular evidence on record to infer the guilt of accused. It is well settled law that to base the conviction on the circumstantial evidence, there must be complete chain of circumstances which point towards only one thing that is the guilt of the accused. Circumstantial evidence available on record does not pass the test. In the present case, this Court unflinchingly holds that it is unsafe to convict the accused on the basis of evidence available on record in absence of the testimony of the star witness, the complainant Vijay Kumar. The prosecution was under the bounden duty to prove that the accused trespassed into the house of the complainant and caused simple injuries on the FIR No. 183/2003 PS Kanjhawala 6 person of complainant with fist and leg blows. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. The complainant Vijay Kumar could not be examined due to his non traceability. Thus, there is nothing on record which suggest the complicity of the accused in the commission of the present offence and therefore, the accused is entitled to be exonerated. The court unflinchingly holds that prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubts.
16. In the light of above discussion and observations, the accused Roshan Lal is hereby acquitted for the offence U/s 451/323 IPC. Bail bonds are cancelled. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same.
17. File after necessary compliance be consigned to record room.
Announced in open court (Sushil Anuj Tyagi )
18th day of July, 2012 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR No. 183/2003 PS Kanjhawala 7