Delhi District Court
State vs Hitesh Bhasin on 28 June, 2011
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 05, ROOM NO. 513,
DWARKA, DELHI
STATE
VERSUS
HITESH BHASIN
FIR No. 33/99
P.S.: Inderpuri
U/S: 451/323/506(1) IPC
1. Serial No. of the case : 02405R0267142010
2. Date of commission of offence: 29.01.1999
3. Name of the Complainant : Rattan Sachdev,
S/o Kanwar Bhan Sachdeva,
R/o B41, Inderpuri,
New Delhi.
4. Name of the accused, and
his parentage and residence : Hitesh Bhasin,
S/oFakir Chand,
R/o 2994/5A/2, Ranjeet
Nagar, New Delhi.
6. Date when judgment : 10.06.2011
was reserved
FIR No. 33/99 Page 1/11
PS- Inderpuri
7. Date when Judgment : 28.06.2011
was pronounced
8. Offence Complained of : Section 451/506/323IPC
or proved
9. Plea of accused : Pleaded not guilty
10. Final Judgment : Convicted for offence
U/s 451/323/506(1) IPC
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 29.01.99 at about 7pm at B41, Inderpuri within the jurisdiction of PS Inderpuri, the accused committed house trespass in order to cause hurt to the complainant Rattan Sachdev and caused simple injury to him and committed criminal intimidation. Accordingly, FIR No. 33/99, PS Inderpuri was registered and challan was filed on 10.03.1999.
2. On appearance of the accused, a charge was framed against the accused for offences U/s 451/506/323 IPC to which he pleaded not guilty and claimed trial. Thereafter the matter was put up for prosecution evidence.
3. Prosecution has examined Five witnesses namely PW1 Rattan Sachdev, PW2 HC Ganesh, PW3 HC Narender Kumar, PW4 HC Ram Phal FIR No. 33/99 Page 2/11 PS- Inderpuri and PW5 Inspector Rajesh Dogra to prove the case against the accused. The evidence of each of PWs is very relevant and the same is analyzed and discussed later on at appropriate places.
4. After the Prosecution evidence was closed the statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence were put to him where he stated that he has been falsely implicated as he has got arrested one person on corruption charges. He further stated that the complainant had quarrel with some other person and his name was wrongly taken up in this case. Accused stated that he want to lead D.E. Thereafter the matter was put up for defence evidence. But the accused failed to produce any witness in his defence and DE was closed on 04.06.2011. Thereafter, the matter was adjourned for final arguments.
5. Ld APP for the State and Ld. Counsel for accused addressed useful and pertinent arguments. Ld. APP for the state has argued that all the witnesses have supported the version of the prosecution. He further argued that case is proved beyond doubt against the accused and prays for conviction of the accused.
6. On the other hand, ld counsel for the accused submits that the accused has been falsely implicated in the present case. Ld counsel has also FIR No. 33/99 Page 3/11 PS- Inderpuri argued that their are material contradictions in the testimonies during examination in chief and cross examination of PW1. He has further argued that even the identify of the accused has not been established as the name of the accused is mentioned as Prithiviraj Bhasin in rukka and as Hitesh Bhasin in the chargesheet. It is also argued by the ld counsel that no public person was made witness despite 56 public persons were present at the spot. He further prays for the acquittal of the accused.
7. PROSECUTION EVIDENCE:
7.1 PW1 is the complainant in the present case and he stated that when he was present in his house, the accused came to his house and started beating him and he also slapped him and thereafter, accused threatened him that "he will see him how he put a complaint regarding illegal construction of the building at B20 to the MCD and threatened of dire consequences and to kill him'. Thereafter, he informed the police and police came and recorded his statement which is Ex. PW1/A. In his cross examination PW1 stated that he told to the police that accused is the brother of Prithiviraj Bhasin but police wrongly wrote the name of Prithiviraj Bhasin as accused.
He further stated that his spectacles and one tooth was also broken and due to which he could not read the statement written by the police and signed the same. He further stated that 45 public persons gathered at the spot. He denied that he had made any complaint to the municipal councilor regarding FIR No. 33/99 Page 4/11 PS- Inderpuri unauthorized construction carried out at B20, Inderpuri. He stated that on the same day police recorded his statement at his house only once. He also denied that he deliberately initially named Prithivi Raj Bhasin in his complaint which was later on changed to Hitesh Bhasin. He also denied that he alongwith Khattar and Sobti demanded money for permitting the construction activities in the said area. PW1 correctly identified accused present in the Court as the person who attacked him. 7.2 PW3 proved the registration of FIR. In his cross examination he stated that complainant has told him that Hitesh Bhasin has came to him and threatened and slapped him.PW3 denied all suggestion that accused has been falsely implicated in connivance with complainant as accused refused to pay the illegal amount demanded by police and no such incident ever took place.
7.3 PW4 proved the arrest of the accused being done in his presence vide Ex. PW1/C. In his cross examination PW4 has denied that he know the accused before the incident as the beat constable of 'B' Block. He also denied suggestion that accused has been falsely implicated in connivance with complainant as accused refused to pay the illegal amount demanded by police. He stated that there was no public person except complainant when the accused was arrested. He also denied that the accused was called by the FIR No. 33/99 Page 5/11 PS- Inderpuri IO on the pretext to talk about the matter to his building work which was going at B20, Inderpuri. He also denied the suggestion that accused was not arrested in his presence.
7.3. PW5 is the IO in the present case. He has stated in his evidence that on receipt of DD No. 28A he recorded the statement of complainant and prepare rukka vide Ex. PW5/A. He also proved the preparation the site vide Ex.PW5/B at the instance of the complainant and recording of supplementary statement of complainant. He stated that the accused was arrested on 30.01.99 on the pointing out of the complainant and was produced before the court on 31.01.99 and was sent to J/C and on completion of investigation challan was filed. In his cross examination he has stated that on receiving PCR call regarding quarrel he reached at the spot and found 56 people were already present there i.e resident of the locality. He further stated that he did not record the statement of any person present there. He admitted that the complainant has wrongly mentioned the name of the accused initially but he stated that the complainant made a supplementary statement. He admitted that no injury was seen by him on the body of the complainant and complainant also refused for medical examination.
FIR No. 33/99 Page 6/11 PS- Inderpuri INGREDIENTS OF OFFENCES COMPLAINED
8. The offence u/s 451 IPC is made out if it is proved that accused committed house trespass in order to commit offence punishable with imprisonment. Section 441 IPC and 442 IPC defines criminal trespass and house trespass.
8.1 Section 442 IPC defines house trespass as whoever commits criminal trespass 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". House trespass is an aggravated form of criminal trespass that is for the offence of house trespass there has to have all the ingredients of criminal trespass along with the ingredients of section 442 IPC.
8.2 A trespass becomes a 'criminal trespass,' only when entry into or upon the property in possession of another is done with the intention to commit or to intimidate, insult or annoy the person who is in the possession of the property.
In Lalchand Pitumal v. Emperor (AIR 1933 Sind
396) it was observed that, 'to constitute the offence of trespass the accused must enter into or FIR No. 33/99 Page 7/11 PS- Inderpuri upon property in possession of another. This "possession" envisaged in section 441 IPC is physical and not merely constructive possession as the act intended to be done which makes the trespass must be done to the person in possession and on the property." (Emphasis mine) 8.3 Section 441 IPC defines criminal trespass which provide that entry into the property with the intention to commit an offence or to intimidate, insult or annoy any person in possession of such property, The section requires:
1. Entry into or upon property in the possession of another.
2. If such entry is lawful, then unlawfully remaining upon such property
3. Such entry or unlawful remaining must be with intent -
a. To commit and offence; or b. To intimidate insult or annoy any person in possession of the property.
8.4 Section 319 IPC defines Hurt as bodily pain, disease or infirmity punishable u/s 323 IPC. For proving offence of simple hurt it is necessary that the evidence must be brought on record showing either bodily pain, FIR No. 33/99 Page 8/11 PS- Inderpuri disease or infirmity attributed to the acts of accused. 8.5 Section 503 IPC defines criminal intimidation punishable u/s 506 IPC. It provides threat by one person to another with any injury to person, reputation or property of that person or some other person in whom that person is interested with intention to casue alarm to that person or to cause him to do any act which he is not legally bound to do, or omit to do any act which that person is legally entitled to do.
8.6. In the present case the complainant i.e, PW1 categorically stated that accused came to his house and started beating him and also threatened him with dire consequences. Even during his cross examination the defence has not been able to shake the testimony of PW1. The argument of Ld. Counsel that the identity of the accused is disputed is not maintainable as PW1 has categorically stated during his cross examination that he has told the police that brother of Pritiviraj Bhasin has trespassed and threatened and beaten him but police did not recorded it correctly. Moreover in his supplementary statement before the police also he has clarified the same. Another argument of the Ld. Counsel that no independent witness has been joined is also humbly rejected as it is a settled position of law that even the testimony of even the single witness is sufficient for proving the case. In the present case also, the complainant has stood the test of time and when he was FIR No. 33/99 Page 9/11 PS- Inderpuri recalled for cross examination on 06.05.2011 there was no material contradictions in his testimony despite the fact that more than ten years have passed since the incident happened.
8.7. The accused did entered upon the property of the complainant and not only beaten but also threatened and intimidated the complainant if he made any complaint. It is settled position of law that for proving offence u/s 323 IPC, no visible injury is required and even in the absence of medical opinion about the nature of injuries, the offence of causing simple injury can be proved by oral testimony, it is proved that the accused in fact has committed house trespass and threatened and beaten the complainant. Even, during his cross examination, the defence has not be able to shake the foundation of the prosecution case as PW1 has stated that accused has threatened to kill him and had beaten him. PW1 has correctly identified the accused when produced before the court. The chain of events is clearly established right from the DD entry to rukka and registration of FIR. The arrest of the accused was also proved vide Ex. PW1/B by PW4.
9. Accordingly, on the basis of material on record and testimony of the witnesses I am of the opinion that prosecution has successful in proving the charges against the accused beyond reasonable doubt. Hence, accused is convicted for the offence under section 451/323/506(1) IPC. FIR No. 33/99 Page 10/11 PS- Inderpuri
10. Copy of the judgment be given free of cost to the convict. Put up for arguments on the point of sentence on 08.07.2011.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 28.06.2011 METROPOLITAN MAGISTRATE05
DWARKA COURTS, DELHI.
FIR No. 33/99 Page 11/11
PS- Inderpuri