Delhi District Court
Fir No. 08/11 State vs Shakeel Ahmed And Anr. Page 1 Of 18 on 19 April, 2022
IN THE COURT OF MS. VIDHI GUPTA ANAND,
METROPOLITAN MAGISTRATE-08
CENTRAL, TIS HAZARI COURTS, DELHI
JUDGMENT U/S 355 Cr.PC
a Serial No. of the case : FIR No. 08/11, PS Chandni
Mahal [CIS no. 296575/2016]
b Date of the commission of : On/After 28.11.2010
the offence
c Name of the Complainant : Ms. Badrunissa
d Name of Accused person : (1) Shakeel Ahmed
and his parentage and (2) Wakil Ahmed (Expired)
residence
Both:
S/o Akeel Ahmed
R/o 2198A, Pahari Bhojla,
Chitli Qabar, Delhi
e Offence complained of : 448/34 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 01.04.2022
I Order pronounced on : 19.04.2022
BRIEF REASONS FOR DECISION:
Brief facts of the case and Trial Proceedings:
1.Sh. Shakeel Ahmad, the accused herein, alongwith his co- accused Sh. Wakeel Ahmad have been charged for committing offence of FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 1 of 18 PS : Chandani Mahal house trespass punishable under Section 448, Indian Penal Code (hereinafter referred to as "IPC"). It is pertinent to note that during the pendency of trial, accused Wakeel Ahmad expired and proceedings were abated with respect to him vide order dated 15.02.2021. Accordingly, vide this judgement this court shall decide and dispose of the matter on merits with respect to accused Shakeel Ahmad.
2. The case of the prosecution is that on/after 28.11.2010 at H. No. 2198, First floor, Pahari Bhojala, Turkman Gate, Delhi, within the jurisdiction of PS Chandani Mahal, the accused persons in furtherance of their common intention committed house trespass by entering into the house of complainant Badru Nissa which was in possession of one Rahat Hassan, tenant of Badru Nissa. Hence, the criminal proceedings were initiated in the present matter upon a complaint given by complainant Badru Nissa on 16.12.2010.
3. After completion of investigation, IO filed the chargesheet, in the court on 28.05.2011 alleging offence u/s 448/34 IPC. On the same day itself, cognizance was taken by the court and accused persons were summoned in the court. Thereafter, upon appearance of accused persons in FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 2 of 18 PS : Chandani Mahal the court, copies of the chargesheet and annexed documents were supplied to the accused persons u/s 207 Cr.P.C. on 06.09.2011.
4. Thereafter, charge for the offence punishable under Section 448/34, IPC was served upon the accused persons on 14.12.2012 after giving due hearing to both the sides. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed trial. Accordingly, matter was taken up for recording of Prosecution Evidence.
5. The prosecution has examined as many as 11 witnesses to prove its case against the accused persons amongst whom six are public witnesses including the complainant Badrunissa. In order to reach a just decision it is important to carefully peruse and evaluate the testimonies of all the Prosecution witnesses and accordingly, the same have been discussed in the following paragraphs.
5.1. PW-1 Smt. Badrunissa: She is the most important witness to the case as she is the complainant in this matter and owner of property No. 2198, Pahari Bhujla, Delhi which has allegedly been trespassed by the Accused persons. She deposed that she had given one portion of her said property to Sh. Sayyed Rahat Hasan on rent, however, one day when she FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 3 of 18 PS : Chandani Mahal visited her above said property after death of the said tenant, she found that accused Shakeel, Wakeel and Asma had wrongfully trespassed the same and taken the possession of the same. She further stated that when she questioned their conduct of putting their lock in her portion of the property and not informing her about the death of her tenant, they misbehaved with her. Hence, she reported the matter to the police vide her written complaint Ex. PW-2/A. She also deposed that she had shown her portion of property which had been illegally locked by the accused persons to the IO and at her instance police had prepared the site plan. She also exhibited on record the rent receipt issued by her to her tenant Rahat Hassan (Mark X), photographs of her property which had been allegedly illegally locked by the accused persons (Mark Y), the original documents relating to her property i.e. Registration form, sale deed [Ex. PW-1/B. (OSR)].
During her cross-examination, she admitted that no written agreement was entered between Sayyad Rahat Hasan and her regarding the tenancy but she used to issue rent receipts. She also added that she never visited the property to collect the rent and her son used to collect the same. She could not recollect as to when she lastly received the rent from her tenant but added that the same could be seen from the rent receipts and the FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 4 of 18 PS : Chandani Mahal same was November. Further, she deposed that she had visited her property after five days after death of her tenant, who had expired on 28.11.2010. She further stated that police had not recorded the statement of any of the witnesses in her presence. She denied the suggestion that when she visited the place of incident during investigation, the lady Asma Parveen was residing there though she admitted that one Asma Parveen had filed a civil suit against her on 15.01.2011.
5.2. PW-2 Dr. M.D. Bassi: He is a public witness whose residence is at house no. 1564, Pahari Bhojla, Turkman Gate, Delhi which is situated opposite to property no. 2198, Pahari Bhujla, Delhi. He deposed that on the ground floor of the property no. 2198, two persons namely Mohd. Zuber and Asim ran their shop while on the first floor of said property, half portion was owned by Bilkis Begam who resided there with her sons accused Shakeel and Wakeel and daughters and other half portion of the first floor of this property was possessed by one Rahat Hassan as a tenant of complainant Badru Nissa.
During his cross-examination, he turned completely hostile to the Prosecution case and admitted it to be correct that he had never visited property no. 2198, Pahari Bhojla, Delhi. He further admitted that he was FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 5 of 18 PS : Chandani Mahal not aware as to who were the residents of property no. 2198, Pahari Bhojla, Delhi. He also admitted that he was not aware about the fact that property no. 2198, Pahari Bhojla, Delhi was built up to how many storeys. 5.3. PW-3 Mohd. Asim: He deposed that he is running a general store in a shop situated at H. No. 2198, Pahari Bhojla, Turkman Gate, Chandani Mahal for last 11-12 years on rent and the owner of the said shop is one lady whose name he could not recollect. He added that one person namely Rahat Hassan was residing in the said property at first floor and after his death police officials came at his shop and conducted inquiries from him. He further deposed that both accused persons were residing at aforementioned house and he had seen both accused persons going with Rahat Hussain whenever he fell ill.
During his cross-examination by Ld. APP for the State he stated that he was not aware as to how many people used to reside upstairs in that building as he did not visit upstairs. He denied the suggestion of Ld. APP for the State that he had stated to the police that after death of Rahat Hassan the accused persons put lock on the property of Rahat Hassan. During his cross-examination by Ld. Defence Counsel, he admitted it to be FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 6 of 18 PS : Chandani Mahal correct that he had neither visited the place of the incident nor police had recorded his statement.
5.4. PW-4 Sh. Munaf Mansoor: He deposed on the lines of PW3 and stated that he was running a shop of handicraft at property bearing no. 2198, Ground floor, Pahari Bhojla, Turkman Gate, Delhi. He stated that Rahat Hassan had died in the year 2010. He added that he had no knowledge about the case.
He denied that police had recorded his statement though stated that police had conducted inquires from him. He could not bring any relevant evidence on record with respect to trespass by the Accused persons.
5.5. PW-5 Mohd. Zuber: He stated that he has a meat shop at 2198, Pahari Bhojla, Delhi. He added that one Rahat Hussain had a room above his meat shop at the above mentioned address of the shop and was using this premises on rent. He also stated that the landlord of the said premises including his shop and above mentioned room was Badrunissa. He denied having any knowledge of the case.
He denied that police had recorded his statement though stated that police had conducted inquires from him. He also could not bring any FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 7 of 18 PS : Chandani Mahal relevant evidence on record with respect to trespass by the Accused persons as he turned hostile and denied all the suggestions of Ld. APP for the State.
5.6. PW-6 Aziz Mansoori: He also deposed that he is running a small shop at property bearing no. 2198, ground floor, Pahari Bhojla, Delhi and added that he is the owner of the said shop. He stated that the accused Shakeel Ahmad and Wakeel Ahmad were residing at the first floor of the premises bearing no. 2198, Pahari Bhojla with their respective families. Further, he stated that one Rahat used to resides in the property situated infront of the above mentioned property who had already expired. He denied knowing any person by the name of Bilkis Begam. He denied having any other knowledge about the case.
Like PW3 to PW5, he also denied that police had recorded his statement. Hence, he also turned hostile to the Prosecution case. 5.7. PW-7 Ct. Niraj: He has deposed that on 27.01.2011 at about 2.15 pm while he was near main bazar Turkman Gate, Near Badi Masjid, he met with ASI Surender Singh who had taken him to the spot i.e. H. No. 2198, Pahari Bhojla, Turkman Gate where they met with one Bilkis Begam and IO prepared the site plan at her instance. He added that IO had FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 8 of 18 PS : Chandani Mahal recorded the statement of witnesses and searched for accused persons namely Wakeel Ahmad and Shakil Ahmed who could not be found.
During his cross-examination, he stated that he did not know the name of witnesses whose the statement was recorded by the IO. 5.8. PW-8 Ct. Naresh Rathee: He deposed that on 05.02.2011 he joined investigation alongwith IO and witnessed the arrest and personal search of Accused Shakeel Ahmed and Accused Wakeel Ahmed as they had surrendered before the court. He identified on record the arrest memos and personal search memos of the Accused persons and exhibited them as Ex. PW8/A to Ex.PW8/D. 5.9. PW9 Retd. HC Karam Vir Singh: He was the duty officer in the concerned PS on 27.01.2011 and deposed with respect to registration of FIR no.08/11 u/s 448/34 IPC PS Chandni Mahal. He exhibited the copy of FIR register on record as Ex.PW9/A and endorsement made on Rukka as EX.PW9/B. 5.10. PW10 Retd. SI Surender Singh: He was the IO of the case and deposed that upon receiving of Complaint Ex.PW2/A, after registration of FIR u/s 448/34 IPC, on 24.12.2010, he went to the spot of the incident i.e. H. No. 2198, First floor, Pahari Bhojala, Turkman Gate, FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 9 of 18 PS : Chandani Mahal Delhi and prepared site plan at the instance of the complainant i.e. Ex.PW10/A. He added that he had recorded statement of complainant as well as other witnesses i.e. Md. Bashid, Asim, Zuber, Munaf and Aziz Mansoori. Further, he stated that on 05.02.2011, further investigation of the case was marked to SI Dheeraj Singh. He further deposed that on 01.03.2011, investigation was again marked to him and on 12.03.2011 he conducted interrogation from the Accused persons. He added that on 13.04.2011, he forwarded a letter to Bhumi Bhawan Department for ascertaining the ownership of the property but response of the letter has not been mentioned by him. Further, he stated that complainant did not produce any ownership document to him and stated that she shall produce the same in the court. He affirmed filing of the rent receipt Mark A by the Complainant and Photographs Mark X. Lastly, he stated that upon completion of investigation he filed the charge-sheet in the court. 5.11 PW11 Insp. Dheeraj Singh: He was the IO of the case for a brief period and deposed only with respect to arrest and personal search of the accused persons upon their surrender in the court vide memos Ex.PW8/A to Ex.PW8/D. FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 10 of 18 PS : Chandani Mahal 5.12 It is pertinent to note that all the witnesses have correctly identified the accused persons in the court even though most of the witnesses have turned hostile with respect to the occurrence of the alleged incident of trespass.
6. After examination and cross-examination of all the witnesses as aforesaid, prosecution evidence was closed on 13.02.2020. Before Statement of both accused persons could be recorded u/s 313 Cr.P.C., Accused Wakeel Ahmed expired and proceedings were abated with respect to him on 15.02.2021.
Thereafter, Accused Shakeel Ahmed was examined U/s 313 Cr PC r/w Section 281 Cr. PC on 06.10.2021. He denied all the allegations against him and stated that he had been falsely implicated. When questioned as to whether he was wanted to lead evidence in his defence, Accused Shakeel Ahmed answered in negative and accordingly, the matter was fixed for final arguments.
7. Ld. APP for the State argued that the prosecution has proved its case beyond all reasonable doubts as the identity of the accused has been duly established by his identification by the Prosecution witnesses. It was further argued on behalf of State that all the ingredients of the offence u/s FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 11 of 18 PS : Chandani Mahal 448 IPC have been proved by the prosecution with the unfettered testimony of the Complainant and hence, the guilt of the accused has been proved. Therefore, it is prayed on behalf of State that the accused may be convicted and most stringent punishment be given to him.
On the other hand, Ld. Defence counsel vehemently opposed the submissions of Ld. APP for the State stating that the prosecution has failed to prove its case against the accused beyond reasonable doubts. He added that all the independent prosecution witnesses have turned hostile to the case put forward by Prosecution which itself suggests the falsity of the allegations. Arguing that no cogent and reliable evidence has been brought by Prosecution on record against the Accused, Ld. Counsel for the Accused strongly pressed upon his acquittal.
Rival contentions of the parties have been patiently heard and record has been carefully perused.
Appreciation of Evidence in the light of relevant legal Provisions:
8. In the present case, the Accused has been charged for the offence punishable under Section 448 IPC. Section 448, IPC prescribes punishment for "House Trespass". Section 442,IPC defines House Trespass as follows:
FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 12 of 18
PS : Chandani Mahal 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 "house- trespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
8.1. A bare perusal of the provision brings forth that the pre-
requisite for completion of this offence is the commission of Criminal Trespass. As to what is criminal trespass has been defined in Section 441, IPC as follows:
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".
In view of the above provision, the first pre-requisite for completion of this offence is that the Complainant must have been in the possession of the property in which alleged trespass has taken place. Second pre-requisite is that the Accused must have entered the premises of the Complainant with an intent to commit an offence or to insult or annoy the complainant.
8.2. The Hon'ble Himachal Pradesh High Court in the matter FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 13 of 18 PS : Chandani Mahal titled as Sant And Anr. vs The Union Of India [AIR 1962 HP 1] , referring to first part of criminal trespass as defined above, held that:
10. On analysis the following appear to be essential ingredients of that part: (1) Entry into or upon property in the possession of another. (2) Such entry should be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
9. Coming now to the facts of the case, even though Complainant Badrunissa has alleged criminal trespass by the accused persons upon her property, she has not been able to bring forth her case with enough supporting evidence to prove her allegation. Prosecution witnesses, even though a great deal in quantity, have not been able to bring quality evidence on record to prove the Prosecution case. The case of the Prosecution fails to establish the guilt of the Accused persons on account of following reasons:
9.1. Possession of the Property proved by the Complainant: The requisite for proving the offence of trespass is to prove the possession of the property. Complainant has alleged that she had given the property in question on rent to one Rahat Hasan and therefore, she was in constructive possession of the property, more so after the death of the tenant. However, neither any rent agreement has been brought on record nor any original FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 14 of 18 PS : Chandani Mahal rent receipt. Photocopy of one document claimed to be rent receipt has been placed on record, however, the admissibility of the same is questionable being a secondary piece of evidence. Moreover, Complainant has stated during her testimony that her son used to collect the rent, however, he has not been made a witness in this case.
Hence, the very possession of the property in question by the Complainant is questionable.
9.2. Entry of the Accused on the alleged property not proved:
Complainant has not denied that she had given a portion of the first floor of the property on rent to the Accused persons, however, her grievance is that they entered into and took over the possession of portion not given to them on rent. Not even a single witness apart from the Complainant has deposed with respect to entry of the Accused on the alleged portion of the property. It is an admitted fact that Complainant did not reside at the said property and hence, the persons living in an around the property were better equipped to answer as to whether Accused persons trespassed upon the property of the Complainant or not. PW2 to PW6 i.e. the residents and neighbours of the building at 2198A, Pahari Bhojla, Chitli Qabar, Delhi have admitted that Accused persons as well as Rahat Hasan used to reside FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 15 of 18 PS : Chandani Mahal at the given address on first floor, but none have deposed that Accused persons had put their locks or trespassed upon the portion of property in which Rahat Hasan was residing. To the utter dismay of Prosecution, these witnesses have even denied that their statements were recorded by the IO. Hence, their credibility comes under question.
Even though photographs (Mark Y) have been placed on record with respect to the lock put on gates of a property, nothing is visible from the said photographs as to who has put the lock and taken the possession. Rather, from the photographs it is not even apparent as to which is the property in which lock has been put. The photographs speak nothing in support the Prosecution case as they merely show two iron gates clad with one lock. In the absence of any specific eye-witness to the putting of lock by the Accused persons on the alleged property, the commission of offence of trespass by the Accused becomes highly questionable.
9.3. Accused has not been arrested from the spot: It is already mentioned above, none of the neighbors residing in the property have seen the Accused residing in the portion of the Complainant or putting locks thereon. It is pertinent to note that even the IO did not find the Accused in FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 16 of 18 PS : Chandani Mahal the property of the Complainant and Accused persons themselves came to the court and surrendered whereupon they were arrested. Hence, not even a single person has witnessed the presence of Accused in the property of the Complainant.
10. From the above discussion, there remains no scope of doubt that Prosecution has absolutely failed to prove the commission of house trespass by the Accused as none of ingredients of the offence i.e. possession of the property by the Complainant or entry thereon by the Accused, has been proved. All the independent public witnesses have turned hostile and the testimony of the Complainant does not weigh enough to justify conviction of the Accsued.
Conclusion
11. In view of the discussion held above, on account of lack of consistency in the testimonies of the Prosecution witnesses, lack of sufficient proof of possession of the Complainant over the alleged premises as well as lack of any evidence of entry by the Accused in the portion of the Complainant, it is apparent that Prosecution has miserably failed in discharging its duty of proving criminal trespass by the Accused. FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 17 of 18 PS : Chandani Mahal
12. Therefore, keeping in view the overall facts and circumstances of this case, this court is of the considered view that the Prosecution has failed to discharge the burden imposed upon it by law of proving the guilt of the Accused beyond reasonable doubts. Accordingly, Accused Shakeel Ahmed is held not guilty and hereby acquitted of the charges framed against him U/s 448/34 IPC in the present case.
ANNOUNCED IN THE OPEN VIDHI Digitally signed
by VIDHI GUPTA
COURT ON 19.04.2022 GUPTA Date: 2022.04.19
ANAND
ANAND 18:01:01 +0530
(VIDHI GUPTA ANAND)
Metropolitan Magistrate-08 (Central)
Tis Hazari Courts, Delhi.
[This judgment contains 18 signed pages]
[This judgment has been directly typed to dictation.] FIR No. 08/11 State Vs Shakeel Ahmed and anr. Page 18 of 18 PS : Chandani Mahal