Delhi District Court
State vs Ram Chander on 19 March, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, METROPOLITAN
MAGISTRATE-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-000812-2015
IN THE MATTER OF:
CR Cases 2033179/2016
STATE Vs. RAM CHANDER
FIR no. 1524/2014(Mehrauli)
U/s 447 IPC & 26(d) Indian Forest Act
JUDGMENT
A) Sl. No. of the case : CR No. 2033179/2016 B) The date of commission of : 25.08.2014 offence
C) The name of the complainant : Ram Chander Manjhi, Forest Guard, Base Division, DCF, Mandir Marg, Delhi.
D) The name and address of : Ram Chander, S/o Sh. Ramphal, R/o accused Village Chandan Hulla, South District, New Delhi.
E) Offence complained of : Sections 447 IPC & Section 26 (d)
Indian Forest Act
F) The plea of accused : Not Guilty
G) Final Order : Acquittal
H) The date of such Order : 19.03.2024
DATE OF INSTITUTION : 22.08.2015
DATE OF FINAL ARGUMENTS : 05.03.2024
DATE OF JUDGMENT : 19.03.2024
FIR No. 1524/2014 State Vs. Ram Chander Page No. 1 of 14
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA Date: 2024.03.19
16:53:55 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State against accused namely Ram Chander, S/o Sh. Ramphal. As per the charge-sheet, on 25.08.2014 at unknown time at Khasra no. 529, Ridge Land, Gumath Mandir, Maidangarhi, New Delhi within the jurisdiction of PS Mehrauli, accused entered upon the abovesaid property of Govt. Ridge land with intent to commit an offence or to intimidate, insult or annoy the Forest Department and thus, accused thereby committed an offence punishable u/s 447 IPC. Further, on the aforesaid date, time and place, accused trespassed upon the abovesaid property of Govt. Ridge land and thereby committed an offence punishable u/s 26 (d) of Indian Forest Act.
2. On the basis of the charge-sheet, the Court took cognizance of the offences and on the appearance of the accused persons, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. The Court framed the charge against the accused for offences punishable under Sections 447 IPC and Section 26 (d) of Indian Forest Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
THE TRIAL PROCEEDINGS
3. For the purpose of prosecution evidence in the matter, the following witnesses were examined by the State:
(i) PW-1 Sh. Ram Chander Manjhi;
(ii) PW-2 Sh. Ashok Kumar;
(iii) PW-3 Sh. Ct. Sandeep;
(iv) PW-4 Sh. ASI Bhagat Singh; and
FIR No. 1524/2014 State Vs. Ram Chander Page No. 2 of 14
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA Date: 2024.03.19
16:54:05 +0530
(v) PW-5 Amit Kumar.
PROSECUTION EVIDENCE
4. PW 1 Sh. Ram Chander Manjhi deposed that on 25.08.2014, he was posted as a Security Guard at City Forest, Mehrauli Range. On that day, he had given a letter to the Deputy Range Forest Officer regarding the encroachment by accused. The same is Ex. PW-1/A. IO had also prepared the site plan at his instance and same is Ex. PW-1/B. Witness identified the accused before the Court.
5. PW-1 Sh. Ram Chander Manjhi, in his cross-examination, has deposed that he had joined his service in the year 1980 as security guard and first joining was in Mehrauli range. He remained at Mehrauli Range since 1980 till 2016. He further deposed that he did not know accused Ram Chander personally. He deposed that at the time when he was in Mehrauli range, the area of the said range was covering Pul Prahlad Pur, Neb Sarai & Maidangarhi. At that time, his duty hours were from 09.00 AM to 05.00 PM. He stated that while roaming around the said ridge area, he had noticed the Gumath Mandir in the year 2009.
6. PW1 further stated in his cross examination that he had identified the area in question pertaining to the ridge by pointing out of the Deputy Range Officer. He stated that the DRO pointed out by a finger that the said area is a ridge and also showed documents in this regard. He admitted that there was no demarcation boundary at the ridge land at the relevant time. He deposed that he had mentioned the name of accused as 'Baba Ram Chander'. He came to know about the name of accused after enquiry from the public persons at the spot. He deposed that he did not know the names of those public persons. He further deposed that accused had FIR No. 1524/2014 State Vs. Ram Chander Page No. 3 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:12 +0530 built up one 'hut' in the Mandir. He did not click the photographs or made any video of the said hut. He deposed that he had tried to stop accused Ram Chander for cattle farming.
7. PW-1 Sh. Ram Chander Manjhi was asked by Ld. defence counsel whether he tried to stop the accused from making hut upon which PW1 replied that the hut was already there prior to his tenure. He deposed that he had informed to Dy. Ranger Officer regarding making of hut and of trespass by the accused Ram Chander. He deposed that the site plan was prepared by the police officials and he briefed them.
8. PW-2 Sh. Ashok Kumar has deposed that on 26.08.2014, he was posted as Deputy Range Forest Officer at Forest Department, GNCT, Delhi. He had given complaint on the basis of the report of Sh. Ram Chander Manjhi, Forest Guard for illegal construction / encroachment by the accused. He had given the complaint Ex. PW-1/A bearing his signatures at point B to DCP (South), DCF (Dy. Conservator of Forest), South, ACP and SDM.
9. PW2 Sh. Ashok Kumar, in his cross-examination, has deposed that he was posted as DRO in Mehrauli Range from the year 2012. In the Mehrauli Range, the area covered were Maidangarhi, Neb Sarai, Chattarpur, City Forest Hauz Rani & Pul Prahladpur. He also remained Forest Guard for the Mehrauli Renge since 2010 till 2012. He had been told by his senior officials about the ridge land verbally. The demarcation in respect thereof was also available. No fencing has been done with respect to demarcation of ridge land area. He had again said that he had no proper knowledge about the same. There was no sign board in respect of ridge land till his FIR No. 1524/2014 State Vs. Ram Chander Page No. 4 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:19 +0530 tenure there. He did not know whether there was any other area in the ridge land apart from the Forest land. During his tenure, he noticed one Ghumat Mandir in the said area. As per the people of the local area, the temple is about 10-15 years old or may be older than that. In the year 2012, he came to know about the temple.
10. PW2 Sh. Ashok Kumar, in his cross-examination, has further deposed that he used to take round in the area. In the year 2010, when he was posted as Forest Guard, he had noticed the aforesaid Ghumat Mandir and also noticed the fencing around the Mandir and the room of Pujari. His Senior Official had informed him that the said Mandir is in the area of ridge land. He had noticed one hut in the said area in the year 2014, when Forest Guard Ram Chander Manjhi informed him about the same. He had visited the Ghumat Mandir area where the said hut had been made. He did not click any photographs or make any video of the same. He came to know about the hut on 25.08.2014. The Forest Guard Ram Chander Manjhi came under his supervision in the year 2012. He again said in the year 2014. He did not show the area of duty to Ram Chander Manjhi, the Forest Guard. He voluntarily deposed that as he was one of the old Forest Guard and was well aware about the area. He did not notice any construction work going on there.
11. PW2 Sh. Ashok Kumar, in his cross-examination, has further deposed that the Forest Guard Ram Chander Manjhi complained to him about the hut in writing, which he forwarded to aforesaid Sr. Officials. He personally did not issue any notice to accused Ram Chander in respect of aforesaid hut. DCF (South) is the competent authority to issue the notice. He deposed that he was not aware whether after he made the complaint, the DCF (South) had issued any notice to accused Ram Chander or not. He had addressed the complaint Ex. PW-1/A to the SHO, PS FIR No. 1524/2014 State Vs. Ram Chander Page No. 5 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:24 +0530 Mehrauli. He did not remember if any police official had come to him or he went to PS Mehrauli and recorded his statement or not. He deposed that the said hut had already been constructed so the question of their stopping the same did not arise. He deposed that the present FIR was lodged on the basis of his report. The site plan was not prepared in his presence.
12. PW-3 Ct. Sandeep deposed that on 18.06.2015, he joined the investigation of present case alongwith HC Bhagat Singh and went to Ghumhat Mandir at Maidangarhi and found one hut (made of grass) and one person was also there. On enquiry, accused disclosed his name as Ram Chander. IO enquired about the property of said mandir, however, accused did not produce the same. Thereafter, IO HC Bhagat Singh arrested accused vide memo Ex. PW3/A. IO released accused on police bail as per law. Witness had correctly identified the accused in the Court.
13. PW3 Ct. Sandeep, in his cross-examination, has deposed that he saw old temple when he reached at the spot to enquire about the complaint. He deposed that he came to know that the temple is very old from the people whom he enquired. He did not click any photographs of the said temple. He deposed that he did not know whether the said hut was recently built or not. He further deposed that he did not take any statement of any people who were present there.
14. PW-4 ASI Bhagat Singh has deposed that on 27.08.2014, he was posted as Head Constable at PS Mehrauli. On that day, the investigation of the present case was marked to him. During the investigation of the present case, on 05.11.2014, he had prepared the site plan at the instance of Ram Chander Majhi which is Ex.PW- 1/B. On 15.05.2015, he had given a notice under Section 91 CrPC to the Deputy FIR No. 1524/2014 State Vs. Ram Chander Page No. 6 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:30 +0530 Conservative Forest officer, South which is Ex PW-4/A. Thereafter, he had seized four documents vide memo Ex PW-4/B and those documents are Sijra, Khasra No 529, Maidan Garhi village, Delhi, Girdawari Khasra No.529, Khatauni No.529 and Gazette Notification No. 12 dated 04.04.1996.
15. PW-4 ASI Bhagat Singh has further deposed that all the documents were shown to the witness and correctly identified by the witness and the same are Ex A- 5 (running into 3 pages) and Ex A-4 (running into 4 pages) respectively. On 18.06.2015, he alongwith Ct. Sandeep had gone to the place of incident, where he met accused Ram Chander and after interrogation, he had arrested accused vide memo Ex.PW-3/A. As the offence was bailable, accused was released on bail. He had recorded the statement of witnesses u/s 161 CrPC. After completing the investigation of the present case, he had prepared the chargesheet and filed it before the court. He has correctly identified accused before the Court.
16. PW4 ASI Bhagat Singh, in his cross-examination, has deposed that he had joined PS Mehrauli on 14.01.2014. He again said February, 2014. He deposed that he had received Ex. PW-1/A along-with the FIR from Duty Officer of PS Mehrauli. He did not receive any notice of Forest Department addressing to accused along- with the complaint Ex. PW-1/A. He further deposed that he had read the contents of the FIR. He had visited the Ghumat Mandir with the complainant. He further deposed that he did not mention or draw East, West, North and South directions on Ex. PW-1/B. He had seized the documents through memo Ex. PW-4/B and these documents were handed over to him by one clerk of the Forest Department, South Range. During investigation of the case, he did not get any notice which was served to accused by department of forest. He had prepared the site plan which is Ex. PW-
FIR No. 1524/2014 State Vs. Ram Chander Page No. 7 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:36 +0530 1/B at the instance of Ram Chander Manjhi. Ram Chander had taken him to the mandir. He deposed that he did not remember whether he had clicked any photographs or made any video of the mandir.
17. PW-5 Sh. Amit Kumar, Patwari, SDM Officer that he had brought the original Khatooni regarding Khata No. 198 of Village Maidangarhi (year 1990-91), copy of the Khatooni is Ex. PW-5/A (OSR) [running into six pages], copy of the Khasra Girdwari year 2019-2020 Village Maidangarhi regarding Khasra No. 529 (one page only) and the same is Ex. PW- 5/B (OSR), copy of the Field Book Village Maidangarhi regarding Khasra No. 529 (one page only) and the same is Ex.PW-5/C (OSR). He has also brought Shajra, Maidangarhi and he had not brought the copy of the Shajra. The Shajra, Maidangarhi is in torn condition and the original 'Massavi' is at Central Record Room, Tis Hazari Court Complex, Delhi. He further brought the scanned copy of the Masavi, village Maidangarhi. He stated that the authenticity of the said photocopy can be checked from the Record Room, Tis Hazari Court Complex.
18. PW5 was cross examined by Ld. counsel for the accused. Ld. counsel asked PW5 to point out Khasra no. 529 in the Masavi. On perusal of the document, witness marked the area at point A. After referring to the field book, the witness was asked whether numerals '529' are visible? He replied in the affirmative. However, the Court observed upon perusal of Mark A and point A therein, that numerals '529' were not visible. PW5 admitted that Mark A has not been stamped by the issuing authority. He further admitted that 'use of land' is not mentioned in the said document.
FIR No. 1524/2014 State Vs. Ram Chander Page No. 8 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:42 +0530 STATEMENT OF ACCUSED & FINAL ARGUMENTS
19. Upon conclusion of prosecution evidence, statement of accused namely Ram Chander under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Accused chose not to lead defence evidence.
20. Thereafter, the final arguments were heard. Ld. Counsel for accused has vehemently argued that the accused was already in possession of the site in question. It has been stated that the accused was serving as a Mahant in the said Gumath Mandir. It is argued that the temple existed in the ridge area since years and the accused never trespassed into the government property. Ld. Counsel has invited the attention of this Court to the testimonies of PW-1 and PW-2 to support his arguments. He has lastly argued that the property should be in the possession of the complainant for constituting a crime under Section 447 IPC or under Section 26
(d) of the Indian Forest Act. He has also argued that no video or photographs of the site in question has been placed on record for the purpose of proving the factum of trespass. Ld. Counsel has thus argued that the accused be acquitted of both the charges.
21. Ld. APP for the State has relied upon the testimonies of the prosecution witnesses and submitted that the testimonies are majorly consistent. She has prayed for conviction of the accused for the offences u/s 447 IPC and Section 26 (d) of the Indian Forest Act.
FIR No. 1524/2014 State Vs. Ram Chander Page No. 9 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:54:47 +0530 COURT OBSERVATIONS
22. At the outset, the accused Ram Chander has been accused of commission of the offence of 'Criminal Trespass' for the alleged act of entering into the Govt. Ridge land in Khasra bearing no. 529, Ridge Land, Gumath Mandir, Maidangarhi, New Delhi. He has further been charged with offence u/s 26 (d) of the Indian Forest Act. For the sake of easy reference, the bare provisions contained in Section 447 IPC and Section 26(d) of Indian Forest Act are being reproduced herein:
"447. Punishment for criminal trespass.--Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both."
"26. Acts prohibited in such forests (1) Any person who ....
(d) trespasses or pastures cattle, or permits cattle to trespass;...
shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid."
23. Thus, in order to constitute an offence under Section 447 IPC, it needs to be necessarily determined whether: (i) the possession of the property was with the complainant/victim; (ii) the accused entered into the property of the complainant, or having entered therein unlawfully remained in such property; and (iii) such entering was with an intention to commit an offence or to intimidate, insult or annoy the complainant/victim. All of these ingredients must be duly proved for constituting an offence of 'criminal trespass'. Similarly, it needs to be necessarily proved that the accused was trespassing into the property in question or pasturing cattle or permitting the cattle to trespass for attracting the liability under Section 26
(d) of the Indian Forest Act.
FIR No. 1524/2014 State Vs. Ram Chander Page No. 10 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA 16:54:53 +0530 Date: 2024.03.19
24. At the outset, it is noted that the complaint i.e. Ex. PW-1/A was originally filed by the Forest Guard i.e. Ram Chander Manjhi. The original complaint i.e. Ex. PW-1/A relates to building of a hut (" ghas fus ki jhopdi") by the accused in Khasra no. 529, Gumath Mandir, Baba Ramchander Village, Chandanhola. It is noted that the complainant only mentioned a 'Baba' and did not name the accused with his exact name. The endorsement made by the Deputy Range Forest Officer on Ex. PW-1/A also does not name the accused but only mentions him as 'aforesaid person'. Hence, it is prima facie noted that the accused was never named in the original complaint but only referred to as 'Baba'.
25. Upon perusal of the testimony of PW-1 / complainant, it is noted that the complainant has himself admitted that he had noticed the presence of 'Gumath Mandir' since the year 2009. The complainant was unable to prove any documents regarding his posting or regarding the demarcation of the ridge land. He has himself admitted in the cross-examination that he identified the area in question pertaining to the ridge upon pointing out by the Deputy Range Officer. It is surprising that PW-1 identified the ridge area in question upon 'pointing out by a finger' by the Deputy Range Officer. PW 1 has admitted that there was no demarcation boundary at the ridge land at the relevant time.
26. It is further noted from the testimony of PW2 / Retd. Deputy Range Officer that he had also noticed the Gumath Mandir earlier in the said area. As per his testimony, the temple was about 10-15 years old or may be older than that. He has admitted that he saw the temple in the year 2010 itself and noticed the fencing around the temple and the room of the pujari. He has admitted that no fencing was done for the purpose of demarcation of the ridge land and no signboard was also FIR No. 1524/2014 State Vs. Ram Chander Page No. 11 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:55:02 +0530 placed for indicating the ridge land.
27. The aforesaid testimonies of PW1 / Forest Guard and PW-2 / Retd. Deputy Range Officer are self-indicative of the fact that Gumath Mandir may have been present at the location much prior to the date of lodging of the FIR. From the FIR bearing no. 1524/2014 i.e. Ex. A2, it can be noted that place of occurrence has been mentioned as 'Khasra no. 529, Ridge Land, near Gumath Mandir, Maidangarhi'. From the FIR, it appears that the prosecution was attempting to refer to an area near the Gumath Mandir. However, the testimonies of PW-1 and PW-2 refer to the place of occurrence as a hut within the area of Gumath Mandir. The aforesaid discrepancies raise a considerable doubt regarding the exact spot at which the alleged trespass was committed.
28. It is further noted that the Patwari (from the office of SDM, Saket) was summoned by this Court for deposing with respect to the relevant documents concerning Khasra no. 529. When the Patwari deposed as PW5, he brought photocopy of the Masavi for the village Maidangarhi. When PW-5 was asked to point out the Khasra no. 529 in the Masavi (Mark A), he pointed out the land at point A. However, the Court was constrained to observe during the recording of his testimony that numerals '529' are not even visible at point A of the Masavi. It was further noted that the Masavi was not even stamped by the issuing authority. This raises further doubts with respect to the exact identification of Khasra no. 529 and its location in the ridge area.
29. The aforesaid discrepancies regarding identification of the spot at which the alleged trespass had occurred demolishes the case of the prosecution at the very inception. For the purpose of proving an offence under Section 447 IPC or Section FIR No. 1524/2014 State Vs. Ram Chander Page No. 12 of 14 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA 16:55:08 +0530 Date: 2024.03.19 26 (d) of the Indian Forest Act, the prosecution is required to first and foremost prove that the spot at which the alleged hut was constructed fell within the possession of the Forest Department. From the documents produced before this Court and testimonies of the prosecution witnesses, it can be noted that the prosecution has failed to specify or identify the exact location at which the hut was constructed. No photographs or videograph of the hut or the ridge land have been placed on record. Further, it appears from the testimony of PW1 and PW2 that the accused and the Gumath Mandir were already present in the area much prior to lodging of the FIR.
30. The Court is also inclined to further note that there is no evidence whatsoever on record regarding the mens rea for the purpose of the offence i.e. the intention for committing an offence or to intimidate, insult or annoy the complainant/victim. Hence, none of the elements that constitute the offence of trespass have been duly proved by the prosecution. Lastly, there is no evidence whatsoever that the accused was 'pasturing his cattle' on the alleged site. There is no ocular or testimonial evidence regarding presence of any cattle belonging to the accused.
31. It is the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Reference may be made to the case of Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) FIR No. 1524/2014 State Vs. Ram Chander Page No. 13 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:55:14 +0530 R.C.R.(Criminal) 662).
32. In view of the observations and findings delineated in the preceding paragraphs, this Court is of the considered view that the prosecution has failed to prove the guilt of accused person beyond reasonable doubt, the benefit of which accrues in his favour. Accused person Ram Chander S/o Sh. Ramphal is accordingly acquitted for the offences under Section 447 IPC and Section 26 (d) of the Indian Forest Act.
33. Let bail bonds / surety bonds be furnished by the accused person under Section 437A, CrPC.
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA 16:55:22 +0530
Date: 2024.03.19
Announced in Open Court (AVIRAL SHUKLA)
on 19.03.2024 MM-05,South District/19.03.2024
Certified that this judgment contains 14 pages and bears my signatures at each page. Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.03.19 16:55:27 +0530 (AVIRAL SHUKLA) MM-05,South District/19.03.2024 FIR No. 1524/2014 State Vs. Ram Chander Page No. 14 of 14