Delhi District Court
2. Title Of The Case: : State vs Jai Prakash & Ors. on 27 March, 2023
IN THE COURT OF ASHWANI PANWAR
METROPOLITAN MAGISTRATE-I (SOUTH)
SAKET COURTS, DELHI
1. Cr Case No. : 2031379/2016
2. Title of the case: : State Vs Jai Prakash & Ors.
FIR No. 499/2001 PS Malviya Nagar
3. Date of institution : 13.01.2003
4. Date of reserving Judgment : 09.02.2023
5. Date of pronouncement : 27.03.2023
JUDGMENT :
(a) The date of commission Prior to 24.06.2001
(b) The name of complainant Smt. Vandana Gosain, W/o Sh.
Y.K. Gosain, R/o 129/8, Sector 1,
PushpVihar, New Delhi.
(c) The name and address 1. Ram Pal Verma, S/o Late Sh. of accused persons Daya Ram, R/o G-62, Saket, New Delhi.
2. M.K. Dhar, S/o Late Sh. G.N. Dhar R/o House No. 401, Vasundhara Enclave, Delhi-96.
3. Kunwar Pal Singh, S/o Late Sh. Ram Swaroop, R/o J-3/79, First Floor, Khirki Extention, Malviya Nagar, New Delhi.
4. Jai Prakash, S/o Late Sh. Ami Chand, R/o 98/5, Sector-1, Pushp Vihar, New Delhi. (proceedings abated)
5. Subhash Chand Sahani, S/o Late Sh. Arjun Dass, R/o J-1/76, Gupta Colony, Khirki Extention, Malviya Nagar, New Delhi.
State v Jai Prakash & Ors. FIR No. 499/2001
(proceedings abated)
6. Krishna Prasad, S/o Nand Lal
Sharma, R/o Block No. 61,
Quarter No.11, Sector-1, Pushp
Vihar, New Delhi (proceedings
abated)
(d) The offence complained of 380/451/120B IPC
(e) The plea of the accused Not guilty
persons
(f) The final order Acquitted
(g) The date of such order 27.03.2023
THE BRIEF REASONS FOR THE JUDGMENT: -
1. As per Prosecution, all the accused persons i.e. Ram Pal Verma, M.K. Dhar, Kanwar Pal Singh, Jai Prakash, Subhash Chander Sahani and Krishna Prasad Sharma, being office bearers of Shiv Sanatan Dharam Sabha entered into a criminal conspiracy on or before 24.06.2001 for committing criminal trespass into the premises of JSJ Public School, which was being run within the premises of Shiv Sanatan Dharam Mandir, Sector 1, Pushp Vihar, New Delhi and also committed theft of the articles belonging to the complainant. After completion of the investigation, charge sheet was prepared and filed in the Court.
2. On the basis of the aforesaid charge sheet and annexed documents, cognizance was taken vide order dated 13.01.2003 and the accused persons were summoned to face trial. On appearance of the accused persons, provision of Section 207 of the Criminal Procedure Code (hereinafter referred to as State v Jai Prakash & Ors. FIR No. 499/2001 "Cr.PC") was complied with and after hearing the arguments, charge for the offence punishable under Section 380/451/120B of IPC was framed against the accused persons Ram Pal Verma, M.K. Dhar, Kanwar Pal Singh, Jai Prakash, Subhash Chander Sahani and Krishna Prasad Sharma, to which the accused persons pleaded "Not Guilty" and claimed trial.
3. In order to prove its case, prosecution examined twenty-three witnesses to substantiate the accusations against the accused persons.
4. Thereafter, the prosecution evidence was closed as no other witness was examined by the prosecution and statements of the accused persons were recorded under Section 313 Cr.PC. The accused persons submitted that they have been falsely implicated in the present case.
5. Accused M.K. Dhar examined himself as DW-1 in defence evidence. Thereafter, DE was closed.
6. During the course of final arguments, it was argued by Ld. APP for the State that the prosecution has proved its case beyond reasonable doubt and all the ingredients of relevant sections are complete and the accused persons be convicted. On the other hand, Ld. Counsel for the accused persons has argued that the accused persons have been falsely implicated in the present case and the prosecution has miserably failed to prove its case beyond reasonable doubt. I have carefully heard the submissions of the Ld. APP for the State and the Ld. Counsel for the accused persons and have perused the entire evidence on record.
State v Jai Prakash & Ors. FIR No. 499/2001
7. The accused persons have been charged for the offences punishable under section 380/451/120B IPC. The relevant provisions under which the accused persons have been charged with in the present matter are being reproduced and discussed as under: 7.1 Section 380 IPC provides punishment for committing theft in dwelling house. It states that "whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as human dwelling, or for custody for property, shall be punished with imprisonment...."
7.2 Section 451 IPC states "whoever commits house tresspass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extent to two years and shall also be liable to fine...."
While house tresspass has been defined under section 442 IPC as "criminal tresspass by entering into or remaining in any building, tent or vessels used as a human dwelling or any building used as a place for worship, or as a place for custody of property"
Further, criminal trespass has been defined under section 441 IPC as entering 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 State v Jai Prakash & Ors. FIR No. 499/2001 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. And, section 447 IPC provides punishment for criminal trespass.
7.3 Section 120B IPC defines criminal conspiracy.
8. Now, it is to be examined, analyzed and assessed as to whether prosecution case, the deposition of the complainant and the testimonies of the other prosecution witnesses are credible and reliable enough to prove the guilt of the accused persons beyond reasonable doubt. Hence, the issues to be determined in the present matter are as to whether the accused persons committed criminal trespass into the premises of the complainant and then committed theft thereat after having entered into a criminal conspiracy between themselves for commission of the aforesaid offences?
9. PW1 Ms. Primbrar is the wife of an employee of the complainant. She deposed that at around midnight of the intervening night of 23/24.06.2001, she had seen a tempo coming outside the school of the complainant and that she had seen the accused persons with the said tempo. She further deposed that some persons had went inside the school and they removed the articles (like table, chair, boards etc.) from the school and the said articles were loaded in the tempo by the accused and then they took away the said articles. She further deposed that another tempo came after around 510 minutes and thereafter, she and her husband had been to the house of the complainant to inform her about the aforesaid incident.
State v Jai Prakash & Ors. FIR No. 499/2001 9.1 In light of testimony of PW1, it is important to emphasise that PW1 had never stated in her statement recorded under section 161 Cr.PC that she had "seen" the accused persons at the spot or she had seen them with tempo or that she had seen them loading the aforesaid articles taken from the school of the complainant in the tempo. Further, PW1 was confronted on this point in her cross examination.
9.2 Apart from PW1, PW5 Sh. Munna Lal has been presented as an eye witness to the alleged incident by the prosecution. PW5 used to work as driver/employee for the complainant and he is the husband of PW1. He deposed that he had seen the tempo loaded with articles/items taken from the school and then he informed the complainant about the alleged incident after going to her place. He further deposed that the complainant had accompanied him to the school and they saw the third tempo with loaded stuff leaving. It is to be noted down that PW5 never stated and deposed that he had seen the accused persons present at the spot or as to if he had seen them taking away the articles from the school premises.
10. PW2 Ms. Vandana Gosain is the complainant. She deposed that she was informed about the alleged incident by her employee/driver PW5. She further deposed that when she had been to the spot, a tempo was loaded and the same was "being taken away at behest of the accused persons who were all present State v Jai Prakash & Ors. FIR No. 499/2001 on the date of the incident." PW5 nowhere had deposed that he had seen the accused persons present at the spot and in such circumstances, it is important as well as obvious to question the contradiction in versions of the "eye witnesses" as to presence of the accused persons. Moreover, the complainant/PW2 made only a passing reference about the presence of the accused persons at the spot and it is not the case that she had categorically deposed about their presence or that she had told about the part each of them played at the time when the alleged incident was taking place. Also, she had not stated about their presence in her statement recorded under section 161 Cr.PC and she was confronted about the same in her cross examination.
10.1 Furthermore, PW12 SI Silak Ram is the police witness who had visited the spot after he had received a call through the control room. He deposed that he had met the complainant at the spot and he was told by her about the missing articles from the premises in question. He further deposed that "she also stated that she did not see about the person who had carried her articles from the alleged place." Therefore, the complainant/PW2 was not aware as to who had taken away her articles from the school in her initial version.
11.In her cross examination, PW2 admitted that there was a lease agreement dated 18.04.2000 executed between her and the committee of the school and as per clause 7 of the same, the accused persons were allowed to visit the premises in question. In view of such an equation, how could a question of house trespass is to arise when the accused persons had a permissive right to enter and visit the premises? And, it is not to be forgotten that the presence of State v Jai Prakash & Ors. FIR No. 499/2001 the accused persons at the relevant time could not be established by the eye witnesses, in view of the discussion above.
12.Moving onto the testimony of PW3. Sh. Yuggal Kishore Gosain is the husband of the complainant and he was examined by the prosecution as PW3. He deposed that on reaching the spot, he had found 50 to 60 persons led by accused Rampal Verma, Subhash Sahani, Bhalu looting the property and loading the same in trucks and that he was threatened that he would be finished at the spot if he would not give the place.
12.1 In light of deposition of other eye witnesses i.e. PW1, PW2 and PW5, it is incredible to see that the deposition as to presence of 50 to 60 persons at the spot came from the mouth of PW3 only and none of the other aforestated witnesses ever whispered about the same. Same reasoning goes for the alleged threatening no other witness deposed as to the confrontation of the accused persons and their threatening PW3 in response. Further, in his cross examination, he made an improvement to his previous version by deposing that he had seen about 100 people gathered at the spot.
13.PW8 Sh. Vijay Kumar Tiwari deposed that he was present at the spot on the intervening night of 23/24.06.2001 at around 03:00 04:00 am. As per the story of the prosecution, the aforestated was the time when the alleged incident was taking place. PW8 deposed that, at that time, Ramayan Path was going on in the hall of Shiv Sanatan Dharam Temple. Further, he deposed in his cross examination that no theft had taken place in his presence. He also State v Jai Prakash & Ors. FIR No. 499/2001 deposed that the police had recorded his statement, however his statement was not audible to him and that the school premises in question are situated in the premises of the aforenamed temple.
13.1 It is pertinent to note that PW8 had stated in his statement recorded under section 161 Cr.PC also that he was not aware as to trespassing or theft having taken place in the premises in question. Hence, PW8 had never supported the prosecution version of the case.
14.Further, PW12 SI Silak Ram deposed that there were no articles pertaining to the school at the spot and that he had met persons namely, Bharat, Mausam Raj and Vijay Tiwari/PW8 at the spot. In his cross examination, he deposed that he was told by the aforenamed persons that the school authority had removed their articles from the school premises long back. Also, he deposed that "It is also correct that there was no 'loot paat' in the school...."
15.PW21 SI Madan Mohan is the investigating officer in the present matter. He deposed in his cross examination that "kirtan" was going on when he had reached the spot and that 2025 people were present there. He further deposed that "I did not find anything scattered on reaching the spot. I did not find any school furniture i.e. table, bench, chair and black board etc in the said hall when I reached there on receiving DD No. 4."
15.1 It has been the version of the eye witnesses and the prosecution that the articles of the school were taken away by the accused persons in tempos on the date of the alleged incident after midnight or so, in a matter of few hours. None of the police witnesses who had visited the State v Jai Prakash & Ors. FIR No. 499/2001 spot at the relevant time deposed that they had seen any article or item related to school at the premises in question and they rather deposed that "kirtan" was found to be going on at the premises at the relevant time. Keeping a note of this situation, it is hard to believe that the accused persons managed to wipe out all traces of the school being run at the premises in a matter of couple of hours only and not just that, they managed to establish the ambience for "kirtan" and "puja" at the same time.
16.In view of allegations leveled in the present matter, the statement of witness Bhisham Raj recorded under section 161 Cr.PC is also to be considered, he however, was not brought as witness before the court by the prosecution. He stated in his said statement that at around 03:00 am on 23/24.06.2001, he was attending to the call of nature in the bushes behind the temple and that he had not seen/witnessed any theft taking place nor any trespassing happening at the school premises.
16.1 Further, in a similar manner, statement of one Smt. Chander Kala was recorded under section 161 Cr.PC. She stated that the school was not being run at the premises in question from April 2001 and that the belongings of the school had already been taken away by the owner/principal of the school (i.e. the complainant).
16.2 Therefore, the prosecution, very conveniently, brought those witnesses before the court who had apparently supported the version of the complainant. Moreover, it is pertinent to note that the State v Jai Prakash & Ors. FIR No. 499/2001 witnesses who supported the version of the complainant were related to her in some way or other.
17. In view of the above discussion, this Court is of the view that prosecution has miserably failed to substantiate the allegations for the offence punishable under Sections 380/451/120B IPC against the accused persons. Accordingly, the accused persons namely Ram Pal Verma, M.K. Dhar, Kanwar Pal Singh are acquitted of all the charges levelled against them.
Digitally signed by
ASHWANI ASHWANI PANWAR
PANWAR Date: 2023.03.28
15:57:52 +0530
Announced in the open court (ASHWANI PANWAR)
on 27.03.2023 METROPOLITAN MAGISTRATE-01
SOUTH, SAKET COURT, NEW DELHI
State v Jai Prakash & Ors. FIR No. 499/2001