Delhi District Court
CT Cases/463784/2016 on 20 August, 2022
IN THE COURT OF MS SHILPI SINGH, METROPOLITAN
MAGISTRATE-02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
Date of Judgment: 20.08.2022
CT No. 463784/16
U/s 427/448/34 IPC
PS: Malviya Nagar
Complainant Ashok Mahmna s/o Sh Budhan Ram
R/o J-41C Sheikh Sarai,
Phase-II, New Delhi-17
Represented by Anoj Kumar Singh
Accused no. 1 Jagdish Prasad Mahamna s/o Sh
Budhan Ram r/o 19 Rajpur Khurd
Extension, Chhatarpur, New Delhi-
68
Accused no. 2 Kamlesh Mahmna w/o Jadish
Prasad Mahmna r/o 19 Rajpur
Khurd Extension, Chhatarpur, New
Delhi-68
Represented by Sh. Gaje Singh
Date of Offence 08.04.2010
Date of Complaint 02.11.2010
Date on which pre summoning closed 30.08.2013
Date on which inquiry u/s 202 completed 28.04.2014
and order on summoning
Date of Framing of Notice 05.07.2017
Date of commencement of evidence 12.10.2017
Date on which judgment is reserved 03.08.2022
Date of the Judgment 20.08.2022
Date of the Sentencing Order, if any NA- ACQUITTED
CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 1 of 15
BRIEF FACTS:
1. Succinctly, the case of the complainant is that his wife had been running her
office from J-42B, Sheikh Sarai, since 1995 (hereinafter called the office)
and, the accused no.1 and 2 are his relatives, i.e his elder brother and sister
in law, respectively. It is alleged by the complainant that accused no.1 had
been humiliating him and his family and accused no.2 would foment the
disagreement between the brothers and even his father, Sh Budhan Ram,
who is 88 years old, was under the influence of accused no.1 and had
colluded with him. The complainant has alleged that on 08.04.2010
(hereinafter called the date of incident), accused no.1 and 2 along with his
father and four unknown persons came to the office and smashed the
accessories kept there and were searching for valuables and when his
servant tried to stop him, they kicked him out and even threatened the tenant
of the complainant, as he was objecting to their behavior. It is the version of
the complainant that at the time of the incident, he was in Dwarka but he
immediately called the police and rushed to the office where he found his
father and accused no.1 and 2 and he inquired from his father about the act.
His father informed him that he does not know anything and that the act was
committed by accused no.1. The complainant has narrated that those 4
unknown persons had fled the spot by the time police reached and when he
went inside the office, he noticed that the lock of the drawer was broken and
Rs. 1,00,000/- was missing that he had withdrawn from bank on that very
day. The complainant has alleged that the money was looted by the accused
persons and their accomplice and despite writing repeated complaints to the
police, no action was taken by them.
2. Pre summoning evidence was lead by the complainant and he examined
himself as CW-1 along with three other witnesses. During his examination,
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he reiterated the contents of the complaint and further deposed that on the
date of the incident, the accused persons had assaulted his servant and stolen
Rs. 1,00,000/-, from his office, that were withdrawn by his servant from his
bank. He further submitted that he was in Dwarka at that point of time but
when his servant informed him, he immediately called the police and they
reached there. As per CW-1, the four accomplice of the accused persons had
fled away by the time policed had reached and instead of taking action
against the accused persons and investigating, they police registered a
complaint vide DD no. 22A and left the accused persons with a warning.
3. CW-2 was Yogesh Kumar, who is stated to be the assistant of the wife of
CW-1 and referred as, the servant by the complainant in his complaint. As
per CW-2, on the date of the incident, at about 1-1:30 pm, accused no.1
came to the place of incident along with four of his associates and destroyed
the articles kept outside the office and asked him to go outside. CW-2
submitted that he immediately called CW-1 from his mobile phone and after
10-15 minutes, police came to the spot and the accomplice of accused
persons fled. CW-2 explained that accused no.1, 2 and the father of CW-1
stayed and after 20-25 minutes, CW-1 reached the place of incident. As per
CW-2, he went to call a photographer but could not find anyone and when
he returned, he was informed by CW-1 that Rs.1,00,000/- was stolen by the
accused persons. As per CW-2, he had withdrawn Rs. 1,00,000/- on the
same day from his bank account, which he had borrowed from someone
through CW-1 and gave the money to CW-1.
4. CW-3 was Mohd. Anwar who is stated to be the tenant of CW-1. He
deposed that on the day of the incident, at about 1:00 to 1:30 pm, four
persons came to the place of incident and entered his shop that he had taken
on rent from CW-1; scattered the articles kept in the shop and damaged the
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glass and counter of the shop and kicked him out of the shop. CW-3 further
stated that when he came outside the shop, he saw accused no.1 and the
father of CW-1 standing outside, who then went inside the office of CW-1
and came outside in a few minutes. As per CW-3, when the police came, the
four associates had fled but accused no.1 and father of CW-1 were standing
there.
5. CW-4 was Smt Veena Tapish, who had deposed that on the date of the
incident, at about 1:00 to 1:30 pm, she saw accused no.1 entering the shop
of CW-3 with four persons and breaking the articles kept there and
thereafter, entering the office of CW-1, breaking the articles and glass door
and stealing some money. As per CW-4, she had a cosmetic shop in the
same building as that of CW-3 and she was also the tenant of CW-1 and
after witnessing the incident, she closed her shop and saw accused no.2 and
father of CW-1 standing outside the office of CW-1 and police reaching the
spot.
6. After the pre-summoning evidence was closed and the arguments were
addressed, the Ld. Predecessor conducted an inquiry u/s 202 CrPC. The IO
had furnished his report along with DD No. 22A, dated 08.04.2010; DD No.
57B dated 09.04.2010 and reply in 156(3) application in a case filed by the
father of CW-1, against CW-1 before the court of Ld. MM, Patiala House.
As per the inquiry report in this case, on 08.04.2010, a complaint was made
on the basis of which DD No. 22A was registered but as the complaint was
baseless and the parties were litigious and the complaint essentially being
civil in nature, no FIR was registered. Contents of DD no.22A reflect that a
quarrel had taken place at the office of CW-1. As per DD no. 57B dated
09.04.2010, the complainant had informed that no quarrel took place on the
day of the incident and he had a family dispute with accused no.1 and his
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father. Further, as per ATR filed before the Ld. MM, Patiala house Court, it
only shows that the father of CW-1 had filed a case against CW-1 and the
police was of the opinion that the said case is a counter blast to the present
case and that no cognizable offence was made out.
7. Considering the entire material, there were sufficient grounds to summon
the accused persons and accordingly, they were summoned on 28.04.2014.
Repeated attempts were made to secure their presence but the complainant
could only furnish the correct address on 07.12.2015. The accused persons
appeared before the Court on 08.04.2016, they were admitted on bail and
after hearing arguments on notice, notice was framed against them on
05.07.2017. The matter was then fixed for post charge evidence.
THE TRIAL PROCEEDINGS:
8. To bring home the guilt of the accused persons, the complainant examined
three witnesses.
9. RANK NAME NATURE OF EVIDENCE C
CW-1 Mr. Ashok Complainant
W
Mahmna
-
CW-2 Ms. Veena Eye Witness
CW-3 Ct. Sukhdev Formal witness to produce 1
document.
submitted in the post notice evidence that on the date of incident, he was not at the office and he received a call at around 12:30 pm to 1:00 pm from Yogesh Kumar (CW-2 in PSE) who informed him that the accused persons, along with his father and four unknown persons were demolishing his office and some of his shops, that he had given on rent. As per CW-1, at that time he was in Dwarka and he had called the police from there and when he CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 5 of 15 reached his office, he saw a PCR parked there and noticed that his office and the shops were in a demolished condition and the drawer of the table was broken and Rs. 1,00,000/- kept there, were missing. CW-1 submitted that he saw his father standing outside and asked him about the incident and his father told him that he has no idea about it and the accused persons were involved in the offence. Further, as per CW-1, the four unknown persons had already escaped from the spot and on seeing the police, the accused persons and his father also ran. CW-1 had exhibited his complaint given to the SHO on 08.04.2010 as Ex CW-1/A; reminder for the complaint to the SHO as Ex CW-1/B and reminder dated 06.09.2010 as Ex CW-1/C ; complaint given to the DCP on 22.09.2010 as Ex CW-1/D and copy of passbook of Yogesh Kumar as Mark A.
10. Perusal of Ex CW-1/A shows that CW-1 has alleged, that on the date of incident, the accused persons along with his father and four unknown persons, at about 1:45 pm, came to his house and the office and passed unpleasant remarks to two of his tenants, broke the lock of his office from behind and had stolen Rs. 1,00,000/- from the drawer of the table. As per CW-1, the money was withdrawn from the bank on the same day. As per Ex CW-1/B, on the day of the incident, his servant called him and informed him that the accused persons along with his father and four unknown persons are damaging the things kept outside the office and entering the office. He further submits that when he reached the spot, he found his father and the accused persons standing there and even PCR was present and when he inquired from his father about the incident, he said that he does not know anything and that accused no.1 had committed the entire act. As per CW-1, when he entered the office, he saw that the drawer was broken and Rs. 1,00,000/- were missing. Next, in Ex CW-1/C and Ex CW-1/D, the contents of Ex CW-1/B have been reiterated but in Ex CW-1/D, the complainant has CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 6 of 15 stated that even few papers were taken by the accused persons from the drawer. As far Mark A is considered, the same is not stamped by the bank; the owner of the account never filed this document and the original was also not produced by the complainant.
11. During cross examination, CW-1 could not recollect about the statement given during his pre summoning evidence but submitted that the facts alleged by him have been mentioned in the complaint. With respect to his servant, he submitted that he used to pay Rs.8,000/- per month to him and the amount of Rs. 1,00,000/- was withdrawn by Yogesh from his account and kept in his office drawer and the keys used to be in his possession. He denied having taking pictures of the broken drawer or the damaged condition of the office and said that he reached his office between 12:30 pm to 12:45 pm. Further, as per CW-1, the accused persons and his father were present at the spot when he had reached but accused no.2 left on her own on a motorcycle and accused no.1 along with his father went with the police.
12. CW-2 stated in post notice evidence that on the date of the incident, she was present at her shop, i.e 42B Sheikh Sarai Phase-II and at about 12:30 pm, she heard noise of things being broken in the shop of the complainant and she closed the shutter of her shop and later she got to know that the complainant had called the police. During her cross examination, it was extracted that she came to know later that even money was stolen from the office of the complainant and that no photographs of the damage were taken by her or the complainant. Apart this, nothing material came on record from her testimony.
13. Post notice CE was closed on 09.09.2019 and the accused persons were examined u/s 313 CrPC. During their examination, accused no.1 submitted CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 7 of 15 that on the day of the incident, he went to the office at about 10:30 am, along with his father who is the owner of the office. He further explained that the police was called by the complainant to falsely implicate him. Accused no.2 also gave a similar defence. She said that on the day of the incident, she was present at the office as she is the proprietor of the business which is operated from that office and that she has been falsely implicated in this case by CW-1. Accused persons gave a statement on 27.06.2022 that they do not wish to lead DE and the matter was fixed for final arguments.
FINAL ARGUMENTS:
14. Final arguments were submitted in writing by the Ld. Counsel for the complainant and were orally advanced by Ld. Counsel for the accused. As per the counsel for the complainant, the complainant and the witnesses produced by him have corroborated the allegations of the complainant and no material contradiction was brought out from their evidence. He further submits that the accused persons have not even denied the documents exhibited by the complainant and even the accused persons have admitted to their presence at the office, on the day of the incident.
15. Per contra, the Ld. Counsel for the accused submits that in all, three complaints were given by the complainant to the police and the allegations were improved, as compared to the first complaint. He further submits that the eye witness, who is CW-2 in PSE, was never produced by the complainant at the stage of post notice CE and since his evidence was not subjected to cross examination, it should not be read in evidence altogether. As per the counsel, the complainant has baldly alleged the offence u/s 427/448 IPC without producing any proof of the same. He submits that neither the broken lock nor the damaged articles were produced and even CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 8 of 15 the pictures aiding the averments, were placed on record. With respect to the stolen money, he submits that no proof is given by the complainant that it was even kept in the drawer. The counsel has explained the motive as prior enmity between the brothers and submits that the intent is visible from the fact that even though the father of the complainant is stated to be involved in the offence but he was never made a party.
16. In order to decide the guilt of the accused, it has to be seen if the complainant has proved the guilt of the accused persons beyond reasonable doubt for offence u/s 427/448/34 IPC. The accused has produced documentary evidence i.e, Ex CW/1A to CW1/D and has brought three witnesses at the stage of pre summoning evidence and one at the stage of post notice CE, excluding himself. It is now to be seen if the essential ingredients of section 427 and 448 IPC have been proved on the scale of beyond reasonable doubt. Section 427 IPC, reads as under:
Mischief causing damage to the amount of fifty rupees:
Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with impris- onment of either description for a term which may extend to two years, or with fine, or with both The definition of mischief is given in Section 425 IPC. Section 425 IPC reads as under:
Mischief:
Whoever, with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits " mischief".
Section 448 IPC reads as under:
Punishment for house-trespass:CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 9 of 15
Whoever commits house-trespass 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.
Further, section 441 IPC reads as under:
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".
When criminal trespass is committed in a building, tent or vessel used for human dwelling or for keeping property, it amounts to house trespass.
17. Now to prove mischief, CW-1 has alleged that the accused persons entered his office along with four unknown persons and destroyed the articles kept there and were searching for valuables and stole Rs. 1,00,000/- kept in the drawer. CW-2, 3 and 4 have submitted in pre summoning evidence that the time of incident was about 1 to 1:30 pm and that they saw the accused persons commit the mischief along with their accomplice. While CW-2 said that the office was being damaged and he was thrown out and that the accused persons along with father of CW-1 were present outside the office when the police arrived; CW-3, on the other hand said that the accused persons first came to his shop, scattered the articles, broke the glass counter and kicked him out of his shop and that is when he saw accused no.1 and the father of CW-1 go inside the office of CW-1 and come outside in a few minutes and only these two were present at the spot when the police came. CW-4 has submitted on completely different lines. She said that she saw the accused persons along with four unknown persons first enter the CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 10 of 15 shop of CW-3, damaging the articles there, then entering the office of CW-1, damaging things there, assaulting CW-2 and looting money from the office and when the police arrived, accused no.2 and father of CW-1 were standing outside. At this stage, it will be trite to first point out the inconsistencies in the evidence of the witnesses. CW-1 has described the time of incident as 1:45 pm in Ex CW-1/A and all the witnesses during PSE have said that the time was 1-1:30 pm. However, during post notice CE, CW-1 has described the time of incident between 12:30-12:45 pm. What is surprising is the submission of CW-2 in post notice. She has also deposed on the same lines as that of CW-1 and has described the time of incident as 12:30-12:45 pm. It appears that the witnesses are deposing about the details of the incident on the lines of CW-1 and are changing their testimony as per his version. Further, CW-2 has alleged that only the office was damaged but she and CW-3 had alleged in the pre summoning evidence that even the shop of CW-3 was damaged. Also, as per CW-2, both the accused persons and father of CW-1 were standing outside when the police came but during pre summoning, she said that accused no.2 and father of CW-1 were standing and the remaining accused had fled. However, as per CW-3, in pre summoning, accused no.1 and father of CW-1 were present at the spot when the police arrived. The witnesses are stated to be eye witnesses but they have a stark difference in their testimony all of their memory seem to serve them differently for one common incident.
18. Next, as per Ex CW-1/A, on the date of the incident, the accused persons not only went to the office of CW-1 but also his house and they used unpleasant words against few of his tenants and stole the money that he had withdrawn from the bank on the same date. The time of incident is described as 1:45 pm and as per CW-1, all the accused persons had fled the spot when he reached there. This was the first complaint written by him. What is CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 11 of 15 interesting to note is the second complaint filed by him. As per Ex CW-1/B, the accused persons along with his father were present at the spot when he reached. The varying story doesn't reach its ends here. In his pre summoning evidence, CW-1 states that his servant called him after the incident had happened and money was stolen and he was thrown out of the office and when he reached the spot, only the accused persons were present there. However, in his post notice evidence, he states that time of incident was between 12:30 pm to 1:00 pm and that along with his office, few of his shops were also being demolished by the accused persons and their accomplice and, when he reached the spot and inquired from his father about the incident, he along with accused persons ran away on seeing the police. CW-2, who appeared as CW-4 in pre summoning suddenly said that she heard the entire incident. These observations would show that there is no clarity about the time of incident and the alleged accused present at the spot and there's constant improvement in the version of the complainant as well as the witnesses. If the entire evidence is read together, the only eye witness to the incident was CW-2 and 3 in pre summoning evidence, however, they were not produced during the post notice stage. The testimony of the witnesses at post summoning is merely hearsay. Hearsay evidence is not admissible before the courts because the person who is providing such evidence bears no personal responsibility towards the factual accuracy of the statement, and there is plenty of scope for the truth to get diluted in such a statement. One of the exception to this rule is Res gestae. Section 6 of the Indian Evidence Act states that "Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." Thus, in order for a fact to be shown as a part of res gestae, it must be linked to the facts in the issue but should not be the facts in the issue themselves.
CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 12 of 1519. As stated above, the testimony of Complainant's witnesses at post summoning is only hearsay, it is now to be seen if their statement can fall under the category of res gestae. The accused persons stealing the money, damaging the shops and then running away are the incidents which would form the part of the same transaction. The witnesses have contradicted their version with respect to stealing of money, the damage to the number of shops and the act of running away. CW-1 contradicts his statement in pre summoning and post notice CE and his witness doesn't even explains if she saw accused no.1 outside the office, after the incident. In fact, she has not even identified the accused persons during Trial. Further, the complainant has also not led any evidence to prove whether any damage was caused to the goods/articles as alleged. There is no evidence to show that if any damage was so caused, what was the nature or extent of such damage, that is to say, whether there was any destruction of any goods/articles which led to destruction or diminishing of its value or utility, or affected it injuriously, thereby causing loss or damage to the amount of fifty rupees or upwards or the amount that was allegedly stolen. Ex CW-1/D though been exhibited, has not been proved by the complainant. The pass book statement belonged to his servant, who himself did not appear to place the document on record and it is not even stamped by the concerned bank. It is just a piece of paper which the complainant exhibited and intends to attach sanctity to it. Exhibiting a document would not result in proving the document, unless its contents are admitted by the accused. Further, there are contradictions in the testimony of CW-2 to this aspect as well. In pre summoning, she said that she saw the accused persons looting the amount from the office and in post notice, she said that she came to know that cash was stolen. Thus, there being no proof like photographs etc, placed on record to show that the mischief was actually committed and the testimony of witnesses being only CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 13 of 15 hearsay and contradictory, it cannot be said that the ingredients of section 427 IPC have been proved beyond reasonable doubt.
20. Coming to section 448 IPC, the accused persons admit in their examination u/s 313 CrPC that they were present at the spot but that itself would not result in the allegations of the complainant being presumed to be truthful. The complainant has to show that he was in the exclusive possession of the property in question and that the accused persons entered the property to commit an offence or intimidate, insult or annoy him or having entered lawfully, unlawfully stayed there to commit aforementioned actions. The defence of the accused persons is that their father is the owner of the property in question and accused no.2 is the proprietor. Since the complainant herein has alleged trespass, it was his responsibility to prove that he was in exclusive possession of the office or to examine his father as a witness. The complainant has not explained that despite alleging that his father was also present on the day of the incident and allegedly being an accomplice to the offence, was not arrayed as an accused. As explained above, the offence alleged is of mischief, which has not been proved by the complainant, hence first part of section 448 IPC is anyway not applicable. The only ingredient left is if the accused persons entered the property lawfully. The complainant alleges that the property in question is in his exclusive possession whereas the accused have given their defence that the property is owned by their father and accused no.2 runs her proprietorship concern. Both, complainant and the accused have not placed any document on record to show the ownership and CW-2 in post notice has not given any proof to show that the office was in exclusive possession of CW-1. Her testimony can only be accepted for the part where she said that she was paying the rent of her shop to CW-1, even though that has also not been proved by any document but to say that her testimony can be accepted for CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 14 of 15 the right of possession of the office in favor of CW-1 would be preposterous. The complainant also failed to examine any public witness even though it has come on record in the testimony of CW-2 that public persons had gathered outside the office, who could have established his case. This is not a prosecution case where inadvertence of the police has resulted into failure of the witnesses not being produced before the Court. Despite being a complaint case and the complainant having ample opportunity to produce the eye witnesses and being in possession of the relevant documents, he chose to only place hearsay evidence on record, which by any stretch of imagination cannot help him prove his case beyond reasonable doubt.
21. Therefore, on the basis of the above discussion, this Court is of the considered opinion that the complainant has miserably failed to prove the guilt of the accused persons beyond reasonable doubt and therefore, accused Jagdish Mahmana and Kamlesh Mahmna are acquitted from the offence u/s 427/448/24 IPC.
Announced in the Court (SHILPI SINGH) on 20.08.2022 MM-02(SD)/20.08.2022
Certified that this judgment contains 15 pages and each page bears my signature.
(SHILPI SINGH) MM-02(SD)/20.08.2022 CT No. 463784/16 Ashok Mahamna v Jagdish Prasad & Anr Page 15 of 15