State vs Sushil Sharma on 19 February, 2007
If we see the site plan it shows that there were two shops, one is STD &
Photostate shop and other is Tour and Travel on the side of shop in question. Even one of the
photograph EX.P1which were placed on record shows that there was an electrostate shop beside
the shop of Friends Rui Machine. The photographs placed on record some how shows that
complainants were in possession of the shop at one point of time but in the entire prosecution
evidence no concrete evidence came as to who trespassed into the property. There are material
contradiction in the evidence as to how the accused persons trespassed into the property. As per
statement of PW1, the act of removal of belonging of the shop of complainant continued for
various days but despite this no action was taken by the police and which was never the case of the
FIR NO. 135/99 State Vs. Sushil Sharma & Ors. 5/6
prosecution at the first instance. As per original case of the prosecution whatever happened,
happened in the midnight of 3/4 March 1999 and the present case was registered on 04031999
that is there and then. Nothing incriminating could be recovered from the spot nor the goods of the
complainant were recovered from the premises in question, though as per PW1 the same were lying
in the shop itself and even no such allegation was made in the complaint by the complainant that
there goods are lying in the shop itself. Despite the facts that goods were alleged shifted from
there, even after various days no public witness, photographs placed on record showing all these
things happening. Neither the supplementary statement of witnessese were recorded in this regard
and it is very surprising that complainant kept on watching the same as mute spectator and no
second complaint was filed in this regard. It is also pertinent to mention here that as per
complainant accused persons were found at the spot when police visited there in the midnight of
34 March 1999 but no efforts were made by the police to get the shop opened to verify that whose
goods are lying at the shop. Had there been any collusion between the police and accused persons
they would not have registered the FIR there and then. The registration of FIR on the spot itself
which is undisputed in itself raises a presumption that a prompt action was taken on the complaint
of complainant by the police and it shows that accused persons were not at the spot when police
visited there. In these circumstance, I am of the opinion that prosecution has failed to prove its case
beyond reasonable doubt against the accused persons that they trespassed into the property as there
is likelihood that complainant himself on his own vacated the property and later on they lodged this
complaint due to which nothing could be found at the spot nor any independent public witness
could be joined in the investigation. Hence in these circumstance, accused persons deserve benefit
of doubt, hence accused persons are acquitted for the offence U/s 448/34 IPC. File be consigned to
Record Room.