Udai Pal & Ors. vs State
2014 Latest Caselaw 1807 Del

$~R-13 to 15
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: 03.04.2014
+       CRL.A. 859/2010
        RAKESH                                           ..... Appellant
                          Through :   Counsel for the appellant with
                                      appellant in person.
                          versus
        STATE
                                                            ..... Respondent
                          Through :   Mr. Feroz Khan Ghazi, APP.
+       CRL.A. 884/2010
        UDAI PAL & ORS.
                                                               ..... Appellant
                          Through :   Counsel for the appellant with
                                      appellant in person.
                          versus
        STATE
                                                            ..... Respondent
                          Through :   Mr. Feroz Khan Ghazi, APP.
+       CRL.A. 899/2010
        RAVI & ANR                                       .... Appellants
                          Through :   Counsel for the appellant with
                                      appellant in person.
                          versus
        STATE
                                                            ..... Respondent
                          Through :   Mr. Feroz Khan Ghazi, APP.

CORAM:
HON'BLE MR. JUSTICE V.K. JAIN


Crl. A. No859/2010                                          Page 1 of 12
                                  JUDGEMENT

V.K. JAIN, J.

On 29th October, 2003, on receipt of DD No.27A, SI K.L.Meena of

Police Station Malviya Nagar, reached House No.96, Hauz Rani, Malviya

Nagar, where the complainant Shamim Ali Khan was present. The

statement of the complainant was recorded by the Police Officer. The

complainant told him that he had been residing as a tenant in House No.96,

Hauz Rani Malviya Nagar for about 17 years. He further stated that in the

night of 29th October, 20003, at about 12.30 AM, when he was sleeping in

the room along with his wife Robina Khan and his son Suleman Khan, two

boys who had muffled their face, entered his room and requested him to

open the door. The person who called him gave his name as Saleem. On

the complainant opening the door, 8-10 person entered the room. Out of

them, Udai Pal and his son had iron rod in their hands. Surjeet, Naresh and

Mohan also had iron rod/saria in their hands. The wife of Udai Pal also

entered the room along with those persons. His articles were thrown out

from the room. He also alleged that one of the boys, who was in his room,

was armed with a sword and many of them were armed with country made

revolvers and knives. Accused Vinod put the sword on the neck of his son

and threatened to kill him in case the complainant try to raise alarm. The

complainant further alleged that they were shut in a room downstairs, his

articles were kept in a tempo and they were also made to sit in the said

tempo. On the way to Gurgaon, he was pushed out of the tempo in

darkness. On the aforesaid complaint FIR under Sections

365/448/452/506/380/342 of IPC read with Section 34 thereof was

registered.

2. During the course of investigation, the complainant identified as many

as ten persons. Chargesheet against eight of them was filed, namely, Udai

Pal, Surjeet, Mohan Singh, Naresh, Vinod Kumar, Kalyani, Ravi and

Rakesh initially. Seven out of them were convicted vide judgment dated

16th July, 2010. Thereafter, Sunil @ Sonu @ Sunny was arrested on 16 th

May, 2011. Later, it came to be known that Anju @ Manju who had been

declared P.O. in the above-referred case had been convicted in the case FIR

registered under Section 773/2007 of Police Station Mehrauli under Section

506 of IPC. After obtaining her production warrant, she was interrogated.

A supplementary chargesheet against Sunil Dutt @ Sonu, and Anju @

Manju @ Rajesh, son of Tek Chand @ Tek Ram was thereafter filed. Both

of them, however, were discharged vide order dated 17th January, 2012.

3. Eight persons were charged under Sections 365/448/452/506/380/342

read with Section 34 thereof. They having been pleaded guilty, as many as

nine witnesses were examined as prosecution, four witnesses were examined

in defence. The appellant Rakesh was also charged under Section 412 of

IPC. The accused Surjit died during the pendency of trial.

4. Vide impugned judgment dated 07th July, 2010, seven persons were

convicted under Section 452/342/34 of IPC. Vide impugned order on

sentence dated 16th July, 2010, the appellant Kalyani was granted benefit of

probation whereas the convicts Udai Pal, Mohan Singh, Naresh, Vinod, Ravi

and Rakesh were sentenced to undergo RI for two years each and to pay fine

of Rs.5,000/- each gone to undergo SI for five months each in default under

Section 452/34 of IPC. The Court while awarding sentence under Section

452/34 of IPC also noted that the complainant had compounded the offence

under Section 342 & 506 of IPC.

5. Mr. Shamim Ali Khan came into the witness box as PW3 and, inter

alia, stated that at about 12.30 A.M. in the night of 28-29/10/2003, someone

knocked at the door of his house and on inquiry, gave his name as Saleem.

When he opened the door, two boys, who were in muffled face and were

standing on the door pushed him and entered in the room. When he opened

the door, 8-10 persons entered in the room. They were carrying iron rods in

their hands. He claimed that the aforesaid persons were Udaipal, his son,

Vinod, Ravi, Mohan Singh, Sarjeet, Naresh and Kalyani. According to him,

Udai Pal and Vinod had iron rod with them. They started throwing his

goods down from the first floor of the house. 8-10 more persons came in the

muffled face. One of them was having a sword and some of them were

having knife and country-made Katta. Vinod put sword on the neck of his

son and threatened to kill him, in the case the complainant raised alarm.

They took him, his wife and his son to the ground floor and locked them in a

room. Their articles were kept in a tempo. He claimed that they were also

taken in the aforesaid tempo and dropped at an unknown place in Gurgaon.

They took lift and came back to the house. They found that the house had

been demolished. Thereupon, he went to the Police Station and lodged

report Ex.PW3/A. He identified the accused persons.

He further alleged that the Investigating Officer interrogated the

accused Rakesh in his presence. Rakesh disclosed that his household

articles were lying at a place in Bhatti Mines. He went there along with the

Police and the articles of his household, which were 39 in number, were

recovered by Police and a seizure memo Ex.PW3/B. The witness identified

the articles which were seized from Bhatti Mines and they were collectively

exhibited as Ex.PW1. He also identified bedsheets, pillow covers, suits

salwar, swetters etc, which were taken from his house. The aforesaid

articles were collectively exhibited as Ex.P-2.

6. The wife of the complainant Smt. Rubina @ Sunita came in the

witness box as PW4 and corroborated the deposition of her husband. She

identified the accused Udaipal, Vinod, Sarjeet, Mohan Singh and Naresh and

claimed that they had rod and sarias in their hands. She alleged that Kalyani

and Ravi had also entered their house along with 8-10 persons. She also

corroborated the deposition of her husband with respect to the accused

Vinod putting a sword on the neck of her son and threatening to kill him in

case they raised alarm. She also claimed that their household articles were

taken in a truck and they were also taken in the second truck towards

Gurgaon and dropped there, from where they took a lift and went to police

station where complaint was lodged by her husband.

7. PW5 S.I. Dharampal inter alia stated that on 6.11.2013, he along with

the complainant went to Fateh Pur Beri in search of tempo driver. The

complainant Shamim identified the accused Rakesh who was arrested and

was interrogated and his disclosure statement Ex.PW3/E was recorded.

Thereafter Rakesh took them to Bhati Mines and got recovered household

articles which were seized vide memo Ex.PW3/B.

PW6 Head Constable Ravinder Kumar also corroborated the

deposition of PW5 with respect to recovery of various household articles at

the instance of the accused Rakesh from a room situated in a jhuggi. The

recovered articles were also identified by him as Ex.P1 (collectively) and

Ex.P2 (collectively).

8. In their statements under Section 313 Cr.P.C., the appellants denied

the allegations against them and claimed to be innocent.

The appellant Udaipal inter alia claimed that the complainant

voluntarily, after taking handsome amount from the owner vacated the

premises and demanded more money when he found that the owner was

constructing a complex. However, when the owner refused to pay more, a

false case was got registered by him (the complainant).

DW1 Ashok Kumar is the owner of a kerosene depot but his

testimony does not seem to be relevant.

DW2 Rakesh Kumar is an official of the District Court who stated

that case No.695/2004 under Sections 354/323 of IPC had been compounded

between the parties but the court had adjourned the matter for consideration

on account of objection by the learned APP on the ground that the offence

under Section 354 of IPC was not compoundable.

DW3 Shri Deepak Kumar, Assistant Ahlmad in the Court of the

learned Additional District Judge stated that case Shamim Malik Vs.

Udaipal, PC No.263/2009, had been compounded and the suit had been

withdrawn. According to the witness, the suit was for permanent injunction

to restrain the defendant from dispossessing the plaintiff from the first floor

of property No.96, Houz Rani, Delhi.

The appellant Udai Pal came in the witness box as DW4 and inter alia

stated that Shamim Ali Khan was tenant of his father prior to 1987. He had

vacated the accommodation in the year 2000 after taking Rs.50,000/- and

had handed over vacant possession of the same. He further stated that after

some time Shamim claimed that lesser amount had been paid to him for

vacating the room and demanded Rs.2.00 lakh more. He, however, refused

to accommodate him, whereupon a false case was lodged by him. The

aforesaid witness also proved the copy of compromise deed Ex.DW4/A and

payment of Rs.2.00 lakh to the complainant vide draft dated 19.10.2009.

9. The testimony of the complainant and his wife remained more or less

unimpeached during cross-examination. The deposition of PW3 Shri

Shamim Ali Khan, which finds full corroboration from the deposition of his

wife Smt. Rubina shows that in the night intervening 28/29.10.2003, the

appellants acting in concert with one another, entered the room which the

complainant was occupying in the house of the appellant Udai Pal,

threatened to kill the son of the complainant by putting a sword on his neck,

removed all their household articles and threw those articles somewhere on

the way to Gurgaon. The articles were later got recovered by the appellant

Rakesh from a room in a jhuggi in Bhati Mines area. The complainant thus

was dispossessed by sheer use of force.

10. The learned counsel for the appellant submits that the complainant

was not in possession of the room in question on 28/29.10.2003, he having

already vacated the said room some time in the year 2000, after taking

Rs.50,000/- from the appellant Udaipal. However, there is no documentary

evidence of the complainant having taken Rs.50,000/- from Udaipal and

having vacated the room which he was occupying in his house. Had the

complainant actually taken Rs.50,000/- from Udaipal and vacated the room

which he had taken on rent in his house, the aforesaid appellant would

certainly have obtained documentary proof of his (the complainant) having

received Rs.50,000/- and having surrendered vacant possession of the

tenanted premises to him.

11. Admittedly the appellant Udaipal compromised with the complainant

in the civil suit which the complainant had filed seeking stay against his

forcible dispossession from the aforesaid premises and a payment of Rs.2.00

lakh was also made to him. This is yet another indicator that the aforesaid

appellant, along with his accomplices had actually committed criminal

trespass in the room which the complainant was occupying in his house and

had removed his household articles to a distant place and that is why he

chose to settle with him.

12. It would be difficult to accept the plea that having taken Rs.50,000/-

sometime in the year 2000 and having handed over vacant and peaceful

possession of the tenanted premises to Udaipal, the complainant would come

again, not immediately, but after three (3) years, demand more money and

would go to the extent of lodging a false FIR, on account of his demand

having not been met.

13. Thought had the complainant raised alarm, the neighbours would

probably have come there and intervened, but since the appellants had

threatened to kill his son, he had no option, but to remain a mute spectator to

his forcible dispossession.

For the reasons stated hereinabove, I find no ground to interfere with

the conviction of the appellants. The learned counsel for the appellants seeks

benefit of probation on the ground that the complainant compromised with

Udaipal during the pendency of the trial and, in fact, the parties also made a

joint attempt to get these proceedings quashed. Considering the settlement

between the complainant and Udaipal, I am of the view that this is a fit case

where benefit of probation can be granted to the appellants subject to their

suitably compensating the complainant. The appellant Udaipal who is

present in the Court undertakes to pay for all the appellants, compensation

amounting to Rs.1.00 lakh to the complainant Shamim within one (1) month

from today. Subject to the appellant Udaipal furnishing a written

undertaking to pay Rs.1.00 lakh as compensation to the complainant

Shamim Ali Khan and his complying with the said undertaking, the

appellants shall be released on furnishing personal bond of peace and good

conduct in the sum of Rs.10,000/- each with one surety each of the like

amount, for a period of two (2) years. During the period of bond, they shall

maintain good conduct and peace. They shall appear as and when directed

to receive the sentence imposed on them. In the event of default in paying

the compensation and/or furnishing bond of peace and good conduct within

one (1) week from today, the appellants shall undergo the sentence already

awarded to them by the trial court.

The pay order of Rs.1.00 lakh in the name of the complainant shall be

deposited by the appellant Udaipal with the learned Trial Judge within one

(1) month from today. The learned Trial Judge shall then summon the

complainant and hand over the said pay order to him.

The appeal stands disposed of.

LCR be sent back, with a copy of this order.

APRIL 03, 2014                                            V.K. JAIN, J.
'sn'/b'nesh