State (Delhi Administration) Vs. Mahinder Singh - Court Judgment

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indian penal code, 186section 441 - framing of charge for offence of criminal house trespass--discharge of accused under section 427 read with 448--complaint made by the landlady against the neighbour while the tenant was in possession of the property in question--physical possession of the property in question not with complainant at the time of lodging of fir--order of acquittal, affirmed. - - see air1957cal385 .in the instant case, i find that the prosecution has failed to prove the actual physical possession of the complainant about the property in dispute.s.n. aggarwal, j.1. the state (delhi administration now government of nct delhi) has preferred this appeal aggrieved by the acquittal of the respondent of charges under sections 448 and 427 of the indian penal code (hereinafter referred to as the `code' only) vide impugned judgment dated 7.10.1982 passed by the court below.2. the brief facts of the case giving rise to this appeal are as follows:smt. sushila devi claims herself to be the owner of house no. 113-b, west patel nagar, new delhi. she purchased the said house from shri dewan singh on the basis of agreement to sell and other related documents in may, 1973. after purchase of the said house, she inducted s.r. gupta as a tenant in her house. there was dispute between smt. sushila devi and her tenant s.r. gupta. proceedings for eviction of s.r. gupta were filed by smt. sushila devi and the status as to what happened to those eviction proceedings is not on record. the respondent who was charged under sections 448 and 427 of the code, was owner of the adjoining house. the fir against him was registered on the complaint of smt. sushila devi. the case of the prosecution against the respondent was that on 21.9.1976, he had committed the offence of criminal house trespass by entering into and remaining there in the aforementioned premises belonging to smt. sushila devi to her annoyance. initially, the fir was registered under section 448 of the code, but the respondent was charged by the court below for offences under sections 448 and 427 of the code.3. in order to prove the charges against the respondent seven witnesses were examined by the prosecution and they are, smt. sushila devi, si harcharan singh, radha krishan, sukhbir singh, jaidev, ravinder pal and si manohar lal. the prosecution did not produce its witness sukhbir singh for his cross-examination and, thereforee, his evidence-in-chief was not acted upon by the court below.4. after conclusion of the trial, the court below found that the prosecution could not prove its charges against the respondent beyond doubt and, thereforee, acquitted the respondent of the said charges by giving him benefit of doubt. paragraph 6 of the impugned judgment is relevant in relation to findings of court below on charge under section 448 of the code and the same is reproduced hereinbelow:now, i will have to consider whether the prosecution has succeeded in adducing evidence in the above said counts and has succeeded in roving the above mentioned facts. it has been admitted by smt. sushila that the property in question was in possession of sh. s.r. gupta. she has admitted that on 27.8.76, sh. s.r. gupta locked the premises and has not handed over the key to her. p.w.5 shiv kumar has also admitted this fact that the possession of the said property was not given to smt. sushila by sh. s.r. gupta. it is an admitted case of the prosecution that sh. s.r. gupta locked the premises in question and lodged a report with the police wherein he has stated that he will hand over the key of the house in question to the person who will be declared as the owner of the property by the court of law, for the complainant and the accused were claiming to be the owner of the said property in question simultaneously. this fact has been specifically and categorically admitted by the prosecution witnesses that the property in question was in possession and occupation of sh. s.r. gupta. he locked the premises on 27.8.76 and kept the key with himself. when the key of the property in question was with sh. s.r. gupta, can the possession of sh. s.r. gupta can be taken as constructive possession of the complainant in the present matter for the purpose of criminal house trespass? for the offences defined and made punishable under the indian penal code, it is the actual physical possession which is to be considered. the theory of constructive possession is foreign for offence of criminal house trespass as defined in the i.p.c. there, in the case in hand the prosecution has categorically admitted that the physical possession was not with the complainant as the key of the house in question was with one sh. s.r. gupta. the constructive possession as pleaded by the ld. a.p.p. will not help the cause of the prosecution. the constructive possession cannot be taken as sufficient for awarding punishment for criminal house trespass to the accused. such law is also laid down by the hon'ble high court of calcutta. see : air1957cal385 . in the instant case, i find that the prosecution has failed to prove the actual physical possession of the complainant about the property in dispute.5. the learned prosecutor appearing on behalf of the state could not controvert the above findings on the aspect of possession contained in the impugned judgment. 6. the offence of criminal trespass is defined in section 441 of code and the same is as under:441. 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'.7. on a plain reading of the penal provisions contained in section 441 of the code referred above, it is crystal clear that before a person can be convicted for an offence of criminal house trespass, the prosecution must prove that the house alleged to have been trespassed by the accused was in possession of the complainant/victim of the incident. the findings returned by the court below on this aspect referred above would show that the prosecution could not prove that the complainant was in possession of the house at the time of alleged incident and, thereforee, i am of the view that the learned trial court was fully justified in acquitting the respondent of charge under section 448 of the code. 8. as far as the charge under section 427 of the code against the respondent is concerned, there is no evidence on record to show that the respondent had caused any damage to the property of the complainant, much less with a criminal intent. thereforee, the acquittal of the respondent of the said charge also cannot be interfered with in exercise of appellate jurisdiction by this court. 9. in view of the above, i do not find any merit in this appeal. the impugned judgment of acquittal is upheld. the appeal is, thereforee, dismissed.