Delhi District Court
Narender Kumar vs State (Govt. Of Nct Of Delhi) on 31 August, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL DISTRICT):
TIS HAZARI COURTS: DELHI
Criminal Appeal No. 08/2018
Registration No. 173/2018
CRN No. DLCT01006076/2018
Narender Kumar
S/o Late Sh. Bishamber
R/o House No. 4/2335, Gali No. 6,
Bihari Colony, Shahadara, Delhi110 032.
.......... Appellant
Versus
State (Govt. of NCT of Delhi)
........ Respondent
Date of Institution: 04.05.2018
Judgment Reserved on: 20.08.2018
Judgment Pronounced on: 31.08.2018
JUDGMENT:(Oral) (1) This criminal appeal impugns the Judgment dated 31.03.2018 and Order on Sentence dated 4.4.2018 passed by Ld. CMM (Central) in case bearing CC No.49/1 under Section 193/199/200 IPC of Police Station Subzi Mandi titled as "State vs. Narender Kumar".
(2) The brief facts of the case are that on 11.08.2009 before the Hon'ble High Court of Delhi in a Judicial proceeding vide Writ Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 1 of 39 Petition No. 1011/2009 titled as "Narender Kumar & Anr. Vs. State & Anr." the appellant / accused Narender Kumar made a false statement with respect to the relationship of Raj Kumar and Pooja which he knew to be false and he also filed a false affidavit with false averments in the said Writ Petition. This being the background, vide order dated 04.11.2009, the Hon'ble Delhi High Court dismissed the said Writ Petition with cost and directed to proceed against Narender Kumar under Section 340 Cr.PC for making a false statement before the court on 11.08.2009 besides swearing a false affidavit with false averments in the petition. Pursuant to said directions of Hon'ble Delhi High Court, a complaint under Section 340 Cr.PC read with Section 195 Cr.PC was filed by the then Ld. Registrar General of Hon'ble High Court of Delhi, to proceed against the appellant / accused Narender Kumar which complaint came up for hearing before the Ld. Trial Court being the Designated Court to deal with such complaints.
(3) Ld. Trial Court took cognizance of the offence and on the basis of the material placed before it, framed charges against the appellant / accused Narender Kumar for the offence under Section 193/199/200 IPC and trial commenced. During trial, in order to prove its case the prosecution examined six witnesses. After conclusion of the trial, the impugned judgment was passed by the Ld. Trial Court convicting the appellant / accused Narender Kumar for the offence under Sections 193/199/200 IPC and vide impugned order on sentence the appellant / accused was sentenced to undergo Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 2 of 39 Rigorous Imprisonment for two years each and also to pay fine for a sum of Rs.20,000/ each for the offence punishable under Section 193/199/200 IPC and in default of payment of fine to undergo Simple Imprisonment for one month each.
(4) Being aggrieved of the impugned judgment / order, the appellant / accused has preferred the present appeal on the following grounds: That there was no legal evidence on record for passing the impugned judgment and the findings of Ld. Trial Court are based upon surmises and conjectures. That the Ld. Trial Court has failed to appreciate the evident on record and the view taken in the impugned judgment is not probable at all.
That in the impugned order the Trial Court for the purpose and to ascertain if the offence under which the accused has not been charged or made out or not, the Ld. Trial Court need not go into and has rather no concern with the question as to if Raj Kumar (brother of accused) and Pooja (the lady who claims herself to be the wife of the brother of the accused) were legally wedded or not which is an important factor of this case because as Raj Kumar has left the parental house more than 20 years and the appellant has no concern/whereabouts of Raj Kumar and Raj Kumar never come to the place of his father where the accused reside and accused has Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 3 of 39 reasoned to believe that my deceased brother Raj Kumar is a Bachelor.
That the Ld. Trial Court has no concern if the marriage between two persons was valid or not which is also an important factor must be determined by the Ld. Trial Court. As according to the Dalbir Singh (PW6) who brought the service record of deceased Raj Kumar (brother of accused) and has correctly deposed that no marriage certificate is on record and that he does not know whether the nomination forms were verified or not. This means the record never proved Pooja is legally wedded wife.
That the impugned order is arbitrary in nature as the Ld. Trial Court has not considered the main features of the case on which their entire defence was on stake and the finding given by the Ld. Trial Court in the impugned order clearly indicates that impugned order was not passed in legal manner and even impugned order failed to explain that the statement given before the concerned police officials is proved or not.
That the alleged statement in the Writ Petition is entirely based on his knowledge, therefore, he has given alleged statement before Hon'ble High Court only on the basis of knowledge and it was admitted fact that the appellant was not present at the time of marriage of Raj Kumar Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 4 of 39 and Pooja and Raj Kumar severed all relations from the accused and their family members.
That in his crossexamination ASI C.D. Chauhan (PW
2) has clearly deposed that he recorded the statement of accused in the presence of Pooja and Seema but he has not obtained their signature to prove their presence, therefore, the presence of Pooja and Seema is doubtful and since their presence has become doubtful then the statement written by CD Chauhan (PW2) is falsified that the accused gave his statement that Pooja was his Bhabhi (wife of deceased brother), therefore, it is quite apparent that CD Chauhan has recorded the version of Pooja under her influence and under the influence of her relatives.
That the Ld. Trial Court has failed to appreciate that there was no lawful ground and justification for awarding the sentence.
(5) No formal reply to the appeal has been filed by the Respondent / State. The Ld. Addl. PP for the State has filed written memorandum of arguments wherein he submitted that the impugned judgment is a well crafted judgment which has been passed after due appreciation of evidence. It is submitted that appellant intentionally filed a false writ petition along with the affidavit before the Hon'ble High Court showing that it was not in his knowledge that the said Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 5 of 39 Pooja was not the wife of his brother Raj Kumar. It is further submitted that during the arguments before the Hon'ble High Court, on the specific query of Hon'ble Justice, the appellant stated that his brother was a bachelor. Ld. Addl. PP for the State has further submitted that the said order of the Hon'ble High Court dated 4 th November, 2009 was not challenged before the Hon'ble Supreme Court. He has pointed out that no cross examination was conducted to this effect i.e. whether any statement regarding the relation of Pooja with Raj Kumar was made by the appellant before the Hon'ble High Court or not or that contents of the affidavit was not in his knowledge, from Sh. Parmod Kumar (PW1) and Sh. Gopal Sharma Advocate (PW5). Ld. PP has further submitted that the appellant, during his statement u/s 313 Cr.PC, again gave false answer that it was not his knowledge whether the Pooja was the wife of his Raj Kumar or not. It is also argued that it is a settled law that if an accused gave false answers during the statement recorded under Section 313 Cr.PC, then this circumstance can be taken into consideration against him.
(6) It is further submitted that the statement of appellant Ex.PW2/A recorded by ASI C.D. Chauhan clearly shows that it was in the knowledge of the appellant that the Pooja was the wife of Raj Kumar. It is also that during the trial ASI C.D. Chauhan (PW2) was not cross examined on material particulars and he withstood the test of cross examination. Ld. Addl. PP has further argued that law is not that testimony of police officers is absolutely untrustworthy or that it Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 6 of 39 can never be acted upon, rather, it is a settled law that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy. Ld. Addl. PP has placed his reliance upon the following judgments: Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120.
Mahesh Tiwari vs. State of UP and another (application u/s 482 NO. 12840 of 2016.
Ranjeet Singh vs. State of Pepsu AIR 1959 SC 843 S.P. Kohli (Dr.) vs. High Court of Punjab and Haryana AIR 1978 SC 1753.) Asgar Ali Mulla Ibrahimji vs. Emperor AIR 1943 Nag 17(18).
Parag Dutt vs. Emperor AIR 1930 Oudh 62 (63). Afzal and another vs. State of Haryana and others AIR 1996 SC 2326 (2334)."
Dhananjay Sharma vs State of Haryana and other, case No. Writ Petition (Crl.) 15 of 1994.
In Chandra Shashi v. Anil Kumar Verma, [1995] 1 SCC 421, Suo Moto Proceedings Against ... vs Unknown, AIR 2001 SC 2204 Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 7 of 39 (7) On the other hand, Ld. Counsel for the appellant has argued that the most material witness i.e. Ms. Pooja has not been examined by the prosecution as only she could have informed about her marriage, if any, with Raj Kumar. Ld. Counsel has further argued that the entire case of the prosecution is based upon the factum of marriage of Raj Kumar with Ms. Pooja its knowledge to the accused and the prosecution has miserably failed to discharge the said onus. It is also argued that the statement Ex.PW2/A allegedly recorded by ASI C.D. Chauan (PW2) cannot be used against the accused as his confession and even otherwise, confession before a police official has no value in the eyes of law. It is further argued that before filing of the Writ Petition before the Delhi High Court, accused was completely unaware of service records and personal life of his younger brothers. It is also argued that from the entire deposition of the witnesses and from the entire facts of the case it cannot be concluded that accused the having direct or indirect knowledge that Ms. Pooja was the wife of his younger brother and he deliberately concealed this fact despite his knowledge. In so far as the status report filed by the SHO is concerned, Ld. Counsel has argued that the said report is silent about the date of marriage, statement of any witnesses who participated in the marriage and statement of landlord of Ms. Pooja where she was allegedly residing with Raj Kumar. It is pointed that even as per the service record, the address of Raj Kumar is mentioned as 4/2335, Gali No.6, Bihari Colony, Shahdara, Delhi and not any other rented address of Ashok Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 8 of 39 Nagar, Delhi as claimed by the prosecution. (8) I have considered the rival contentions and I may observe that in order to prove its case against the appellant, the prosecution has examined as many as six witnesses. Sh. Pramod Kumar (PW1) the Deputy RegistrarcumPA to the Registrar General of the Delhi High Court, who has proved the complaint Ex.PW1/A, order dated 04.11.2009 which is Ex.PW1/B, order dated 11.08.2009 which is Ex.PW1/C, orders dated 28.07.2009 and 16.09.2009 which are Ex.PW1/D & Ex.PW1/E, copy of Writ Petition (Criminal) No. 1011/2009 which is Ex.PW1/F (colly), copy of status report dated 07.08.2009 of SHO PS Farsh Bazar filed through Additional Standing Counsel which is Ex.PW1/G, copy of status report dated 29.10.2009 of SHO PS Farsh Bazar along with annexures which is Ex.PW1/H; PW2 was ASI Charan Dass Chauhan who has proved the statement of the appellant which is Ex.PW2/A recorded by him; PW3 Sh. Vikrant Dagar was the Judicial Assistant from Delhi High Court who proved the digitized record along with certificate under section 65B of Indian Evidence Act, in respect of documents Ex.PW1/B to Ex.PW1/G (colly.); PW4 Inspector Ram Avtar Yadav was the SHO at PS Farsh Bazar, who has proved the status report Ex.PW4/A and the details of DD entries received, visits to the property in question, calls being filed along with filing of petition under section 156(3) CrPC by Ms. Seema (sister of accused); PW5 Sh. Gopal Sharma was the Oath Commissioner who had attested the Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 9 of 39 affidavits of the appellant Narender Kumar and his sister Ms. Seema, which affidavits are Ex.PW5/A and Ex.PW5/B; and PW6 Ct. Dalbir Singh has proved the service book of Ct. Raj Kumar Ex.PW6/A, nomination Form Ex.PW6/B, Form for benefit under the Delhi Police Mutual Welfare Scheme Ex.PW6/C and form for benefits under Central Government Employee's Scheme Ex.PW6/D. (9) In his statement under Section 313 Cr.P.C. the appellant / accused has accepted the contents of the Writ Petition and other record though he has pleaded ignorance about his statement Ex.PW2/A. However, no evidence has been lead in defence. (10) At the very Outset I may observe that the appellant / accused Narender Kumar has been convicted of the offences under Sections 193, 199 and 200 Indian Penal Code which provide for punishment for the offences of false evidence as defined as under
section 191 Indian Penal Code.
(11) Coming first to the provisions of Section 191 Indian Penal Code which provides that:
".... Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence.
Explanation 1: A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2: ...."
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 10 of 39 (12) Now coming to the provisions of Section 193 Indian Penal Code which reads as under:
"..... Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine; ...
Explanation 1 ...
Explanation 2 An investigation directed by law preliminary to a proceeding before a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice..."
(13) In so far as Section 199 Indian Penal Code is concerned, the same provides that:
".... Whoever, in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence....."
(14) Further, the provisions of Section 200 Indian Penal Code provides that:
"..... Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 11 of 39 Explanation A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of sections 199 and 200....."
(15) In the light of the aforesaid provisions the issues determinable are as under:
(i.) Whether the appellant / accused Narender Kumar was aware of the marriage of Ms. Pooja with his brother Raj Kumar?
(ii.) If yes, then whether the statements made by the appellant in judicial proceedings were false or not?
(iii.) In case if the issue no.2 is decided in affirmative, then whether the appellant / accused is guilty of making false statements?
(16) The Ld. Trial Court has in the impugned judgment exhaustively evaluated and discussed the evidence on record, both oral and documentary. The observations and findings of the Ld. Trial Court are based upon sound principles of reason and logic after due appreciation of evidence which findings I reproduce as under:
"....... 29. PW2 ASI CD Chauhan affirmed these facts on oath in the court and proved the said statement given to him by the accused. This witness was cross examined by the accused only on a limited point, wherein he stated that he had not visited the rented accommodation of Pooja, that he had not obtained Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 12 of 39 signatures of any witness on the statement Ex.PW2/A, and that he had not obtained any document from the accused or Pooja. He denied that he had neither visited the premises nor had recorded the statement of the accused.
30. It would be thus seen that the only stand taken by the accused with respect to this statement is only a suggestion that PW2 had not visited the spot at all and had not obtained signatures of other persons present there and had not obtained any documents. Apparently, he has never disputed the correctness and the genuineness of his signatures appearing on his statement, as identified by PW2. It is nowhere his stand that the said signatures are forged or fabricated. He has nowhere given a suggestion to any witness, to PW2 in particular, that the said signatures did not belong to him or were obtained under any threat or pressure or duress. It is not his stand during the entire trial that he was forced to put his signatures without making him read over his statement. When these facts were put to the accused in his statement under section 313 CrPC, he simply denied the same and stated that he did not know whether his statement was recorded. Therefore, even in his statement, the accused never denied the correctness of his signatures appearing on his statement Ex. PW2/A and never claimed that the police official had never visited his house on 04.05.2009, as suggested to PW2 during his cross examination.
31. In my considered view, merely because signatures of no other person present there had been obtained on such a statement of the accused herein, or because no document had been obtained from accused or Pooja on that day, that would not be a reason to ignore the statement. There is no requirement under the law that every statement of any person recorded by the police Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 13 of 39 officials should also bear the signatures of other persons present there or should be duly supported by documentary evidence, to make it admissible in evidence. This is particularly when the said proceedings were only in the nature of a preliminary enquiry. No FIR had been registered by that time, under the investigation of which the said statement had been recorded, so as to call it to have been recorded under section 161 CrPC. The accused herein was neither an accused at that time in any case nor a suspect nor even a witness in any criminal proceedings. He was just explaining the factual situation to a police official who had reached at the spot upon receipt of a call of quarrel. The facts disclosed by the accused at that time to the police official, was not already in the knowledge of the police official and therefore, it cannot be said that the police official had recorded the statement of his own and then obtained the signature of the accused thereupon subsequently. It is nowhere the case of the accused that his signatures had been obtained on any day subsequent to 04.05.2009 on any statement recorded previously. Therefore, there is no reason for the court to ignore the said statement wherein the accused had clearly disclosed about his knowledge of material facts, that his younger brother Raj Kumar had married a girl named Pooja, that they had two sons named Sahil and Chahat aged 10 years and 8 years respectively, that the said persons had come to his house a day before on 03.05.2009, and that they had been allowed to stay in the house in the rear portion.
32. This statement would be sufficient to establish that on 04.05.2009, the accused was already well aware of the fact that his brother late Sh. Raj Kumar had married the girl Pooja who was present at his house along with their two children, though it is still not clear if he was aware of the identity of that girl Pooja Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 14 of 39 or even her children. The mere fact that he had disclosed the name of the girl to whom his brother had entered into love marriage, and about the names and age of their two sons, would be sufficient to show his knowledge about the marriage of his brother with the said girl Pooja, irrespective of the fact if the said marriage was valid or not, or was considered by him as valid or not.
33. At the same time, the material before the court does not show that he already knew the said girl Pooja so as to identify her, before she came to his house on 03.05.2009. There is nothing to show that the accused or any of his family members had attended the marriage of his brother Raj Kumar with the girl Pooja, or that the said Pooja or their children had ever met the accused or his family members, or that there was any communication between the two sides during the intervening period so as to get acquaintance with each other. It may also be noted that as per the record, statements of various family members had been recorded by the police officials when they were directed to conduct an inquiry into the matter by the Hon'ble High Court. As per the status report Ex. PW1/H, statements of several persons had been recorded including Dharam Pal Singh, Ravinder Singh, Raj Kumar Sharma, Mahavir Singh, Sachin Gaur, Vinod Kumar, Nawab Singh, Ram Babu, Man Singh etc. For that matter, statements of few other persons were also recorded on 04.05.2009 in addition to that of the accused. But none of these statements have been placed on record by the prosecution. These statements had been recorded to establish that Raj Kumar had married Pooja. However, as already stated, this court is not concerned with the issue if there existed a valid marriage between the said two persons or not, and the court is only concerned with the fact if the existence of marriage, whether valid or not, was within the knowledge of the accused.
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 15 of 39 Strangely, even the accused never insisted on the production of any of those statements either through any of the prosecution witnesses or even in his defence, if he was of the view that there was anything beneficial to him in the present case. Therefore, non production of those statements on record would not have any effect on the statements which are already proved on record.
34. The statement given by the accused to PW2 on 04.05.2009 would make it sufficiently clear that he was well aware of the factum of marriage of his brother with a girl named Pooja, though it might be possible (though not plausible) that he was not able to identify the said girl. But by 04.09.2005, when the said girl along with her children had already visited his house and she was allowed to stay in a rear portion of the house, he was well aware even of her identity. He never claimed in her statement to the police that the said girl was unidentified or unknown, or was falsely claiming to be wife of his brother.
35. It would be seen that PW2 being a police official, was a public servant and was authorised by law to receive evidence of any fact, within the meaning of section 199 IPC. The statement made or declaration subscribed by the accused before him would therefore be covered within the meaning of section 199 IPC. Even if such a statement is considered to be an informal statement, the Explanation to section 200 IPC would remove any such defect, as it states that a declaration which is inadmissible merely upon the ground of some informality, would be a declaration within the meaning of sections 199 and 200 IPC. Similarly, as per Explanation2 to section 193 IPC, an investigation directed by law preliminary to a proceeding before a court of justice, would be a stage of judicial proceeding within the meaning of that Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 16 of 39 section, though that investigation may not take place before a court of justice. Therefore, even if it is considered that the proceedings by police officials after receipt of PCR call cannot be called as judicial proceedings in strict terms, even such proceedings would be covered within the meaning of section 193 for the purpose of determining if it is a case of false evidence.
36. Now coming to the second statement made by the accused, which had been made by him during the course of court proceedings. The accused had filed a writ petition Ex. PW1/F. As per the "List of Events"
filed along with the writ petition, the accused claimed that on 03.05.2009, "a lady namely Pooja proclaimed wife of the deceased brother of the petitioners expired on 27.04.2009 came to the house of petitioner along with two child (sic) and some goonda elements, and attempted to occupy of (sic) partly covered courtyard of property of the petitioner No. 1". In the body of the writ petition, various instances had been referred to by the accused, with which this court has no concern otherwise, except the fact that he made certain statements including "the possession of planted lady preaching the wife of diseased Raj Kumar", "on 03.05.2009 at about 9:30 PM the accused person named in the complaint dated 03.06.2009 attempted to enter forcibly", "they all forced to keep the accused Pooja who was unidentified by the petitioners", "intrude the uncalled for and unidentified person in the portion of property". The said petition was duly accompanied by the affidavit of the accused Ex. PW 5/A, the correctness of which has not been disputed by the accused. Along with the said petition, various previous proceedings including the complaints made to the police had been annexed wherein the accused claimed that a lady Pooja with her two children came to his house, though not disclosing that she was Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 17 of 39 related to him through his brother. The report of Local Commissioner appointed by Ld. Civil Court shows that one lady, who introduced herself as Ms. Mithlesh @ Pooja had opened the door and introduced the two children to be belonging to her.
37. Therefore, in the entire writ petition, duly supported by affidavit, and also in all previous proceedings annexed to that petition, the accused never took stand that the said Pooja was wife of his brother Raj Kumar and rather projected as if she was an unknown and identified person. He never claimed that he was disputing the marriage itself, or the validity of that marriage, or only the identity of the said lady. Even if it is assumed that the accused was not aware of the service record of his brother or about the school records of the children, which also does not appeal to senses, it would still be clear that he was well aware of the fact that his brother Raj Kumar had married a girl called Pooja, though he was not aware of her identity as such and was not sure as to if the lady who had come to his house projecting herself to be the wife of his brother, was the same lady Pooja who had married his brother. Again, the accused has not disputed the fact that he had filed the writ petition or had mentioned the specific contents therein or had filed the affidavit bearing his signatures. The genuineness of affidavit has been proved by PW5. It is nowhere the case of the accused that he was not aware of the contents of the affidavit of the writ petition, or that the same had been filed without his instructions, or that the same did not bear his signatures, or that the signature thereupon are forged or fabricated.
38. In the said writ petition, the accused never claimed that his brother Raj Kumar had never married or was a bachelor. He never made reference to his previous Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 18 of 39 statement dated 04.05.2009 given to the police officials, being his signatures, wherein he had disclosed even the identity of the lady Pooja to be the girl who had married his deceased brother Raj Kumar. There is no doubt that the said statements made by the accused were a part of the judicial proceedings, as they had been filed before the Hon'ble High Court of Delhi.
39. Now comes the third statement which was made in the open court before the court proceedings of the Hon'ble High Court, which actually triggered the present situation. On 11.08.2009, the Hon'ble High Court observed that "as per the counsel for the petitioner Ms. Pooja is not the legally wedded wife of deceased Raj Kumar and therefore, she has no right to forcibly enter the said property". The Hon'ble High Court then enquired from the petitioner No. 1 himself in the open court as to whether his brother was married to Ms. Pooja or not, and the proceedings were the recorded as "Narender Kumar, petitioner No. 1 is present in court. He was enquired by the court as to whether his brother Raj Kumar was married to Ms. Pooja or not and in reply he stated that Mr. Raj Kumar was a bachelor and he was never married. He further states that they do not recognize any such lady with the name of Ms Pooja, to be the wife of diseased Mr. Raj Kumar". It was on such submissions made by the accused herein that the Hon'ble High Court was pleased to direct the area SHO to verify the factum of marriage of Ms. Pooja with the deceased Raj Kumar and to collect documents in proof of the said marriage.
40. Subsequently, the order dated 04.11.2009 came to be passed, by which the Writ Petition was dismissed, with costs, and action was proposed to be taken against the accused under section 340 CrPC for Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 19 of 39 making a false statement before the court on 11.08.2009 besides swearing a false affidavit with false averments in the petition. The Hon'ble High Court noted that in the statement given to the police, the accused had informed that the lady Pooja happened to be his bhabhi as she was married to his brother Raj Kumar, that the counsel appearing for the accused on instructions had stated that she was not the legally wedded wife of Raj Kumar, but when questioned by the court to accused himself to disclose whether his brother was married to Pooja or not, he had stated that his brother was a bachelor and he was never married. Relying upon the documents coming from the government records and the photographs, the Hon'ble High Court formed an opinion that the said Pooja was legally wedded wife of Raj Kumar, but the petitioner (accused herein) nowhere mentioned or disclosed about the said relationship in the entire petition and the complaints. The Hon'ble High Court observed that "petitioner No. 1 has the audacity to mislead this court by clearly denying the said relationship and further went to the extent of saying that Raj Kumar was a bachelor and he never got married".
41. It would be therefore seen that even the said court proceedings dated 11.08.2009 have not been disputed by the accused. It is not his case that he did not make such a statement before the court or that his version had been wrongly/incorrectly or incompletely recorded by the Hon'ble Court. No such stand has been taken by the accused during the entire trial, including the prosecution evidence or his statement under section 313 CrPC or even by way of defence evidence.
42. A bare perusal of the said proceedings and a comparison with his previous versions would make it Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 20 of 39 clear that the said statement made by the accused before the Hon'ble High Court was clearly false. Even if he disputed the identity of the lady Pooja who had come to his house to be the one with whom his brother had married, or even if he disputed the validity of the said marriage, there was no occasion for him to claim before the Hon'ble court and to say that his brother had never married or was a bachelor. The statement made before the Hon'ble High Court itself, in the judicial proceedings, were apparently false to the knowledge of the accused. There is no explanation given by the accused as to how he claimed his brother to be unmarried or a bachelor. Even if he did not attend the marriage, or was not aware of the service record or the school records of the children, or was not aware of the residence of his brother, or if the said Pooja had never visited his place during the intervening period, or if he had no acquittance with the said Pooja, it still cannot be said that the accused or any of his family members was having no information at all about the said marriage. This is particularly when the accused himself had stated before the police officials on 04.05.2009 itself that his brother had married a lady Pooja and that they were having two children aged 8 and 10 years. Accused also informed that his brother had helped in medical treatment of their mother through CGHS, thus showing that they had met during intervening period as well. There is no doubt that the accused had made a statement before the Hon'ble High Court which he knew or believed to be false, and there is no reason for this court to come to any other conclusion.
43. As per Explanation1 to section 191 IPC, even a verbal statement would be covered under this provision. The accused was certainly legally bound to state the truth before the Hon'ble High Court, even if technically speaking, he was not under an oath at that Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 21 of 39 time. It cannot be said that when asked by the Hon'ble Judge of the Hon'ble High Court directly, the accused was not legally bound to state the truth or was free to make any statement even if false. Therefore, it is clear that the accused was well aware of the factum of marriage of his brother Raj Kumar with a lady named Pooja, though it might still be possible (though not a probable) that he was not aware of her identity as such. Despite that, he concealed the factum of marriage in the entire writ petition wherein he called the said Pooja as an unidentified and an unknown lady. Again, he went on to claim before the Hon'ble High Court itself that his brother Raj Kumar had never married and was a bachelor. The entire proceedings when read as a whole, would be sufficient to establish that he had concealed material facts in his writ petition and has rather made a positive false statement before the Hon'ble High Court on 11.08.2009, which he knew and believed to be false. The only purpose of making such a statement would have been to get a favourable order from the Hon'ble High Court.
44. This court need not go into other stands taken by the accused, which primarily pertain to the validity of the marriage. The court need not go into the status reports filed by the SHO, or the argument that the fact of marriage has not yet been decided by a court of competent jurisdiction, or that the witnesses had no personal knowledge about the fact of marriage, or that the witnesses had never visited the rented accommodation of his deceased brother, or that the statements of neighbours were never recorded, or that no verification was made by the local police station where the deceased brother of the accused was staying, or that no documentary proof of marriage had been given to the police by the said Pooja, or that no verification had been made by the police from the Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 22 of 39 concerned authorities on the basis of which her name had been entered in the government records, or that the accused did not consider the lady Pooja as the wife of his deceased brother. This court has no concern with the validity or invalidity of the said marriage and is only concerned with the knowledge of such marriage with the accused. Despite having the knowledge of the said marriage, the accused had concealed the said fact from the Hon'ble High Court and had rather made a completely contradictory and false statement claiming that no such marriage had ever taken place or that his brother was a bachelor.
45. Therefore, it has been established that the accused had made false statement within the meaning of section 191 IPC and had given false evidence. As he had intentionally given false evidence in judicial proceedings for the purpose of being used in any stage of judicial proceedings, it is clear that the accused had committed the offence punishable under section 193 IPC. Again, the accused had made statements in his writ petition before a court of justice, which he knew to be false or believed to be false or did not believe to be true, touching on the points material to the object for which the declaration were made, and therefore committed an offence punishable under section 199 IPC. It is also clear that the accused had corruptly used or attempted to use as true such declaration, knowing the same to be false in material points, and therefore committed an offence punishable under section 200 IPC.
46. Having said so, it is clear that the prosecution has been able to establish its case against the accused beyond the shadow of reasonable doubt. The accused is accordingly held guilty and is convicted for the offences punishable under section 193, 199 and 200 IPC.....".
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 23 of 39 (17) Hence, I note that the impugned judgment dated 31.03.2018 as highlighted above is a well crafted judgment and has been passed after due appreciation of evidence. (18) Firstly, the appellant intentionally filed a false writ petition along with the affidavit before the Hon'ble High Court showing that it was not in his knowledge that the said Pooja was not the wife of his brother Raj Kumar.
(19) Secondly, during the arguments before the Hon'ble High Court, on the specific query of Hon'ble Justice, he stated that his brother was a bachelor and in this regard the observations of Hon'ble Delhi High Court are very important, which are as under:
"....all these documents coming from Govt. record and the public school besides the photograph clearly show that the said Pooja was the legally wedded wife of Raj Kumar brother of Petitioner No. 1. It is quite shocking that in the entire petition and the complaint made by the petitioner nowhere the said relationship with Pooja has been disclosed by the petitioner. Not only this, Petitioner No. 1 has the audacity to mislead this Court by clearly denying the said relationship and further went to the extent of saying that Raj Kumar was a bachelor and he never got married...."
(20) It is admitted fact that the said order of the Hon'ble High Court dated 04.11.2009 was not challenged before the Hon'ble Supreme Court. Further, no cross examination of the witnesses Sh. Parmod Kumar (PW1) and Sh. Gopal Sharma advocate (PW5) was conducted to this effect i.e. whether any statement regarding the relation of Pooja with Raj Kumar was made by the appellant before Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 24 of 39 the Hon'ble Delhi High Court or not or that the contents of the affidavit was not in his knowledge.
(21) Thirdly, the appellant in his statement under Section 313 Cr.PC, again gave false answer that it was not his knowledge whether Pooja was the wife of his Raj Kumar or not. It is settled law that if an accused gave false answers during the statement recorded under Section 313 Cr.PC, then this circumstance can be taken into consideration against him.
(22) Fourthly, the statement Ex.PW2/A recorded by ASI Charan Dass Chauhan (PW2) clearly shows that it was in the knowledge of the appellant that Pooja was the wife of Raj Kumar. The relevant portion of the statement Ex.PW2/A is reproduced as under:
".... 1998 main mere bhai Raj Kumar ne Pooja name ki ladki se love marriage kar li thi, jo hamin chhod kar kahin alag rahne laga tha or uske do ladke sahil and chahat hain.... aaj dinank 3.5.2009 ko subah mere swarigay bhai Raj Kumar ki patni Pooja apne dono bachho Sahil and Chahat ko lekar hamare ghar par apna saman lekar aa gai....."
(23) I may note that during the trial ASI Charan Dass Chauhan (PW2) was not cross examined on material particulars and he withstood the test of cross examination. I may observe that law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon, rather the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy. [Reference in Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 25 of 39 this regard is made to the judgment in the case of Anil @ Andya Sadashiv Nandorkar Vs. State reported in J.T. 1996 (3) SC 120 wherein it has been held that "....testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable...".
(24) Fifthly, the status reports filed by the SHO Farsh Bazaar before the Hon'ble Delhi High Court show that it was in the knowledge of the appellant that Pooja was the wife of his brother Raj Kumar. It has been specifically mentioned in the status report that Pooja performed the Terhanvi ceremony of husband in the property in question and was still residing there along with her two minor sons.
(25) Sixthly, the service record of deceased Raj Kumar, report of Local Commissioner filed in the court of Sh. Pulastya Paramachala, Ld. CCJ and cases pending between the parties shows that it was in the knowledge of the appellant that Pooja was the wife of his brother.
(26) Lastly, it is settled law that the act of filing false affidavit and making false statement in a court of law comes within the purview of Sections 193/199/200 IPC. Reference in this regard is made to the case of Mahesh Tiwari vs State of UP and Another wherein in an application under Section 482 No.12840 of 2016, Hon'ble Allahabad High Court, while relying on the judgments of Hon'ble Supreme Court and other High Courts observed as under:
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 26 of 39 "...The giving of false evidence amounts to practicing of fraud upon the court. Thus to make a statement of false evidence within the meaning of this section, it must be established that the person was legally bound by an oath or an express provision of law (a) to state the truth, or (b) to make a declaration upon any subject..."
(27) I may also observe that in certain cases, the law requires a declaration from a person on verification in a pleading, and if such a declaration is made falsely it will come under this clause. Section 191 and 192 of the Indian Penal Code deal with perjury and filing of false affidavit in pleadings would be covered under Section 191 which deals with evidence on oath and Section 192 with fabricating false affidavits; the offence under Section 191 IPC is constituted by swearing falsely when one is bound by oath to state the truth because a declaration made under an oath. The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within Section 192 which, inter alia, lays down that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceedings is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceedings. Therefore, in a case where the declarations in affidavits which are tendered in the Court to be taken into consideration, the authors of the affidavit clearly intend the statement to appear in Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 27 of 39 evidence in a judicial proceedings and so appearing, to cause the Court to entertain an erroneous opinion regarding the compromise, therefore, the offence would fall within Section 191, 192 which is punishable under Section 193 IPC, therefore, it was held that the authors of the affidavits were guilty of offence of giving false evidence or fabricating false evidence for the purpose of being used in judicial proceedings. Reference in this regard is made to the case of Baban Singh and Anr. Vs. Jagdish Singh and Ors. reported in AIR 1967 68.
(28) Further, where a verification is specific and deliberately false, there is nothing in law to prevent a person from being proceeded for contempt. But it must be remembered that the very essence of crimes of this kind is not how such statements may injure this or that party to litigation but how they may deceive and mislead the courts and thus produce mischievous consequences to the administration of justice. A person is under a legal obligation to verify the allegations of fact made in the pleadings and if he verifies falsely, he comes under the clutches of law. Consequently, there cannot be any doubt that if a statement or averment in a pleading is false, it falls within the definition of offence under Section 191 IPC.
It is not necessary that a person should have appeared in the witness box. The offence stands committed and completed by the filing of such pleading.
(29) I may observe that in the case of Ranjeet Singh vs. State of Pepsu reported in AIR 1959 SC 843 the accused, a police officer, Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 28 of 39 was called upon to make a statement against an application under Article 226 of the Constitution for a writ of habeas corpus in which it was alleged that the accused had illegally detained a man in police custody. In his written (statement), the accused filed an false affidavit denying that the man was never arrested by the police or was in his custody. It was held that the accused was legally bound to place the true facts before the court in his affidavit and since the statements made by him in the affidavit were found to be false, it was held that he has committed the offence under Section 193 IPC for giving false evidence as defined in Section 191 IPC. (30) 'Affidavit', I note, is 'Evidence' within the meaning of Section 191 IPC and a person swearing to a false affidavit is guilty of perjury. The definition of the offence of giving false evidence applies to the affidavits. [Ref. Parag Dutt vs. Emperor reported in AIR 1930 Oudh 62 (63)].
(31) In the case of Dhananjay Sharma Vs. State of Haryana and other, Writ Petition (Crl.) 15 of 1994, the Hon'ble Supreme Court has observed as under :
"....The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 29 of 39 the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message perculates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice. In Chandra Shashi v. Anil Kumar Verma, [1995] 1 SCC 421, the respondent produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed :
"...the stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 30 of 39 fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice...."
(32) Also, in Re: Suo Moto Proceedings Against ... vs Unknown reported in AIR 2001 SC 2204, the Hon'ble Supreme Court has observed that:
"...... The respondent submitted before us that the averments made by him in his writ petition were correct and that he was not guilty of perjury. Alternatively he submitted that he had no knowledge of the passing of the order by the President of India in 1991, prior to 2nd December, 2000.
Court are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts. if the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 31 of 39 sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.
At common law courts took action against a person who was shown to have made a statement, material in the proceedings, which he knew to be false or did not believe to be true. The offence committed by him is known as perjury. Dealing with the history of the offence, Stanford H. Kadish in "Encyclopedia of Crime and Justice" (Vol. 3) observed:
"History of the offence Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English common law was developing, trial by battle was used to test a sworn accusation. Similarly, for the sworn denial of a serious charge based on mere suspicion, an ordeal administered by a priest was the predominant mode of trial until it was abolished in 1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by "compurgation", that is, by obtained a sufficient number of "oath helpers" to support the defendant's credibility.
Trials in the modern sense began to develop only in the thirteenth century. Little is reliably known about the conduct of jury trials prior to the sixteenth century, but in civil cases, it seems that genuine witnesses were permitted to give their accounts, although they could not be compelled to appear. In early criminal cases, the jury seems always to have included some who, aware of the commission of a Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 32 of 39 crime in their community, brought the suspect before a judge. Those witnesses who did attend jury and retired with them to deliberate, often to make their disclosures in secret. It was the verdict, not the testimony, that was perceived as either true or false; the only remedy for falsehood remotely akin to a perjury prosecution was a seldominvoked procedure called "the writ of attaint," created in 1202 and not abolished formally until 1825. Though attaint, the jury would be punished for a 'false' verdict and the verdict itself overturned.
Witness first testified under oath in criminal cases on behalf of the Crown in the sixteenth century. No witnesses for the defense were permitted until the midseventeenth century, since they would have been witnesses against the Crown, and not until 1702 were defense witnesses permitted to be sworn (1 Anne, St. 2, c.9, s.3 (1701) (England) (repealed)). By the late seventeenth century the jury had lost all its testimonial functions, and witnesses thus became the sole means of bringing facts to the judge's and jury's attention.
Since the early common law had no established mechanism for dealing with false swearing by witnesses, the Court of Start Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 (Star Chamber Act, 3 Hen. 5, c. 1 (1487) (England) (repealed)). The first detailed statute against false swearing was enacted in 1562 (5 Eliz. 1, c.9 (1562) (England)(Repealed)). When the Star Chamber was abolished in 1640, its judicially defined offense of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute.
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 33 of 39 Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute, published in 1641, that perjury was committed when, after a 'lawful oath' was administered in a 'judicial proceeding', a person swore 'absolutely and falsely' concerned a point 'material' to the issue in question (*164). In this form, the law remained unchanged into the twentieth century."
In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to service, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country...."
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 34 of 39 (33) It is writ large from the evidence which has come on record that the appellant Narender Kumar has never disputed the court proceedings dated 11.08.2009 nor it has been his case that his version has been wrongly or incorrectly or incompletely recorded by the Delhi High Court nor any such stand has been taken during the trial. The careful perusal of the proceedings and the comparison with the previous versions makes it clear that the statement made by the appellant before the Delhi High Court wherein he denied the relationship of Ms. Pooja being the legally wedded wife of his brother Raj Kumar and claimed that his brother Raj Kumar was a bachelor and was never not married, was on the face of it false. There was no occasion for the appellant to have claimed before the Hon'ble Delhi High Court or to say that his brother was was never married and was a bachelor, even if he had disputed the identity of the said lady Pooja who had come to his house to be the one to whom his brother had married or even if there was a dispute on the validity of the said marriage.
(34) I may further observe that the statement made by the appellant before the Delhi High Court were in judicial proceedings and hence apparently false to the knowledge of the appellant. No explanation has been given by the appellant as to how he claimed his brother to be unmarried or a bachelor when he himself stated before the police officials on 04.05.2009 that his brother had married a lady Pooja and they were having two children aged 8 and 10 years. It is also writ large that the appellant had been meeting his brother during Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 35 of 39 the intervening period since he had informed the police officials that his brother had helping in medical treatment of their mother through CGHS and hence, he cannot now claim that he had no knowledge of the marriage (Section 191 Indian Penal Code - Explanation - 1 covers verbal statement).
(35) Further, once the Hon'ble Delhi High Court had directly made query from the appellant, he was legally bound to state the truth and it is not open for him to make any statement particularly when it is false. The appellant being aware of the factum of the marriage of his brother Raj Kumar with a lady Pooja, even though believing his version that he was not aware of her identity, he could not have concealed the factum of said marriage and in the entire Writ Petition, wherein he had been continuously referring to Pooja as an unidentified or unknown lady and then claimed before the Hon'ble Court that his brother Raj Kumar was never married or that he was a Bachelor. The entire proceedings in totality, establish the concealment of material fact in the Writ Petition and the fact that the appellant had made false statements before the Hon'ble Delhi High Court which he knew and believed to be false in order to secure a favourable order from the Hon'ble Delhi High Court. (36) Hence, the appellant having made a false statement under Section 191 Indian Penal Code intentionally in judicial proceedings for the purpose of being used in any stage of the judicial proceedings, had committed an offence under Section 193 Indian Penal Code. Further, the appellant having made statements in the Writ Petition Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 36 of 39 before a Court of Justice (Delhi High Court) which he knew to be false or believed to be false or did not believe to be true, touching on the points material to the object for which the declaration were made, had committed an offence punishable under Section 199 Indian Penal Code. The appellant had also corruptly used or attempted to use true such declaration, knowing the same to be false in material points and hence committed an offence punishable under Section 200 Indian Penal Code. This being the background, the conviction of the appellant Narender Kumar by the Ld. Trial Court under the provisions of Sections 193, 199 and 200 Indian Penal Code is hereby upheld.
(37) Now coming to the aspect of sentence. The Ld. Trial Court has sentenced the appellant to Rigorous Imprisonment for two years each and fine of Rs.20,000/ each for the offences punishable under Section 193, 199 & 200 Indian Penal Code and to undergo Simple Imprisonment for one month each in default of payment of fine. I have duly considered the facts before me. The appellant Narender Kumar aged about 43 years is the sole bread earner of his family with the responsibility of widow sister and one unmarried sister and had been facing the agony of trial for the last nine years. No doubt, having polluted the stream of justice, he needs to be dealt with appropriately to create a deterrent effect in the mind of prospective offenders, yet at the same time, while balancing the aggravating and mitigating factors, I feel that the sentence awarded by the Ld. Trial Court would be too harsh. The sentence dated 04.04.2018 is hereby Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 37 of 39 modified as under:
For the offences punishable under Sections 193, 199 and 200 Indian Penal Code, the appellant / convict shall undergo Rigorous Imprisonment for a period of One Year each and fine to the tune of Rs.20,000/ each. In default of payment of fine the appellant / convict shall undergo Simple Imprisonment for a period of one month each. All the substantive sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the appellant/ convict for the period already undergone by him, if any.
(38) I am informed that the appellant / convict has already deposited the fine amount of Rs.60,000/ (i.e. Rs.20,000/ each for the offences punishable under Sections 193, 199 & 200 Indian Penal Code) and has never remained in Judicial Custody. The appellant is directed to be taken into custody for serving the sentence as aforesaid.
(39) The appellant / convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 38 of 39 (40) Copy of this judgment be supplied to the appellant / convict free of cost.
(41) Appeal is accordingly disposed off as Partly Allowed on the point of sentence. Trial Court Record be sent back along with the copy of this judgment.
(42) Appeal file be consigned to Record Room.
Digitally signed KAMINI by KAMINI LAU
LAU Date: 2018.08.31
18:02:58 +0530
Announced in the open Court (Dr. KAMINI LAU)
Dated: 31.08.2018 Spl. Judge (P.C. Act) CBI01
(Central), Tis Hazari Courts, Delhi
Narender Kumar Vs. State, Crl. Appeal No. 08/2018, Judgment Dt. 31.08.2018 Page No. 39 of 39