Delhi District Court
Sh. Malkiat Singh vs Paropkar Singh S/O S. Mahender Singh on 25 April, 2018
IN THE COURT OF
Dr. S.K. GAUTAM : ADDITIONAL SESSIONS JUDGE - 03
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
CRIMINAL APPEAL No. 105 of 2016
Sh. Malkiat Singh
S/o S. Mahender Singh
R/o Flat No. 58, Pocket-E,
Mayur Vihar, Phase-II,
Delhi - 110 091. .... Appellant
Vs.
1. Paropkar Singh S/o S. Mahender Singh
2. Smt. Darshan Kaur (Expired)
3. S. Jaswinder Singh
4. Devinder Singh (Proclaimed Offender)
5. Ms. Usha Rani
(No.2 to 5 are wife, sons, daughter of No.1)
All R/o Vill. Khadiala, Sanian,
PS Bullhowal, Distt. Hoshiarpur, Punjab.
6. Mahender Singh (Expired) S/o Ram Singh
7. Smt. Balwinder Kaur
8. Sarabjeet Singh
(All R/o Vill. Jhanjhowal (Rampur)
PS Mahilpur, Distt. Hoshiyarpur, Punjab.
9. Smt. Kuldeep Kaul W/o Satnam Singh
R/o H. No. 117, Bhagwan Nagar,
Ashram, New Delhi-110014.
10.Surender Singh (Proclaimed offender)
11.Sarabjeet Singh
12.Smt. Paramjeet Kaur W/o Sarabjeet Singh
(All R/o L-2/2, Sujan Singh Park, New Delhi.
..... Respondents
Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 1 of 11
Date of Institution : 09.02.2015
Judgment Reserved on : 24.04.2018
Date of Judgment : 25.04.2018
C.C. No. : 3243/08
P.S. : Trilokpuri/Pandav Nagar
Under Sec. : 453/34 IPC.
JUDGMENT
1. The present appeal under Sec. 372 Cr.P.C. has been filed against the impugned judgment dated 24.12.2014 passed in the complaint case tiled as "Malkiat Singh Vs Paropkar Singh and Ors." bearing No. 3243/08 PS Trilok Puri/ Pandav Nagar, Delhi under Sec. 453/34 IPC whereby all the accused persons have been acquitted.
2. Notice of the present appeal has been issued to the respondents. Ld. counsel for some of the the respondents appeared and TCR summoned.
3. Ld. counsel for the appellant contended that the impugned judgment is based upon assumptions and presumptions, surmises and conjectures, subjective motions bereft of objective appreciation of material brought on record incorrect perspective considering the natures of offences and the attending peculiar facts and circumstances of the case hence, legally unsustainable. It is further submitted that the Trial Court has committed grave error of the fact and law while appreciating the evidence to arrive at the conclusion that the prosecution has miserably failed to bring home the guilt against the accused person (respondents herein). Instead of appreciating the testimony of witnesses in totality, it has been read in piecemeal. It is also contended that the trial court Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 2 of 11 has placed undue reliance on the irrelevant material while relevant material has been overlooked. The material warranted adverse inference against the accused. It has been drawn against the appellant herein without any cogent rhyme or reason which is legally unsustainable. It is submitted that the findings by Ld. Trial Court vide impugned judgment are patently perverse and bad in law.
4. Ld. Trial Court failed to appreciate that the genuineness of the police complaints, telegram, AD cards, duly exhibited on the record was not questioned/challenged/disputed by the accused persons at any stage much less in cross-examination of the complainant, hence, the observation is contrary to law and legally unsustainable. The de facto exclusive possession of the complainant qua the subject premises/flat was also not disputed by the accused persons. Rather the same is explicitly borne out from the record such as DD entry proved on record and the deposition of witnesses. The accused never claimed their possession qua the flat. Hence, the finding to the contrary in the impugned judgment is clearly unsustainable. The alleged Will dated 09.09.1994 in favour of accused Paramjit Kaur has never seen the light of the day, it was not propounded for probate before a competent court and no claim ever made on that basis qua the flat. It is also argued that the accused did not step into witness box to prove the alleged 'Will' in accordance with law, hence of no avail. Apparently the alleged 'Will' was registered after a month of the death of testator in the office of Sub Registrar in suspicious circumstances without the fulfillment of the sine qua non conditions. Who presented the 'Will' for registration and under what authority and the statutory satisfaction of the Sub Registrar is not at Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 3 of 11 all discernible from perusal of the alleged will Ex.DW1/1 purportedly in favour of accused Paramjit Kaur. The sine qua non conditions to attract the statutory presumptions have not been proved at all and rendering the findings of the trial Court legally unsustainable. In nutshell the alleged will Ex. DW1/A has not been registered in accordance with law, hence, of no consequence. The attendant peculiar cloudy circumstances qua the said Will has not been dispelled at all, still the same has been placed undue reliance by Ld. Trial Court. The exclusive possession of the complainant over the subject flat/premises stands overwhelmingly admitted from the tenor of the DD No. 21B Ex. CW4/1 recorded at the instance of accused Paramjit Kaur and duly proved on record. This vital aspect did not consider by Ld. Trial Court in right perspective and has been overlooked while authoring the impugned judgment. The contradictory stands taken by the accused Usha Rani and Davinder Kumar as per their suggestions in cross-examination to the complainant and answers in their statements recorded under Sec. 313 CrPC regarding their alibi on the date of incident warranted adverse inference to be drawn against them as per settled law. The accused failed to lead any DE to prove their alibi. But this vital aspect has been discarded by ld. Trial Court without cogent rhyme or reason. It is also argued that it is worth noting that CW2 had no oblique motive which is apparent from his cross- examination and there was no just reason to disbelieve his statement. Contrary to the observations of the Ld. Trial Court, this witness is quite truthful and reliable as nothing adverse have been elicited in the cross-examination to impeach his credibility. The complainant had filed cases against Dr. P. Avtar in Punjab and Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 4 of 11 had adverse interest is not borne out from the record. Rather he was impleaded as a proforma defendant and the main relief was sought against accused Paropkar Singh whereas, accused Paropkar Singh had filed case against Dr. P. Avtar having evil eye on his property for which litigation is still pending. Be that as it may, the proving/disproving of the Will favouring the appellant would not wipe out the fact of de facto possession of the appellant qua the flat in question which is continuing as on date. The story regarding appointing the complainant/ appellant as her GPA by the accused Paramjit Kaur holds no truth and she failed to step into witness box to discharge onus despite sufficient opportunities hence, calling for adverse inference on this score. Ld. Trial Court has failed to appreciate the testimony of the witnesses and other evidence produced on record. Notwithstanding, acquitting the accused already declared proclaimed offender reflects casual approach in sheer disregard of law. Ld. Trial Court even failed to obtain fresh bail bonds from the accused as per mandate of Section 437-A Cr.P.C. and accepted more than decade old bail bonds in a mechanical manner without verifying the current status of sureties. The appellant has been seriously prejudiced on account of such a casual approach of the trial Court. The impugned judgment suffers from glaring infirmities and incorrect approach hence, bad in law under the facts and circumstances of the case, it is prayed that just acquittal is liable to be set aside and hence, prayed for conviction. To buttresses his submissions, ld. counsel has placed reliance on the cases reported as Jummi & Ors. Vs. State of Haryana, 2014 (3) Crimes 14 (SC) and Binay Kumar Singh Vs. State of Bihar, 1997 SCC (Crl.) 333.
Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 5 of 11
5. As per the brief factual matrix the complainant/appellant has been in the exclusive possession of a DDA flat no. 58, Pocket-E, Mayur Vihar, Phase-II, Delhi-91 and lives therein along with his family in the capacity of owner thereof after demise of his brother Dr. P. Avtar by virtue of Will left behind by the deceased/allottee. On 05.04.1998, the complainant/appellant had gone to his native village in Punjab along with his ailing wife after locking the said flat. Taking advantage of the absence of complainant, all accused persons/respondents along with other accomplices had come to his flat with one property dealer with a view to trespass into the flat. They with the help of a key maker managed to make duplicate master keys of the two locks of the front door of flat and opened the same. While they were in process of making duplicate master key of lock of inner door, one neighbour of the appellant herein intervened. In the meantime, his nephew Kuldeep Singh arrived there to see his ailing wife, also intervened and questioned the accused persons who were known to him on which, accused persons misrepresented them by saying they have court orders. Neighbour of the appellant called PCR and police came and apprehended some of the accused persons while other managed to flee and in this regard, DD No. 21-A dated 11.04.1998 was registered at PS Trilokpuri. The complainant has also filed a complaint case alongwith application under Sec. 156(3) CrPC in the court.
6. Ld. counsel for the respondents has denied that the respondents ever trespassed in the alleged property by breaking the door of the house on Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 6 of 11 11.04.1998. The appellant himself went to local police on 19.04.1998 and ultimately a formal complaint was lodged in PS on 23.04.1998. Ld. Counsel argued that no pre charge evidence was recorded and notice under Sec. 453/34 IPC was sent to the respondents straightway which is highly perverse. The material prosecution witness, Raju, who sent the telegrams informing about the alleged incident to the appellant, was neither called in the witness box by the appellant nor the veracity of the telegrams proved. The appellant/CW-1 did not file any other evidence except Ex.CW1/1 in order to prove his possession over the said flat and even failed to file ration card, voter card with the address of said flat. During his cross examination, CW-1 stated that he has filed an unregistered Will Ex.CW1/1 but has no knowledge pertaining to the date and time when the said Will was executed. On 04.04.2009, appellant/CW-1 himself admitted that the Will Ex.CW1/1 was declared null and void by Sh. Sukhvinder Pal Singh Marar, Additional Collector, Hoshiyarpur in a mutation case of his village Khadala Sainiyar. Hence, the appellant miserably failed to prove its ownership and possession over the said flat. CW-2 Sardar Kuldeep Singh during his examination did not exhibit or produce any document and only affirmed the statement given by CW-1. CW-3 Brahm Singh, the key maker, during his examination failed to identify the accused and stated that no door was opened by the keys made by him. CW-3 stated that the alleged incident took place on 11.04.1998 at 2.30 pm whereas CW-2 has stated this time as 11.00-12.00 noon. Hence, the statement of CW-3 are contradictory and cannot be relied upon. Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 7 of 11
7. Ld. counsel for respondents submitted that respondent Paramjeet Kaur produced on record the registered copy of Will dated 09.09.1994 Ex.DW1/A to prove its ownership over the property which was registered on 13.10.1994 that is after the death of original owner Dr. P. Avtar Singh who died on 13.09.1994. It is stated that the litigations were filed by the appellant against Dr. P. Avtar Singh and not by the accused persons which totally diminished the legal sanctity and credibility of the Will Ex.CW1/1. The statements given by the complainant's witnesses are ambiguous and contradictory to the facts stated in the complaint. Ld. counsel for the respondents submitted that the key eye witnesses were left unexamined by the appellant. In support of his submissions, Ld. counsel has placed reliance upon the judgments i.e. (a) K.G. Premshanker Vs. Inspector of Police & Anr., (2002) 8 SCC 87; (b) Khekh Ram Vs. State of Himachal Pradesh, (2010) 1 SCC 202; (c) Dhanjibhai Prabhudas Modi Vs. State of Gujrat, Crl. Appeal No. 400/2015; (d) Inderpal Singh Vs. State of Punjab & Ors., 2016 (1) Law Herald 335; (e) Murugesan Vs. State, (2012) 10 SCC 383;
(f) State Vs. Mahinder Singh, 2006 (135) DLT 121; (g) Smt. Kanwal Sood Vs. Nawal Kishore &B Anr., (1983) 3 SCC 25 and (h) Inder Singh Vs. State, 2012 (4) ILR (Delhi) 253.
8. Ld. counsel for the respondents further submitted that neither the credibility of the prosecution witnesses could be proved nor the veracity of the exhibits produced by the prosecution witnesses could be proved. On the other hand, respondents successfully proved the possession of the flat in question by Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 8 of 11 virtue of Will dated 09.09.1994 Ex.DW1/A and the judgment passed by Ld. trial court is totally legal and justified.
9. Rival submissions considered and entire material on record including the judgments cited by parties and law on the issue in question have been gone through.
10. Perusal of the record is clear to the effect that after serving notice for the offence punishable under Sec.453/34 IPC against ten accused persons namely Parokpr Singh; Smt. Darshan Kaur; Jaswinder Singh; Devender Singh; Usha Rani; Balwinder Kaur; Sarbajeet Singh (no. 10); Kuldeep Kaur; Sarabjeet Singh (no. 14) and Prabjeet Kaur, evidence was led by the complainant. Thereafter statement of accused persons (total nine in number) were recorded and in defence, accused persons have examined DW-1, Sh. Hemant Bhatia, UDC from the office of Sub Registrar-I, Delhi, who proved the record pertaining to registration of Will on 13.10.1994. Ld. trial court after going through the entire material on record passed the impugned judgment dated 24.12.2014 whereby acquitting all the accused persons observing as under:-
".... Further, complainant has failed to examine other eye witnesses i.e. Veer Bahadaur Singh, Shiv Nath Kanojia and Raju. Complainant further has failed to produce any duplicate key allegedly got made by accused persons from CW-3 Brahm Singh which could have been vital piece of evidence in present case to prove offence u/sec 453/34 IPC against accused persons. Ex. CW-4/A is also of no help to complainant as in it, it has not been mentioned by accused Paramjeet Kaur that she opened any of the locks of flat in question on 11.04.1998.
Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 9 of 11 In view of facts and circumstances of present case, I am of the view that version of complainant is not confidence inspiring so as to convict accused persons. Accused persons are therefore acquitted for offence u/sec. 453/34 IPC.
File be consigned to Record Room."
11. Aggrieving of the said impugned judgment, present appeal is preferred on the grounds mentioned in the preceding paras.
12. One of the grounds assailing the impugned judgment is that ld. trial court did not obtain bonds as required under Sec. 437-A CrPC. To this aspect, ordesheet dated 24.12.2014 is clear to that aspect wherein ld. trial court clearly mentioned - "Bail bonds of accused stand cancelled and sureties stand discharged after expiry of period as enshrined u/sec. 437A Cr.P.C." Hence, said contention is contrary to the record and has no value in the eyes of law. Court is also of the view that if otherwise also, if court passed judgment which did not find with perversity or any illegality, said contention does not have any merit.
13. Regarding another contention of the ld. counsel for the respondents that even accused persons who were declared Proclaimed Offenders have also been acquitted is also of no value. In this regard, it is to state that from time to time Hon'ble Apex Court observed that in case no material is found against the accused persons to avoid wastage of precious time of the court. There is no bar to acquit the accused persons who have been declared proclaimed offenders.
14. Regarding other contentions raised by ld. counsel for the appellant, it is clear that ld. trial court passed the judgment in detail and discussed every aspect clearly. Ld. trial court has discussed every point in issue elaborately and Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 10 of 11 made observations with citations. Ld. trial court clearly held that provisions of the Section for which accused persons have been charged are not fulfilled. Cases cited by the ld. counsel for the appellant are not applicable to the present matter. Each case has to be seen from its own facts and circumstances.
15. With above discussion, court is of the view that there is no illegality and perversity in the judgment passed by the trial court. The present appeal does not found any merits and deserves dismissal. It stands dismissed accordingly.
16. A copy of this judgment be placed in the TCR and same be sent to court concerned immediately.
17. Appeal file be consigned to Record Room.
Announced in open court SATINDER Digitally signed by SATINDER KUMAR GAUTAM on 25th day of April, 2018 KUMAR GAUTAM Date: 2018.04.25 14:21:20 +0530 (Dr. S.K. Gautam) Addl. Sessions Judge-03 (East): KKD Courts: Delhi. Crl. Appeal No. 105/16 Malkiat Singh Vs. Paropkar Singh & Ors. Page No. 11 of 11