Delhi District Court
State vs . Vinod Singh & Ors. on 16 May, 2013
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IN THE COURT OF SH. SUMEDH KUMAR SETHI, MM,
ROHINI COURTS, DELHI
1. FIR No. : 452/03
2. Date of Offence : 08.04.2002
3. Name of the complainant : Sh. Mahesh Prasad
4. Name, parentage and Address
of the accused : 1. Vinod S/o Jagat Singh,
R/o B- 463, Gali No. 12, Prem
Nagar, IInd, Delhi
2. Usha, W/o Sh. Vinod Singh,
R/o B- 463, Gali No. 12, Prem
Nagar, IInd, Delhi
3. Dev Kant, S/o Late Sh.
Chakra Dhari,R/o B-483, Prem
Nagar, Iind, Delhi
4. Ashok Kumar Jha, S/o Dev
Kant Jha, R/o B-483, Prem
Nagar, IInd, Delhi
5. Offences complained of : Section
419/420/468/471/120B/323
IPC
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 01/05/2013
8. Sentence or final order : Accused acquitted
9. Date of order : 16/05/2013
FIR No. 452/03
PS Sultanpuri
State Vs. Vinod Singh & Ors.
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JUDGMENT
1. The case of the prosecution in brief is that on 08.04.2002, accused Vinod Singh, Usha and Dev Kant Jha agreed to cheat the complainant Mahesh Prasad by executing forged documents qua property bearing no. 28 measuring 30 sq. yards, khasra no. 1161, Village Kirari, Suleman Nagar, Prem Nagar II as complainant was induced to purchase abovesaid mentioned property from the accused Usha through accused Dev Kant Jha and the accused Vinod Singh agreed to witness the documents presenting the accused Usha as Anita Kumari and thus all of them committed an offence punishable U/s 120B IPC. Secondly, on the aforesaid date, in furtherance of this criminal conspiracy, the accused Usha cheated complainant by pretending to be Anita Kumari as executant of documents and the accused Vinod Singh witnessed that document pertaining to above mentioned property in favour of the complainant and thereby committed an offence punishable U/s 419/120B IPC. Thirdly, on the abovesaid date, in furtherance of this criminal conspiracy, they prepared a forged document i.e GPA, Will, Agreement to Sell, Receipt, Affidavit, Possession Letter qua the questioned property depicting the same to be executed by Anita Kumari, intending the same to be used for the purpose of cheating and the same documents were being registered and hence used and thus all of them thereby committed an offence punishable U/s 468/471 R/w 120B. Fourthly, on the abovesaid date, in furtherance of this criminal conspiracy, they cheated complainant Mahesh Prasad by dishonestly inducing him to FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
3 of 43 deliver consideration amount of Rs. 76,000/- for purchasing the above mentioned property which he accordingly delivered being deceived in such manner and all of them thereby committed an offence punishable U/s 420 R/w Section 120B IPC and lastly the accused Dev Kant Jha and Ashok Kumar Jha on 12.01.2003 at about 05.00 pm at the house of Vinod Singh caused simple hurt to complainant and thereby committed an offence punishable U/s 323 IPCt.
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to the accused in compliance of Section 207 Cr. P. C. Thereafter, charge was framed against the accused under Section 419/420/468/471/120B/323 IPC to which they pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 8 witnesses. PW-1 is Mahesh Prasad, PW-2 is Anita Devi, PW-3 is HC Satnam Singh, PW-4 is Inspector Yashpal Singh, PW-5 is Inspector Yashvir Singh, PW-6 is HC Naseeb Singh, PW-7 is SI Dinesh Dahiya, PW-8 is SI Surya Prakash. It is pertinent to mention here that the matter pertains to year, 2003 and after granting several opportunities, PE was closed.
4. All the concerns have been heard. Material on record perused. Submissions considered.
5. Now, PW-1 Mahesh Prasad submitted that accused Dev Kant Jha used to collect chit where he was residing in the year, 2002 FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
4 of 43 i.e Inder Puri, Delhi. In lieu of collecting chit, Dev Kant Jha used to give plot of land. Family members of Dev Kant Jha were also residing at Prem Nagar II, Kirari and Inder Puri. From January, 2002, he started paying Rs. 1500/- to Dev Kant Jha as he offered him the plot of land. He also paid Rs. 1500/- in the name of one Ram Nand Verma. Accused Dev Kant Jha showed him a plot of land in February, 2002 and instructed him not to disclose said facts to anybody else. It was 60 sq. metre and two rooms were already built up. The total consideration amount was fixed at Rs. 76,000/- and he paid Rs. 11,000/- as earnest money on 26.02.2002. He issued him receipt to that effect which he had already handed over to the police. In the month of March, Dev Kant Jha offered him to pay Rs. 50,000/- and he could hand over the possession of the said plot to him. In the same month, i.e March, 2002, he had paid Rs. 32,600/- to Dev Kant Jha and he issued a receipt to that effect. Then Dev Kant Jha demanded Rs. 1,50,000/- for the said plot but witness refused to pay further. Dev Kant Jha then collected some fellow members of the accused to pressurize him to come to a negotiation which he obliged and only 7 days were given to him by which he was forced to make full payment of Rs. 76,000/- and only thereafter he could be handed over the possession of the land. He came to know that the said plot of land was of one lady Anita who was residing at Assam at that time. The said plot was in possession of one tenant but he do not remember his name at that time. One Vinod came to him with Dev Kant Jha introducing himself as a Officer in MCD and showed him a FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
5 of 43 house as belonging to him. He told him to make payment to Dev Kant Jha and took the responsibility of getting the document registered in his favour by Anita Devi. Dev Kant Jha issued him a receipt subscribing thereon that he had been paid Rs. 66,000/- and remaining payment was to be made by 08.04.2002 and if remaining amount would not be paid by that date, his amount would be forfeited. On 08.04.2002, he went to the house of Dev Kant Jha in the morning and offered Rs. 10,000/-. He told him to hand over the same with 4 photographs and leave from there but he had not agreed. He asserted to accompany him with 4 witnesses from his side to Registered Office. He alongwith Vinod Singh, Dev Kant Jha and Ashok Kumar went to Kashmiri Gate, documents were got typed there and put before him for signing the same. He handed over his photographs, signed the documents and put thumb impression on the same which he handed over to the police which are GPA Ex. PW-1/A(running into 2 sheets), Will Ex. PW-1/B, agreement to sell(running into 2 sheets) Ex. PW-1/C, Receipt Ex. PW-1/D, affidavit Ex. PW-1/E and possession letter Ex. PW-1/F. In the evening, he alongwith Vinod Kumar came at plot and possession was handed over to him. After opening the lock of the room, he offered to get the room repaired and requested for the key. He obliged him and handed over the key to Vinod Kumar. In the month of May, 2002, he shifted to said premises i.e Khasra no. 1160, Prem Nagar - II, Delhi. In the month of May, 2002, one Kailash Chand Meena came to him and showed chain of documents to the effect that he was FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
6 of 43 authorized to sell the said premises and he could dispossess him from the premises. However, he remained in peaceful possession till October, 2002 when he shifted to a nearby house on the occasion of Durga Puja for proper accommodation. Taking benefit of the same, Kailash Chand Meena tied his pet animals i.e Cow and Buffaloes in his premises. Some local residents objected to the same but he alongwith one Kishan Singh Meena threatened those public persons claiming themselves to be the owner of the said plot and further threatened to break the wall and dispossess him. They showed the chain of documents to the said public persons also. He also furnished his documents and then came to know that it was only 30 sq. metres and the photograph was of wife of Vinod Singh (who was present in the Court that day). He also came to know that it was not Anita Devi from whom he was shown to purchase the premises. He was threatened by Dev Kant Jha not to lodge any report against them. On 12.01.2002 in the evening, he was assaulted by male accused persons alongwith their accomplices. However he was rescued by local residents. He informed DCP of the incident, After his great efforts, he could succeed in lodging complaint Ex. PW-1/G bearing his signature at pt. A. Accused Usha Devi was present at the time of execution of documents, the photograph of Usha Devi and his was got snapped in the Registrar Office itself and pasted on documents in his presence itself. Accused Vinod also signed the said documents as a witness. All the accused were present in the Court that day were correctly identified. He is still in FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
7 of 43 possession of the said premises. In his cross examination, he stated that he had studied upto Xth standard. At the time, he was residing at Inder Puri. This incident took place in the year, 2002. Mr. Dev Kant Jha came with the proposal of selling of plot and Mr. Dev Kant Jha has also instructed him not to discuss the matter with anybody else about the purchase of property. He had been shown a plot measuring 60 sq. yards. There were two room, one small and one big of temporary nature and there was one gate also. He had not measured the length of the plot which was shown to him at that time. His deal was struck for plot for Rs. 76,000/-. This included the built up area alongwith accessories. Rs. 11,000/- paid as an advance for the sake of purchase of plot. It was agreed that Rs. 1500/- for the sake of committee will be paid and thereafter, on completion of entire amount of Rs. 76,000/-, the possession of the plot will be handed over. Receipt of Rs. 11,000/- was issued to him by Sh. Dev Kant Jha. He had given the relevant receipt to the police officials. He admitted that Mr. Dev Kant Jha asked him to deliver Rs. 50,000/- so that he can hand over the possession of the plot. This proposal was given to him in the month of March, 2002. He was not able to manage Rs. 50,000/- as agreed but he had paid Rs. 32600/- in the same month. Mr. Dev Kant had issued him receipt in lieu of the amount paid i.e Rs. 32600/-. He had already given the original receipt to the police officials. He further deposed that on that day, he was not in position to show the receipt to the Court and that he could show the photocopy of receipt to the Court on the next date and that he FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
8 of 43 had paid Rs. 22,500/- and had received a receipt issued by Sh. Dev Kant Jha. He had not brought the original/photocopy in the Court. He came to know about these facts in the Month of October, 2002 near Durga Pooja. On the day of 08.04.2002, he Mahesh Prasad went to the house of Sh. Dev Kant Jha at Inder Puri. Accused asked him to deposit Rs. 10,000/- and alongwith four passport sized photographs. Thereafter, he would effect the registry of transfer of said plot. He had also given Rs. 10,000/- on the same day and accused had not issued him receipt in lieu of the amount taken by him. He alongwith Dev Kant Jha, his son Ashok Jha and Vinod Singh went to the Registrar's Office at Kashmere Gate where he stood as surety before Registrar. At the time when documents were being purchased and prepared/typed, he was alongwith Dev Kant Jha and his son Ashok Jha and Sh. Vinod Singh. He has not seen the prepared documents whether they were prepared for the land measuring 30 or 60 sq. yards. He further deposed that he was not allowed to go through the contents of the said prepared documents and the said fact was not disclosed before the Registrar concerned as it was not thought rightly. The prepared documents were signed by him on faith of Govt. employee Vinod Singh and one Sh. B. S. Verma, Advocate who were witness. The attested documents from the office of Sub Registrar, Kashmeri Gate were handed over to him at the plot in question which he purchased. Thereafter, the peaceful physical possession of plot in question by Sh. Dev Kant Jha in the presence of Vinod Singh and Ashok Jha was handed over to FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
9 of 43 him by handling over the keys of the said plot. At the time of his deposition, he was residing in the half portion of the plot. After taking the peaceful possession over the plot in question, he made worship place in the half portion of the plot and the other half portion was used to reside alongwith his family. He denied that he knows Dev Kant Jha, Vinod, Usha and Ashok personally because they were residing in the same locality and they know each other for a long time before the deal was struck. Then, Court questioned him that whether Anita sold the entire property to Smt. Usha on 11.06.2001 measuring 60 sq. yards or not as per the statement recorded U/s 161 Cr. P.C by IO dated 18.07.2003. On which, he replied that he did not know and that he had not been shown the previous chain of documents executed in the name of Usha, Anita and Chander Prakash relating to the plot in question by Vinod Singh and denied that documents were purchased by Mahesh Prasad and Dev Kant Jha and there was a typographical error in the name of Usha which was typed in the name of Anita. He was then cross examined by Sh. Jitender Kumar, Ld. Counsel for the accused Dev Kant Jha and Ashok. That day, he had not brought the documentary proof in respect of the money which he had given in the committee(Chit Fund) to Ashok Jha and Dev Kant Jha during the period of January, 2002 to December, 2002. At the time of agreement/bayana, the chain of documents of the plot in question were shown to him by Dev Kant Jha which were executed in the name of Anita Kumari W/o Sh. Raghunath Singh R/o Anand Parbat. He further deposed that he had given Rs.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
10 of 43 11,000/- initially to Sh. Dev Kant Jha as Bayana amount in respect of purchasing the plot in question. During vigilance police inquiry, he had given the original documents and he had brought one document i.e Ex. PW-1/D1 wherein cash of Rs. 11,000/- was given on 26.02.2002 to Dev Kant Jha in presence of one Ramanand Verma (Ld. Counsel for the accused objected to the production of document at that stage). He further deposed that he did not know the address of the said Ramanand and no police complaint was lodged against the accused persons regarding trespass done by them on his land and that no civil suit was filed in the Court regarding dispossession from the half portion of the plot in question by the accused. There was no signature of Dev Kant Jha on the exhibited documents of the property and that he received injuries by the attack of Dev Kant Jha and Ashok. He was got medically examined by the police and that there is no MLC regarding this on record. He further denied that all the exhibited documents were got prepared by him or no quarrel took place between him and the accused persons or the accused persons Dev Kant and Ashok had been falsely implicated in this case due to previous enmity and that the photographs of the impugned plot were taken in his presence.
6. PW-2 Anita Devi after refreshing her memory submitted that her husband was an Army personnel and previously she was residing at Jhansi(UP) at Army Aviation Base, Workshop, Jhansi alongwith her husband and children. Before the posting of her husband at Jhansi, she was residing at paternal house i.e at FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
11 of 43 Than Singh Nagar, Anand Parbat, Karol Bagh, Delhi. Her friend Smt. Usha was well known to her as she was also residing at Anand Parbat in the same locality nearby her paternal house and they both were very close friends. She did not remember the month however, it was the month of the year 1995. A plot of land measuring 60 sq. yards was purchased in the locality of Prem Nagar II having its number B-466 from one property dealer namely Chander Prakash Tripathi and the said plot of land was situated near the residence of his friend Usha were she was residing as tenant. Due to some financial implications/crises, the said plot was sold to her said friend Usha in sum of Rs. 1,10,000/- in the year, 2001 by way of GPA, Agreement to sell, affidavit and receipt of Rs. 1,10,000/-. The said Notory Public attested documents were on record(executed by this witness in favour of Smt. Usha W/o Sh. Vinod Kumar R/o B-463, Prem Nagar - II, Gali No. 12, Kirari, Delhi) vide GPA Ex. PW-2/A, agreement to sell Ex. PW-2/B, Affidavit Ex. PW-2/C, receipt of Rs. 1,10,000/- Ex. PW-2/D which are bearing her signatures at pt. A as executant. The original documents in respect of purchasing the said plot from the said property dealer Chander Prakash Tripathi were handed over to her friend Usha at the time when she sold this plot to her. Documents Ex. PW-1/A i.e GPA, Ex. PW-1/B i.e will, Ex. PW-1/C i.e agreement to sell, Ex. PW-1/D i.e receipt of Rs. 25,000/-, Ex. PW-1/E i.e Affidavit and Ex. PW-1/F i.e possession letter were shown to this witness and after seeing the said documents, she stated that the documents Ex. PW-1/A i.e GPA, Ex. PW-1/B i.e FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
12 of 43 will, Ex. PW-1/C i.e agreement to sell and Ex. PW-1/D i.e receipt of Rs. 25,000/- are bearing the photographs of her friend Usha being executant of the said documents wherein her name i.e Anita Kumari W/o Sh. Raghunath Singh was depicted/written as the executant of the said documents in favour of Sh. Mahesh Prasad Rai who was not known to her so that her name is mentioned in the said documents being executant is falsely mentioned as she never executed any document in favour of said Mahesh Prasad Rai. Then a Court question was asked that whether she can read and write. In reply of which, she deposed that she can read Hindi and can write little bit and he can sign in Hindi. Whenever, there is requirement of signing any document, she used to sign only instead of putting thumb impression. She then correctly identified accused Usha and Vinod Singh present in the Court that day. She was then cross examined by Sh. A. K. Sood, Ld. Counsel for the accused Vinod and Usha. In reply of which, she admitted that she had purchased 60 sq. yards plot alongwith two rooms, one small and one big for Rs. 70,000/- and admitted that in the need of money, she sold the same plot alongwith built up two rooms to her friend Mrs. Usha for Rs. 1,10,000/-. She further deposed that she was not aware that the son of her friend Mrs. Usha was suffering from serious ailment due to that her friend disposed off 30 sq. yards plot alongwith one room immediately. She deposed that she was not aware to whom she had disposed off the half portion of the plot and admitted that she keow her friend Mrs. Usha and her friend Sh. Vinod for a long time.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
13 of 43 Witness denied that Mrs. Usha and Vinod were falsely implicated in the case and that she was deposing falsely. She was then cross examined by Sh. Jitender Kumar, Ld. Counsel for the accused Ashok and Dev Kant Jha. Ld. Counsel adopted the cross examination done by Ld. Counsel for the accused Usha and Vinod Singh.
7. PW-3 HC Satnam Singh deposed that on 27.04.2003, he was posted at PS Sultan Puri as Duty Officer from 04.00 pm to 12.00 midnight and on that day at about 09.50 pm, he received rukka from SI Yashvir and on the basis of that rukka, he recorded FIR No. 452/03, carbon copy of the same is Ex. PW- 3/B. He also made endorsement at pt. B on the rukka, same is Ex. PW-3/B. .
8. PW-4 Inspector Yashpal Singh deposed that in the year, 2004, month of February, the case was marked to him for further investigation. He sent the specimen thumb impression Mark A and questioned documents Mark B(which were already on record) to FSL, Malviya Nagar. He collected the FSL, Malviya Nagar report about thumb impression Ex. PW-4/A. On 17.10.2004, he alongwith the complainant Mahesh Prasad reached at Inder Puri and at his instance, apprehended accused Ashok Kumar Jha(correctly identified) arrested him vide arrest and personal search memo Ex. PW-4/B and Ex. PW-4/C, both bear his signatures at pt. A. Meanwhile, accused Dev Kant Jha got anticipatory bail and he formally arrested him vide arrest memo Ex. PW-4/D which bears his signatures at pt. A. Accused FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
14 of 43 Dev Kant Jha was not present in the Court that day but he deposed that he can identify him. He prepared the charge sheet and filed the same in the Honb'le Court. Witness was cross examined by Ld. Counsel for the accused Dev Kant and Ashok Kumar. He deposed that he did not remember the exact date of marking the case to him but it was marked to him in the month of March, 2004. There was one questioned document but he did not remember the exact number of specimen thumb impressions. He did not remember the exact date when documents were sent to FSL, Malviya Nagar. He personally went to FSL, Malviya Nagar to collect the FSL result but he did not remember the date of collecting the same. He attached the same in the file on the same day. He only recorded statement of complainant after the arrest of the accused Ashok Kumar Jha. He never recorded statement of any other public witness in this case. He denied that he arrested the accused Ashok Kumar in the PS itself after calling him from his house and that he falsely implicated the accused persons at the instance of complainant and never verified the allegation or that he was deposing falsely. He was then cross examined by Sh. A. K. Sood on 10.11.10 wherein he deposed that he had sent only the thumb impression of accused Usha for the expert opinion to FSL. He did not remember what were the exact queries put to the expert regarding thumb impression. Then the witness voluntarily deposed that the query was related to the comparison of the thumb impression of accused Usha and he denied that during investigation, documents i.e Power of FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
15 of 43 Attorney, will agreement to sell, receipt on which the thumb impression of Anita were obtained including documents of purchasing of the plot in question were not sent to FSL for its examination.
9. PW-5 Inspector Yashvir Singh deposed that on 27.04.2003, he was posted as Incharge, Police Post, Prem Nagar of PS Sultan Puri and on that day, he had received a photocopy of complaint addressed to DCP, North West District made by one Mahesh Prasad R/o B-466, Prem Nagar-II, Nangloi i.e Ex. PW-1/G alongwith photocopies of impugned documents i.e GPA, Will, Agreement to sell and receipt executed by one Smt. Anita Kumari in favour of complainant Sh. Mahesh Prasad by post i.e GPA Mark A, Will Mark B, Agreement to sell mark C, Receipt Mark D, Affidavit Mark E and Possession Letter Mark F. After going through its contents, the matter in question was discussed with his Senior Police Officials and after getting verbal approval from them, he made his endorsement on the photocopy of the said complaint i.e Ex. PW-5/A bearing his signatures at pt. A and he got the present case registered by way of handing over to the DO concerned. After receipt of copy of FIR Ex. PW-3/A, the investigation of the case was entrusted to him by DO concerned and during investigation, complainant Mahesh Prasad was called in his office and was inquired thoroughly and whatsoever he had stated about the incident in question, the same was reduced in writing i.e a separate statement recorded U/s 161 Cr. P.C. Smt. Anita Kumar W/o Sh.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
16 of 43 Raghunath Singh was also called and was interrogated about the execution of those documents and her statement was recorded as per her narration. The thumb impressions of the said Smt. Anita Kumari were obtained on some blank papers i.e documents Mark A S11 to Mark S13 bearing his signatures at pt. A. On the basis of conclusion, he made his sincere efforts to arrest the accused Smt. Usha and Vinod but they could not be arrested as they had moved an application for anticipatory bail in the Hon'ble Court of Sessions. The said complainant was asked to produced the original documents of the impugned property in question who had produced some original documents i.e GPA Ex. PW-1/A, Will Ex. PW-1/B, Agreement to Sell Ex. PW-1/C, Receipt Ex. PW-1/D, Affidavit Ex. PW-1/E, Possession Letter Ex. PW-1/F and carbon copy of agreement to sell i.e having as Q9 and same were kept into an envelope and were taken into police possession vide its seizure memo Ex. PW-5/B bearing his signatures at pt. A. On 05.10.2003, the accused Smt. Usha and her husband Vinod Singh were formally arrested in this case and were released on their bail bond and personal bond as anticipatory bail was granted to them by the Honb'le Court of Sessions vide their arrest memo Ex. PW-5/C and Ex. PW-5/D bearing his signatures at pt. A and both above accused were present in the Court that day (correctly identified. At the time of their arrest, one identify card for old age pension was produced by the accused Smt. Usha i.e on record is Mark B on which the thumb impressions of Smt. Usha were found. The specimen thumb impressions of Smt. Usha FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
17 of 43 were obtained on some blank papers vide its seizure memo Ex. PW-5/E, these were collectively Mark A while documents having no. S1 to S10 bearing his signatures at pt. X and these were kept into an envelope. The above taken/seized documents were sent to FPB(Finger Print Bureau), Malviya Nagar for its examination. In the meantime, he was transferred from PS Sultan Puri so that the case file was handed over to MHC(R). He was then cross examined by Sh. A. K Sood, Ld. Counsel for the accused Usha and Vinod. He deposed that the complainant Mahesh Prasad was called at PP Prem Nagar through a constable on the same day. Complainant Mahesh Prasad came to him alone within one hour. Complainant was inquired about the plot in question and complainant replied regarding the plot land in question measuring 60 sq. yards. The land in question was personally inspected/visited where the said plot land in question was found divided into 2 portions. The complainant was under the possession of its half portion measuring 30 sq. yards. At that time, the second portion of the plot land was found locked and noboby was found there. Land in question was visited by him at 3-4 times in day time. The documents which he seized were pertaining to the land measuring 30 sq. yards . In the complaint, the area of the plot was not mentioned. He had tried his best to record the statements from neighbourhood but nobody turned up. No notice was got served upon the witness to join the investigation. The witness Anita Kumari was contacted by him telephonically and her telephone number was given to him by one neighbour but he did not FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
18 of 43 remember the name and Anita Kumari was contacted by him telephonically. Anita Kumari was requested to come in his office within a week. He did not remember when he contacted Smt. Anita Kumari who had come to his office alongwith on male member whose name he did not remember. The specimen thumb impression (RTI) of Smt. Anita Kumari were obtained on some blank paper. The originals of the same are placed on record. After the formal arrest of the accused Lady Usha, here RTI and LTI were obtained on some blank papers. The specimen handwriting of Anita Kumari was not obtained. On asking, the said identity card for old age pensioner was produced by Smt. Usha. Due to paucity of time, he could not verify about the person who had purchased the original stamp papers. The document writers and the persons who had attested the impugned documents were not examined. The above seized documents were not sealed by him. The sealed documents were got deposited in the FPB, Malviya Nagar through a constable whose name he did not remember right now, However, these documents were sent to FPB on 07.11.03. The seized documents were not sent to FPB on the day it was seized. He denied that the above seized documents were not sent to FPB for its examination or that the investigation of this case was not done in proper manner. He further denied that the accused persons were falsely implicated in this case at the instance of complainant Mahesh Prasad as he was working in Delhi Homeguard Services and was also having good links with higher authorities of Delhi Police. He was then FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
19 of 43 cross examined by Sh. Jitender Kumar, Ld. Counsel for the accused Dev Kant Jha and Ashok. He deposed that no bayana receipt was taken into police possession from complainant Mahesh Prasad and no such document was found placed alongwith the received complaint. The documents which he seized during investigation were not found bearing the signatures of Dev Kant Jha and Ashok Kumar. He further denied that with the connivance of the complainant, the accused Dev Kant Jha and Ashok Kumar were falsely implicated in this case.
10.PW-6 HC Naseeb Singh deposed that on 17.10.04, he was posted at PP Prem Nagar of PS Sultan Puri as constable and on that day, he accompanied the IO of this case i.e SI Yashpal Singh regarding investigation of the present case. He has reiterated the version of PW4 ragarding the arrest and apprehension of the accused. Statement of witness was recorded by IO in this regard. On 10.11.2010, he was cross examined by Sh. Jitender Kumar, Ld. Counsel for the accused Dev Kant Jha and Ashok Kumar Jha and Sh. A. K. Sood, Ld. Counsel for the accused Usha and Vinod. He deposed that he did not know about the DD Entry of his rawangi from PP Prem Nagar to the spot. He did not remember the exact time when they reached at the residence of the complainant for about 10- 15 minutes. He did not remember when they reached at the residence of the accused Ashok Kumar Jha but it was day time. His address was D33, Inder Puri. He did not remember how much time was taken in the writing work of arrest memo and personal search memo of the accused but it was about half an FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
20 of 43 hour. There was no public person present at the time of the arrest at the residence of the accused A. K. Jha except Mahesh Prasad (complainant), IO SI Yashpal Singh and himself. He did not remember exactly where his statement was recorded by the IO and denied that accused Ashok Kumar Jha was arrested in the PS or that all the writing work i.e arrest memo and personal search memo was done in the PS. He did not remember whether Raman Kumar Jha participated in the proceedings of arrest and personal search of the accused A. K. Jha and denied that he was deposing falsely.
11.PW-7 SI Dinesh Dahiya deposed that on 30.07.2005, he was posted at PS Sultan Puri as SI. The investigation in the concerned file was marked to him. On that day, during the course of investigation, he obtained the specimen handwriting of the accused Vinod Singh, present in the Court that day (correctly identified) collectively Ex. PW-7/A to Ex. PW-7/E, all bear his signatures at pt. A. Thereafter, he got transferred and he handed over the file to MHC(R). He was then cross examined by Sh. Jitender Kumar, Ld. Counsel for the accused Dev Kant Jha and accused Ashok Kumar Jha. He deposed that he obtained the specimen handwriting of the accused Vinod Singh in PP Prem Nagar, PS Sultan Puri. He did not remember the exact time and when specimen handwriting was obtained. He deposed that he do not remember who were present there in the PP when specimen handwriting was obtained. He did not know whether the specimen handwriting was obtained and who were present there in the PP when specimen handwriting was FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
21 of 43 obtained. He did not know whether the specimen handwriting of the accused Vinod Singh was obtained by SI Yashpal or not and the exact date when he handed over the file to MHC(R). He denied that accused has been falsely implicated in the present matter with collusion with the complainant or that he was deposing falsely. He was further cross examined by Sh. A. K. Sood, Ld. Counsel for the accused Usha and Vinod Singh. He deposed that during the course of investigation, he obtained the specimen handwriting of the accused Vinod Singh as there was necessity of it. After obtaining the specimen handwriting of the accused Vinod Singh, he attested the signatures of the accused but neither he put any seal of PS nor of the witness. He further deposed that he did not send the specimen handwriting for expert opinion(FSL). He did not remember exactly when the specimen handwriting were sent to FSL. He did not remember when he got transferred from the PS and denied that he did not attach the specimen handwriting of the accused Vinod Singh in the file. He deposed that he handed over the concerned file with documents to the record keeper of the PS and denied that specimen handwriting of accused Vinod Singh was obtained under force, coercion, pressure and threat of the higher offcials of the police department since complainant was working in the Home Guard Services, in connivance with the police. He denied that he was deposing falsely.
12.PW-8 SI Surya Prakash after refreshing his memory deposed that on 20.03.2009, the file was handed over to him for further investigation of the case. On 24.04.2009, he deposited the FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
22 of 43 Power of Attorney, Will, Agreement to Sell, Receipt, Affidavit, Possession Letter alongwith specimen signatures for expert opinion in FSL and same is already Ex. PW-1/A, Ex. PW-1/B, Ex. PW-1/C, Ex, PW-1/D, Ex. PW-1/E, Ex. PW-1/F and Ex. PW-7/A to Ex. PW-7/E respectively. Thereafter, in the first week of June, 2009, he obtained the FSL result, same is Ex. PW-8/A and accordingly prepared supplementary challan and same was filed in the Hon'ble Court. He was then cross examined by Sh. A. K. Sood, Ld. Counsel for the accused Smt. Usha and Vinod Singh and Sh. Jitender Kumar, Ld. Counsel for the accused Dev Kant Jha and accused Ashok Kumar Jha. He deposed that the present file was handed over to him by MHC(R) on the verbal directions of ACP on 20.03.09. No specific time for conduction of investigation was mentioned by the ACP. No direction to do the investigation in a particular manner was given by ACP. Witness voluntarily stated that the file was being handed over to the IO and IO is to do the investigation as required in the file. He had sent the above mentioned documents Ex. PW-1/A, Ex. PW-1/B, Ex. PW-1/C, Ex. PW-1/D, Ex. PW-1/E, Ex. PW-1/F and Ex. PW-7/A to Ex. PW-7/E for examination in FSL and he was aware that the exhibits were once sent to the Finger Print Bureau for examination of thumb impression of Anita Kumari. He handed over the above mentioned exhibits to Dealing Clerk. He did not remember the name of the Dealing Clerk of FSL He did not remember the name of the Dealing Clerk of FSL to whom he handed over the same and deposed that he handed over the documents in open sheet manner to the Dealing Clerk. He did FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
23 of 43 not remember the exact area in dispute and that he did not know whether there is any time bound provision for providing FSL result. He deposed that he received the FSL result in sealed cover bearing the seal of FSL. He attached the above mentioned cover in the file. During investigation, he never contacted any of the accused persons. He never visited the impugned place of dispute. He did not record any statement of neighbour of that area. He denied that he did not conduct further investigation as directed by the Hon'ble Court. He denied that due to service position of the complainant, the investigation was influenced by him and the investigation was not done in fair manner or that he was deposing falsely.
13.After conclusion of prosecution evidence, statements of accused persons were recorded wherein accused claimed to be innocent and denied the allegations against them. They stated that the accused Usha had signed the documents in her own capacity and thus her photograph was pasted on the same. They also stated that the accused Usha was illiterate and the documents were typed at the instance of the complainant Mahesh Prasad and that they had not read them. They also stated that the land that was sold to the complainant measured 30 sq. yards as the remaining 30 sq. yards was sold to some one else. Accused had also lead evidence in their defence. DW- 1 is accused Vinod Singh, DW-2 is Sh. Sunil Kumar, UDC of Sub Registrar-I, Kashmiri Gate, Delhi, DW-3 is Kailash Meena and DW-4 is Megh Shyam.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
24 of 43
14. DW-1 Vinod Singh deposed that a built up house consisting of one room set with the safety tank and water hand pump measuring 30 sq. yards was sold to one Mahesh Prasad out of land measuring 60 sq. yards. Prior to this, remaining land measuring 30 sq. yards was already sold to Kailash Meena and Srikishan Meena. The complete chain of documents were handed over to Sh. Mahesh Prasad. After handing over the documents, Mahesh Prasad asked him that he was going to office of Sub-registrar for preparation of documents and he came over there. When he reached there, he found documents already prepared except the photographs of Usha and Mahesh Prasad. Election I Card, Ration Card of Usha were handed over to Mahesh Prasad. He had also handed over his official identity card in the office of Sub Registrar. He was asked about his name and it was also asked that whether the plot in question was belonging to him or not or that he had received the consideration amount of land in question. He had signed the documents as witness in the Court. The registered documents were directly handed over to Mahesh Prasad. He deposed that he could not tell the name of the person which was found written under thumb impression. The key of the land in question was handed over to Mahesh Prasad at the office of Sub-Registrar. After about 1 ½ years, he had come to know of the tampering in the documents. He was then cross examined by Ld. APP for the State. He deposed that he was posted/working as gardener in the department of Horticulture, MCD, Delhi and he had been working in the said department FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
25 of 43 since 05.05.1968. On the day of registration of the documents at the office of Sub-Registrar, Kashmiri Gate, he was on casual leave as on that day, he was not feeling well and an application had already been submitted to his department concerned prior to availing his said C. L on account of illness. He had taken treatment from nearby private Bengali Clinic. He did not remember the name of the doctor of the said clinic. However, he was advised by the said doctor for taking bed rest. He denied that due to not feeling well, he had not gone to the office of Sub-Registrar, Kashmiri Gate. The witness voluntarily deposed that he and his wife had gone to registrar office in auto. The date when they had come at the said office was 08.04.02. The land measuring 60 sq. yards was partly build up consisting of two temporary rooms (kache) and the same was purchased from one Smt. Anita in the year, 2002 and the documents were notarized attested and the said land measuring 60 sq. yards was purchased in the name of his wife Smt. Usha, Out of 60 sq. yards, half portion of the said land was built up and remaining 30 sq. yards was sold to one Srikishan Meena and Kailash Meena, both were residents of the same locality. The plot of land in question consisting of one room set etc. was sold to Mahesh Prasad as he was previously known to him through one Dev Kant Jha who was his neighbour. He further denied that the documents of land in question were prepared in his presence at the office of Sub Registrar, Kashmiri Gate, Delhi. He admitted that the photographs pasted on the impugned documents were of his wife Smt. Usha and not of FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
26 of 43 Anita. He denied that the impugned documents were got registered in the office of Sub-Registrar, Kashmiri Gate, Delhi in the name of Anita while impersonating Usha as Anita. He then voluntarily deposed that the documents were got registered after having understood that the documents contains the name of the seller as Usha and denied that he was deposing falsely to save himself and also to save his wife Smt. Usha.
15. DW-2 Sunil Kumar deposed that he knew the procedure of execution/registration of the documents in the Office of Sub- Registrar, Kashmiri Gate and in this regard, the personal appearance of seller and purchaser is required before the Sub- Registrar. That day, he had brought the summoned record of the impugned registered documents of land in question. On the appearance of purchaser and seller, their identity proof in form of election I-Card/Ration Card/DL alongwith photographs of the person concerned were sought to ascertain their identity by the authority concerned. In the original maintained record which he had brought that day, the copies of such verified documents of seller and purchaser were not found placed on record. There is no procedure to co-relate and verify the previous owners of the plot of land in question when the same was to be transferred again. That day, he had not brought such old record. He deposed that he did not have any knowledge whether any complaint was filed/moved by any person regarding wrong transaction about the plot in question FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
27 of 43 done by the purchaser. He did not have any personal knowledge about the execution of impugned documents. He was then cross examined by Ld. APP for the State. He deposed that he had been working in the said office since September, 2010 and prior to the this, he was never posted in the said office. He admitted that he did not have any personal knowledge regarding the execution of the impugned documents and he was deposing before the Court by the record which had been brought that day. He admitted that as per record of registered will the executant is Anita Kumari W/o Sh. Raghuman Singh and the same was executed in favour of Sh. Mahesh Prasad, S/o Late Sh. Ram Nihura Roy and deposed that the documents like as copy of her election I Card/Ration Card/DL to establish her identity were not on record as to who stood herself being Anita Kumari.
16.DW-3 Kailash Meena deposed that he had purchased 30 sq. yards house from Smt. Usha in the year, 2001 out of land measuring 60 sq. yards. He deposed that he had not faced any difficulty while purchasing the 30 sq. yards built up plot and had not faced any difficulty in negotiation and in residing over there in his portion. He further deposed that they had also made up the documents for 30 sq. yards. He deposed that he is still residing over there. In 60 sq. yards, when Mr. Mahesh Prasad purchased the half portion, he put the boundary wall in between the two portions of 30 sq. yards. Witness was then cross examined by Ld. APP for the State. He deposed that he was a private building construction contractor by his profession.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
28 of 43 He could not tell the exact date and month of the year, 2001 when he purchased the said plot of land measuring 30 sq. yards from Smt. Usha W/o Sh. Vinod out of land measuring 60 sq. yards by way of execution of simple GPA executed in the favour of his Aunty(mami) Smt. Chandi W/o Sh. Sheskaran. He deposed that the number of the said plot measuring 60 sq. yards was B-466, Prem Nagar II, Delhi and that the said land was belonging to the revenue estate of village Kirari, Suleman Nagar, Prem Nagar II. He did not remember the khasra no. of the said land. At the time of purchasing the said part land measuring 30 sq. yards out of 60 sq. yards, no one was residing in the remaining portion measuring 30 sq. yards. He denied that the said land measuring 30 sq. yards was not purchased by him as the requisite documents were not executed in his favour. The money was provided by him vide which the said land measuring 30 sq. yards was purchased by his Mami and the said money was given to Vinod by him in this regard and that he did not have any documentary proof in this regard as the said document was given to the IO of this case. He further deposed that he knew the complainant of this case, Mahesh Prasad as he was residing at his neighbourhood. He did not have any knowledge about the purchasing of land measuring 30 sq. yards by the complainant Mahesh Prasad from one Smt. Anita and at the time of taking physical possession of land measuring 30 sq. yards by the complainant Mahesh Prasad, he alongwith his joint family members were residing in the remaining 30 sq. yards. He denied that he was deposing falsely FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
29 of 43 in this regard.
17. DW-4 Megh Shyam deposed that he know Mahesh Prasad since last 5-6 years. Again said, 9-10 years. He deposed that Mahesh Prasad called him at his residence but he did not remember the exact date and month but year was 2002 and that Mahesh Prasad told him to construct one wall at B-466 at Prem Nagar, Delhi. They also measured the plot which was found containing 60 yards and he constructed the wall at 30 yards for partition of 60 yards and that he paid him wages i.e Rs. 1,000/- to construct the wall and he also repaired the other walls. No quarrel took place at the time of constructing the wall with other party. Witness was then cross examined by Ld. APP for the State. He deposed that he was originally resident of Rajasthan and working as mason. He was residing at Delhi for the last 14-15 years and had no knowledge of any litigation between the complainant and the accused and denied that he had not visited the plot of Mahesh Prasad due to which he did not remember the date and month of construction of wall and denied that he deposed falsely at the instance of Mahesh Prasad.
18.During the course of his arguments, Ld. APP for the State submitted that the witnesses who were examined by the prosecution have given true account of the offence and have corroborated each other. He has also submitted that the defence has examined only four witnesses who were not credit- worthy, thus, further fortifying the case of the prosecution.
FIR No. 452/03PS Sultanpuri State Vs. Vinod Singh & Ors.
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19.Accused were given opportunity to make submissions in their defence. Final arguments were heard and the matter was fixed for orders.
20.The contentions of the prosecution in brief are that the complainant was cheated as he was sold 30 sq yrds of land in place of 60 which was promised to him. Further, accused Usha impersonated as Anita while executing documents in question and the complainant was beaten up when he went to the house of accused Vinod. During the course of arguments, the only defence taken is that the accused Usha was illiterate and put her thumb impression on the documents without understanding them. Further, the documents were prepared at the instance of the complainant who got them prepared in the name of Anita in order to grab the entire 60 sq. yards of land while the accused persons were oblivious to his intentions. It has also been argued that accused Usha was the owner of the land and thus, did not need to commit forgery in the first place.
21. In order to ascertain the veracity of the allegations of the complainant, we need to see first what are the offences with which accused are charged. Section 120B provides the punishment of criminal conspiracy. Section 323 provides punishment for voluntarily causing hurt. Section 419 provides for punishment for cheating by personation. Section 420 provides for cheating and dishonestly inducing delivery of property. Section 468 provides punishment for forgery for purpose of cheating. Section 471 provides punishment for using FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
31 of 43 as genuine a forged document. Forgery as defined under Section 463 IPC requires making of a 'false document'. Making of a false document is in turn defined in Section 464 IPC. A necessary ingredient of the same is the existence of 'dishonest or fraudulent' intention. The same is also a necessary ingredient of the offence of cheating as defined in Section 415 IPC. It is settled law that intention has to be gathered from the material and evidence present on record. In this context, we now proceed to examine the evidence available on record.
THE VERSION OF THE COMPLAINANT:
22. It is pertinent to note here that the complainant is himself the star witness of the prosecution and in order to test the prosecution story, the evidence of the complainant is put to scrutiny in detail. A bare perusal of the complainant's testimony shows various discrepancies and contradictions and leaves a lot of things wanting. Firstly, there is nothing on record to show how the complainant got to know that the lady executing the documents was not Anita and was Usha W/o Vinod. He has also deposed that at the relevant time a tenant was staying in the premises in question. However, he has not come forth with the identity of the said tenant. Moreover, he has deposed that the documents were put before him.
However, in his cross examination he has stated that he did not see the documents. This is an inherent contradiction in the deposition of the complainant. Despite having deposed that he had taken 4 witnesses from his side at the time of registration FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
32 of 43 of the documents, he has deposed that he did not go through the contents of the documents and this fact was also not brought before the Sub-Registrar concerned. As to why the same was not disclosed is for reasons best known to the complainant. It is also peculiar that none of the 4 witnesses who had accompanied the complainant noticed the contents of the documents or the fact that it was Usha who was signing the documents. None of these 4 witnesses have been interrogated and no investigation had been conducted regarding them. There is nothing in the deposition of the complainant as to show that it was the accused persons who wrote the name Anita on the documents in question. Rather, it is not known at all as to who put the name Anita on the documents. Further, when Kailash Chand Meena allegedly tress-passed into the property which the complainant is claiming, he did not make any complaint to the police or any other authority regarding the same. Moreover, in the examination in chief of the complainant himself, he has admitted that the property in question consisted of two built up rooms. However, in his examination in chief only, he has deposed that when possession of the land was handed over to him, the locks of only one room was opened and he was given possession of only one room. There is nothing on record to show that the possession of the other room was also given to the complainant. This renders the version of the defence believable that the complainant was sold only half of the property and the other half was sold to Kailash Chand Meena. Moreover, as per the version of the complainant FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
33 of 43 himself, the said Kailash Chand Meena came to the house of the complainant only in May, 2002 whereas the transaction had transpired on 08.04.2002. It is absurd that the complainant would not even read the documents and verify the contents thereof even after one month of the transaction. All these discrepancies cast a big shadow of doubt on the deposition of the complainant upon which the entire case of the prosecution rests. These discrepancies and contradictions also show that everything happened in front of the complainant with open eyes and he had every chance to detect any fraud that was being played upon him. It has been held in the case of People Patriotic Front, New Delhi vs K.K. Birla and Others: 23 (1983) DLT 499 that:
"Section 420 :
19. This has to be examined because Section 409 has been ruled out. This section ropes in a person who practices deception, fraud or dishonesty and thereby, inter alia induces any person to deliver any property or induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived. No doubt, dishonest concealment of fact is deception within the meaning of this section, but who has been deceived here and by whom ? Indeed, the case of the IOC is that whatever they did was done upon the direction of the Ministry. Everything was done with open FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
34 of 43 eyes and no cheating can be said to have taken place."
In the present case also, everything has been done with open eyes and the complainant cannot be said to have been cheated.
23. As far as the offence of forgery for the purpose of cheating is concerned, it is settled law that Section 468 IPC requires that forgery be committed for the purpose of cheating. It has been held in Surinder Kumar Bali vs State: Decided by the Hon'ble High Court of Delhi on 27th, November 2009 that:
"Ingredients of Section 468 of the IPC necessarily encompass within its ambit a forgery for the purpose of cheating; if there is no cheating, offence under Section 468 of the IPC is also not made out."
Thus, when the offence u/s 420 IPC is not made out against the accused in the present case, as a corollary, the offence u/s 468 IPC cannot be said to have been committed.
DISCREPANCIES IN INVESTIGATION:
24.Apart from the discrepancies in the deposition of the complainant, there are also various lapses found on part of the investigating agency. A number of persons who could have shed light on the facts and circumstances of the case have not been interrogated. Firstly, the officials at the Sub-Registrar office have not been made a witness, though they could have FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
35 of 43 divulged whether the complainant impersonated Anita or not at the Sub-registrar office. One B.S. Verma, Advocate has also not been joined in the investigation. He has witnessed the documents of transfer of the property in question to the complainant. He could have cleared the air regarding alleged impersonation committed by accused Usha. The stamp paper vendor has not been examined during investigation. He could have divulged who had purchased the stamp papers. Most importantly, the deed writers and the notary have not been made a witness and no investigation has been conducted from them. Even the site plan has not been prepared so as to even give a hint as to what constituted the property in question. This not only shows the shoddy quality of investigation conducted in this case but also leaves the prosecution story incomplete with many missing links. Even as far as allegations of causing hurt to the complainant are concerned, no MLC has been put on record and the medical examination of the complainant is lacking. All these discrepancies in investigation only add to the doubts in the theory of the prosecution INTENTION TO DEFRAUD:
25. It is only the aforesaid persons i.e. the deed writers, the witnesses and the officials of the Sub-Registrar's office who could have given an answer to the question as to at whose instance were the documents prepared and who wrote the name Anita on these documents. Determination of this aspect was crucial to cull out an intention on part of the accused to FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
36 of 43 impersonate/ cheat the complainant. In the absence of the same, the intention to defraud can not be inferred from the scant material available on record. Moreover, no investigation what so ever has been conducted on the point of who wrote the name Anita on the documents despite specific directions being given by the court after filing of the first charge sheet. One of the key ingredients of the offences u/s 419, 420, 468 and 471 IPC (by necessary implication) is that an intention to defraud should exist on part of the accused persons. As even the version of the complainant has been rendered unreliable due to numerous discrepancies pointed out above and also due to non-believability, there is nothing on record to prove that such intention existed on behalf of the accused persons.
BELIEVABILITY:
26. The case of the prosecution also suffers on the ground of improbability and non-believability of the allegations leveled by the complainant. It is admitted by PW2 herself that she had sold the entire property to the accused Usha in 2001 for a consideration of Rs. 1,10,000/-. In view of the same, it is unbelievable/ improbable that the accused would have impersonated Anita and sold the property. There was no need to do so in the first place. When Usha was the owner of the complete property, there was no need for her to sign as Anita as she was having complete rights to dispose off the property.
It has been held in the case of Radha Raman Vs. State 2010 [3] JCC 1764 in para 20 by the Hon'ble High Court of Delhi that FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
37 of 43 "the over emphasis by the learned Trial Judge as to why would the witnesses be telling a lie has plainly resulted in a miscarriage of justice. The learned Trial Judge forgot that one safe test to test whether a person is a liar or not is to weigh the contemporaneous conduct of the person with reference to the facts alleged by the person as against his personal knowledge. A mismatch of conduct and the knowledge of a person in a given situation is a good index of the person not telling the truth. As regards the motive for a witness to be telling a lie, just like it becomes difficult for the prosecution to prove a motive for the crime, it is equally difficult for the accused to prove motive for witnesses to falsely depose against him. That apart, where there is overwhelming evidence to discard as untruthful the percipient evidence, it would be a most injudicious approach to over look the same and accept the percipient evidence as truth only on account of motive not being proved for the witness to be deposing falsely".
In the case at hand there is a gross mismatch between the knowledge of the complainant regarding his allegedly being cheated and his conduct in not disclosing the same to the police or not even reading the documents for such a long time despite being accompanied by four of his witnesses as per his own version. The same renders the deposition of the FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
38 of 43 complainant highly unbelievable. Thus, this Court holds that the testimony of the complainant is not credit worthy enough to convict the accused persons. The discrepancies pointed out above in the deposition of the complainant also render the version of the complainant unbelievable.
DELAY IN FIR:
27. Moreover, there is exorbitant delay in registration of the FIR in the present case. The documents were executed on 08.04.2002. Where as the FIR has been registered on 27.4.03 only on the basis of the photocopy of a complaint addressed to the DCP concerned dt. 2.3.03. It has not been explained by the prosecution as to where is the original complaint. The complainant has also not been able to explain the delay of about one year in filing of FIR in his entire deposition. The same has also not been explained by the IO. It has been held in the case of Thulia Kali Vs. State of Tamilnadu AIR 1973 SC 501 that the first information report in a criminal case is an extremely vital and valuable peace of evidence. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the name of the eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
39 of 43 only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the cited case, the Hon'ble Supreme Court was of the opinion that when the occurrence was not reported for more than 20 hours even the PS was only two miles away, it was unsafe to base the conviction upon such evidence. In the case at hand, the delay runs into several months. It was for the complainant and prosecution to have explained this delay satisfactorily. No useful purpose would be served by multiplying authorities on this point. The same has not been explained in the present case at all as there is no reason whatsoever to which the delay has been attributed. The benefit of the same obviously as to accrue to the accused persons.
THE VERSION OF THE ACCUSED PERSONS:
28. In the present case, the accused persons appear to have come to the court with clean hands. They have even examined 4 defence witnesses. Out of the same, DW1 is the accused Vinod himself who has been brave to step into witness box and also face the cross examination on behalf of the State. The deposition of DW1 is in consonance of the defence taken by the accused persons in their statement recorded u/s 313 Cr. P.C. As a matter of fact, it has come during the deposition of DW1 that he was a mali/ gardener. Interestingly, this revelation has come FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
40 of 43 during the course of the cross examination of the defence witness. He has categorically deposed that all the documents had already been prepared when he reached the Sub-Regisrar's office. Strangely, the Ld. APP has put a suggestion to the accused that he had not gone to the office of the Sub-Registrar. This has been rightly denied by the accused witness. This court is unable to comprehend what the prosecution was trying to prove by saying that the accused had not gone to the Sub- Registar's office as it is antagonistic to the very story put forth by the prosecution to the effect that the accused Vinod Singh had, in conspiracy with co- accused, witnessed the documents in question in order to defraud the complainant. Not a single suggestion has been put to the defence witness to show that he had read the documents before signing them. Thus, the prosecution has been unable to shake the credit of the defence witness. This renders the version of the accused believable specially in view of the fact that he was a gardener and not very highly educated. This is in contrast to the complainant who claims to have passed class 10th. Further, DW4 is an independent defence witness who has stated that he constructed a wall at the property in question for its partition at the very instance of the complainant. He has also categorically deposed that this was done in the year 2002 and no quarrel had taken place at the time of constructing the wall with the other party. Strangely again, the prosecution has put a suggestion to the witness that he was deposing falsely at the instance of complainant Mahesh Prasad. Whereas, he was FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
41 of 43 produced as a witness by the defence. Thus, the prosecution has not been able to shake the credit of the defence witness and rather fortifies the version of the defence by making suggestion in their favor. It is settled law that there is no rule to consider a prosecution witness more reliable than a defence witness. In this regard it has been held in the case of Chander Bhan Vs. State CBI 1998 [2] JCC [Delhi] 69 in para 17 that "it is well settled principle of law that an accused is under no obligation to prove his defence. It is sufficient if he comes put with a probable and plausible version. I feel that the appellant has put forward a probable and plausible version in the present case"
There is no reason why the version of the defence should not be believed. Rather, the accused persons have successfully explained whatever scant incriminatory material existed against them and lead positive evidence in favor of their version as well. The complainant has taken the plea that he did not read the documents despite the same being placed before him and even before signing them. There is no reason why the same plea taken by the defence would be untenable especially in view of absence of prosecution evidence to prove the contrary.
OFFENCE OF VOLUNTARILY CAUSING HURT:
29. As far as the offence u/s 323 IPC is concerned, the only material available on record is a figment of the statement of the FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
42 of 43 complainant to the effect that on 12.01.2002 in the evening, he was assaulted by male accused persons alongwith their accomplices. One of the key ingredients of this offence is that hurt must have been caused to the complainant. Without any MLC on record, the same cannot be proved beyond reasonable doubt on the mere bald deposition of the complainant which is very general in nature in this respect.
OFFENCE OF CONSPIRACY:
30.As far as the offence of conspiracy is concerned, it is settled law that when the substantial offences of cheating, forgery, use of forged documents and voluntarily causing hurt are not made out and the agreement/ intention/ preparation to commit the same has been found to be lacking on part of the accused persons, the offence of conspiracy to commit these substantial offences can not be said to have been committed. Thus, the accused persons can not be indicted for the offences with which they have been charged.
31. It is settled law that the case of the prosecution has to be established beyond reasonable doubt. Thus, if there are any doubts in the theory of guilt of the accused, then the benefit obviously has to accrue to the accused. In totality, the prosecution has not been able to establish a strong case against the accused persons. In view of what has been discussed above, this Court holds that the guilt of the accused persons has not been established beyond reasonable doubt.
Thus, they are hereby acquitted of the accusations under FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.
43 of 43 Sections 120 B, 419, 468, 471, 420 & 323 IPC.
(ANNOUNCED IN THE OPEN COURT ON 16.05.2013. This Judgment contains 34 pages and each paper is signed by me.
(SUMEDH KUMAR SETHI) METROPOLITAN MAGISTRATE OUTER DISTRICT ROHINI COURTS, DELHI FIR No. 452/03 PS Sultanpuri State Vs. Vinod Singh & Ors.