Delhi District Court
State vs Om Prakash ("Convicted") Page 1 Of 14 on 9 April, 2012
FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 347/2000 PS: Subzi Mandi U/s 193/468/471/420 IPC Unique ID No.: 02401R0114262001 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 26/2
(b) Name of complainant : Shri Narender Kumar, Ld.Metropolitan Magistrate, Tis Hazari Courts, Dehi.
(c) Date of commission of offence : 09.09.2000
(d) Name of the accused : Om Parkash,
S/o Shri Panna Lal,
R/o 3748, Kucha Mohatar Khan,
Mori Gate, Delhi.
(e) Offence complained of : U/s 193/468/471/420 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 29.03.2012
(h) Final Order : Convicted for offences
punishable U/s 193/199/200/205/
471 IPC
(i) Date of such order : 09.04.2012
______________________________________________________________ State V/s Om Prakash ("Convicted") Page 1 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case as borne out from the record are that on the date of incident Shri Narinder Kumar, the then Ld.MM had been looking after the judicial work in respect of cases of Police Station Kashmere Gate. Case FIR No.294/2000, U/s 379/411 IPC, PS Kashmere Gate, titled as, "State V/s Sandhya @ Asha" was pending trial in his court on 06.09.2000, on which date, pursuant to bail order passed in respect of that accused, Bail Bond was furnished by surety Shri Surender Singh S/o Shri Bhoop Singh, interalia swearing an affidavit in support of Surety Bond and furnishing original Ration Card bearing No.357646 with his photograph, Registration Certificate of vehicle bearing No.DLIV/0911 and Permit No.CE15628/97 in respect thereof. The Ld.MM issued directions to SHO, PS Kashmere Gate for verification of the aforesaid documents. The verification report dated 08.09.2000 was received by him wherein it was communicated in his court by HC Devender Singh that the Ration Card and Registration Certificate annexed with the Bail Bond were forged documents. Thereafter, the said surety did not appear in the court of Ld.MM. As such, the learned MM on 09.09.2000 made a complaint U/s 195 Cr.P.C in this court. On the basis of the aforesaid complaint of the Ld.MM, this court issued directions to SHO, PS Subzi Mandi to register FIR in the matter and as such, FIR in this case came to be registered and matter was investigated. During the course of investigation and State V/s Om Prakash ("Convicted") Page 2 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 on the basis of identification of accused through his photograph lying affixed on the Ration Card in question, he was arrested on 04.01.2001, his specimen handwriting was taken and the same alongwith the handwriting appearing on the Bail Bond and Ration Card were sent for CFSL examination, report thereupon was obtained and after completion of investigation, accused stood chargesheeted for offences punishable U/s 193/468/471/420 IPC.
2. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 07.06.2001, charge U/s 193 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of accused, prosecution examined nine witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he admitted having appeared before the Learned MM on 09.09.2000 and impersonated as Surender Singh, filed Bail Bond and documents; but denied having prepared the said documents for the purpose of standing fake surety in the matter. Vide order dated 19.10.2010, this court found the report of FSL to be prima facie admissible in evidence U/s 293 Cr.P.C and further supplementary statement of accused U/s 313 Cr.P.C in this regard was recorded. Despite opportunity, the accused did not lead any evidence in defence.
State V/s Om Prakash ("Convicted") Page 3 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012
4. I have heard arguments advanced at bar by learned APP on behalf of State and Shri P.K Garg, Advocate on behalf of accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
5. PW1, ASI Nanu Ram in his evidence stated that on 27.09.2000 he was posted as Duty Officer in PS Subzi Mandi, on which day he got recorded the case FIR (Ex.PW1/A) in the matter.
6. PW2, Shri Gian Chand in his evidence stated that on 14.12.2000 while he was posted as UDC in Food & Supply Department, Govt. of NCT of Delhi, Ration Card bearing No.357646 (filed by the accused alongwith the Bail Bond) was produced before him for verification, whereupon he gave his report that the said Ration Card was not issued by the Food & Supply Department, Govt. of NCT of Delhi.
7. PW3, Ct.Naresh Kumar in his evidence stated that on 17.10.2000, the original documents filed by accused alongwith the Bail Bond were taken possession off from the court of Ld.MM.
8. PW4, HC Devender Singh in his evidence stated that on the directions of Ld.MM, he had filed report after verifying the documents filed State V/s Om Prakash ("Convicted") Page 4 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 by the accused alongwith the Bail Bond in case FIR No.294/2000, PS Kashmere Gate, interalia stating therein that the said documents were forged and fabricated.
9. PW5, Ct.Rajinder Singh deposed in this court that on 04.01.2001 he alongwith HC Satpal had arrested the accused from Madrasi Colony, Mori Gate pursuant to a secret information received in the matter.
10. PW6, Shri Narender Kumar, Ld.ASJ, Delhi (the then Ld.MM) in his evidence stated that on 06.09.2000, one person impersonated as Surender Singh S/o Shri Bhoop Singh and stood surety for accused Sandhya @ Asha W/o Shri Arjun in case FIR No.294/2000, U/s 379/411 IPC, PS Kashmere Gate. Alongwith the Bail Bond, an Affidavit, Ration Card, RC and Permit were filed. He ordered for verification of the said documents and on receipt of report thereupon conducted an enquiry U/s 340 Cr.P.C and filed a complaint U/s 195 Cr.P.C in this court. He categorically stated that the Ration Card filed alongwith the Bail Bond was carrying the photograph of the person who had appeared in his court as "surety".
11. PW7, HC Satpal Singh, the IO of the case has proved the investigation conducted by him in the matter, i.e taking into possession the original documents filed by the accused alongwith the Bail Bond, obtaining reports from Food & Supply Department as also Transport Authority, arresting the accused, obtaining his specimen handwriting and obtaining the report of FSL and thereafter filing chargesheet in the matter. State V/s Om Prakash ("Convicted") Page 5 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012
12. PW8, Shri N.S Tokas, UDC from Rajpur Transport Authority in his evidence stated that vehicle bearing Registration No.DL1B/0911 was not registered in the name of Shri Surender Singh in the Transport Authority, RC filed alongwith the Bail Bond in respect of aforesaid vehicle was not issued by the Rajpur Transport Authority. Even the Permit filed alongwith the Bail Bond was found to be forged.
13. PW9, Shri Ajay Saklani, UDC from Record Room (Criminal) at District Court Complex, Tis Hazari, proved the original record in respect of case FIR No.294/2000, U/s 379/411 IPC, PS Kashmere Gate.
14. This is all as far as prosecution evidence in the matter is concerned.
15. Shri P.K Garg, Ld. Defence Counsel has very vehemently argued that the case against the accused is false as he never appeared in the court of PW6 as a fake surety; he further did not file any Ration Card (Ex.PW6/C), Bail Bond (Ex.PW6/B), RC (Ex.PW6/D) and Permit (Ex.PW6/E) in the court. He has further argued that the photograph of the accused appearing on Ex.PW6/C cannot be the basis for the presumption that he had appeared as fake surety in the court of PW6.
State V/s Om Prakash ("Convicted") Page 6 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012
16. Per contra, learned APP has very vehemently argued that the testimonies of prosecution witnesses have remained unrebutted and as such admitted. It is further argued that the arguments of learned defence counsel are contrary to the material on record, particularly the stand taken by the accused in his statement U/s 313 Cr.P.C, wherein he categorically admitted having appeared as fake surety in the assumed name of Shri Surender Singh in the court of PW6. It is next contended that report Ex.PW4/D of HC Devender Kumar, submitted in the court of PW6 before filing of complaint U/s 195 Cr.P.C clearly indicates that the Ration Card (Ex.PW6/C) and Registration Certificate (Ex.PW6/D) were false and fabricated documents. The reports received from the concerned departments in respect of aforesaid documents, i.e Ex.PW4/D1 and Ex.PW8/A and Ex.PW8/B respectively clearly demonstrate that the said documents are forged. It is next contended that the accused has not denied his photograph on Ex.PW6/C and as such, in view of the unrebutted testimony of PW6, his statement U/s 313 Cr.P.C and the documents Ex.PW4/B1, Ex.PW8/A and Ex.PW8/B, there is conclusive evidence that it was accused who had stood "fake surety" in the court of PW6 and had filed false affidavit and had further filed forged documents. In the end, it is contended that through the FSL report (Ex.C1), it has been corroborated that the handwriting appearing on Bail Bond (Q2), the affidavit (Q3 and Q4) and Ration Card (Q1) duly matched with the specimen handwriting of accused (S1 to S3) and as such, it stands conclusively proved that accused had not only impersonated as Surender Singh in the court of State V/s Om Prakash ("Convicted") Page 7 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 PW6, but had also sworn false affidavit and used false documents as genuine and as such, he is liable to be convicted for offence punishable U/s 193/199/200/205/471 IPC.
17. I have considered rival arguments. In the light of testimonies of prosecution witnesses and the documents proved on record, I entirely agree with the submissions of Ld.APP that PW6, whose testimony remained unrebutted, duly proves on record that the accused had appeared as "fake surety" in the assumed name of Surender Singh S/o Shri Bhoop Singh in his court in case FIR No.294/2000, U/s 379/411 IPC, PS Kashmere Gate, titled as, "State V/s Sandhya @ Asha" on 06.09.2000 and had filed Bail Bond (Ex.PW6/B) with forged documents Ex.PW6/C, Ex.PW6/D and Ex.PW6/E. His testimony that Ex.PW6/C bore the photograph of the person who had appeared as surety in his court on the aforesaid date in the aforesaid matter also remained unrebutted. The accused has not denied his photograph on Ex.PW6/C. From the perusal of Verification Report Ex.PW4/D1, it is clearly apparent that Ex.PW6/C, Ex.PW6/D and Ex.PW6/E are forged documents. From the perusal of reports Ex.PW4/D, Ex.PW8/A and Ex.PW8/B, it is further established on record that false and fabricated documents were filed by the accused with the Bail Bond. The accused in his statement U/s 313 Cr.P.C has admitted having appeared as "fake surety" in the court of PW6. The FSL report has corroborated the evidence of PW4, PW6 and PW8, whereby the specimen handwriting of accused has matched with the State V/s Om Prakash ("Convicted") Page 8 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 handwriting appearing on Bail Bond (Ex.PW6/B) and Ration Card (Ex.PW6/C).
18. Now, the question arises whether on the basis of aforesaid evidence on record, can the accused be convicted for offences punishable U/s 191/193/468/471/420 IPC, particularly when charge in this matter was framed only U/s 193 IPC. The answer has to be in "affirmative", as the law laid down by the Highest Court of this country in cases reported as, (i) "AIR 2003 SC Page 11", titled as, "K. Prema S. Rao & Anr. V/s Yadla Srinivasa Rao & Ors." and (ii) "(2011) 2 SCC 83", titled as, "S. Ganesan V/s Rama Raghuraman & Ors.", it has been laid down in no uncertain terms as under.
19. K. Prema S. Rao's case (supra) was a case wherein the accused stood chargesheeted for offences punishable U/s 498A and 304B IPC, however, the learned trial court in its judgment held that only offence U/s 498A IPC was made out against him and as such, he was acquitted for offence punishable U/s 304 B IPC. The judgment of the Ld.Trial Court was also affirmed by the Hon'ble High Court of Andhra Pradesh. The Hon'ble Supreme Court in Appeal filed in the matter found the accused guilty of commission of offence punishable U/s 306 IPC besides offence punishable U/s 498A IPC, although there was no specific charge framed against him for offence punishable U/s 306 IPC. The Hon'ble Supreme Court interalia held as under:
State V/s Om Prakash ("Convicted") Page 9 of 14
FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 xxxxx
22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC ( as quoted above) it is clear that all facts and ingredients for framing charge for offence under S.306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of S. 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for this said offence when found proved. In the alternate charge framed under S.498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of CrPC take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 of Cr.P.C needs reproduction:
"221. Where it is doubtful what offence has been committed (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsection (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
23. The provision of subsection (2) of Section 221 read with sub section (1) of the said Section can be taken aid of in convicting and sentencing the accused No.1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.
24. Section 215 allows criminal Court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the State V/s Om Prakash ("Convicted") Page 10 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 charge and it has not occasioned a failure of justice. See Section 215 Cr.P.C, which reads :
"215. Effect of errors No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
25. As provided in Section 215 of Cr.P.C omission to frame charge under Section 306, IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial Court for framing charge under Section 306, IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 495A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC.
26. It may be mentioned that against confirmation of his conviction by the High Court under S.498A, IPC, the accused No. 1 has not preferred any special leave to appeal to this Court. The facts found proved for his conviction and sentence under S.498A, IPC, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused No.1 was charged under S.498A and S. 304B, the accused can be convicted and sentenced under Section 306, IPC. We find no legal or procedural impediment in doing so". xxxxx (Underlining emphasized) State V/s Om Prakash ("Convicted") Page 11 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012
20. In "S. Ganesan's" case (supra), the Hon' ble Supreme Court has further been pleased to hold as under:
xxxxx
19. So far as the issue of setting aside the conviction under Section 120B IPC against both the respondents and not framing the charge under any other penal provision is concerned, it has to be considered, as to whether conviction under any other provision for which the charge has not been framed, is sustainable in law.
The issue is no longer res integra and has been considered by the Court from time to time. The accused must be aware as to what is the case against them and what defence they could lead. Unless the parties satisfy the court that there has been a failure of justice from non framing of charge under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of law is sustainable. (Vide Amar Singh Vs. State of Haryana).
20. This Court in "Sanichar Sahni Vs State of Bihar" while considering the issue placed reliance upon various judgments of this Court, particularly in "Topandas Vs State of Bombay", "Willie (William) Slaney Vs State of M.P", "Fakhruddin Vs State of M.P", "State of A.P. V Thakkidiram Reddy", "Ramji Singh V/s State of Bihar" and "Gurpreet Singh V/s State of Punjab" and came to the following conclusion: (Sanichar Sahni case, SCC p. 204, para 27).
"27. Therefore ...... unless the convict is able to establish the defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."
21. The case is required to be considered in the light of the aforesaid settled legal propositions. In the instant case, the prosecution did not establish any motive to commit the crime. There is nothing or record to show as to whether Rama Raghuraman (A1) had indulged in any physical intimacy with the deceased. The evidence of the doctor who examined the deceased, remained far from satisfactory and as he changed his version, he has been declared hostile.
22. If the case of the prosecution is taken to be true, we have to examine as to whether the case of the respondents falls within the ambit of Section 100 and Exception II to Section 300 IPC and as to whether the High Court has dealt with the same taking into consideration all these incriminating circumstances considered by the trial court. Admittedly, the High Court did not deal with any of the incriminating circumstances considered by the trial court for the purpose of conviction of the respondent and did not address itself to the relevant issues State V/s Om Prakash ("Convicted") Page 12 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 involved in the appeal. Therefore, the judgment and order of the High Court cannot be held to be sustainable in law and it suffers from perversity.
23. In "Shivaji Sahabrao Bobade Vs State of Maharashtra", this Court held: (SCC pp. 799800, para 6) "6... Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analyzing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant."
24. We are of the considered view that the High Court has unnecessarily shown misplaced sympathy in a case where conviction was eminent . In the facts and circumstances of the case, the respondents are the only persons who could explain as to under what circumstances the deceased suffered grievous injuries on the vital parts of his body. The Court has to draw its own inference considering the totality of the circumstances".
xxxxx (Underlining emphasized)
21. If the law laid down in the aforesaid judgments is applied to the facts of the present case, then it would be apparent that the accused was aware about the case against him and had taken his defence accordingly. He had the knowledge that he had sworn false affidavit in judicial proceedings, had appeared in assumed character in the court for standing "fake surety", had filed false and fabricated documents and as such no prejudice has been caused to him by not framing specific charges against him for offences punishable U/s 199/200/205/471 IPC. From the material on record, the prosecution has State V/s Om Prakash ("Convicted") Page 13 of 14 FIR No.347/2000: U/s 193/468/471/420 IPC: PS Subzi Mandi DOD: 09.04.2012 proved beyond reasonable doubt that accused had given false evidence before a court which by law was receivable as evidence. He had sworn false declaration, knowing it fully well that same was false. Further, he appeared in an assumed character before the court to give the aforesaid false declaration and used forged documents as genuine. Consequently, accused Om Prakash S/o Shri Panna Lal stands convicted for offences punishable U/s 193/199/200/205/471 IPC.
22. Let he be heard on quantum of sentence on 16.04.2012.
Announced in the open court (Vinod Yadav)
on 09.04.2012 Chief Metropolitan Magistrate:
Delhi
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