Delhi District Court
Sh. Roop Chand Sharma vs The State on 5 February, 2018
In the court of Sh. A.S. Jayachandra, Ld. District &
Sessions Judge, Shahdara, Karkardooma Courts, Delhi
CA no. 1092/16
&
CA No. 1130/16
Sh. Roop Chand Sharma
S/o Late Sh. Shahmal Sharma
R/o H. No. 104 & 52, Bank Colony,
Mandoli Road, Nand Nagri,
Delhi-110093. .....Appellant
Vs.
1. The State
Through Director of Prosecution
Govt. of N.C.T. of Delhi.
2. Sh. Jagmohan Sharma
S/o Not Known
R/o Flat No. 4, Gali No.5, Bank Colony,
Mandoli Road, Nand Nagri, Delhi-110093.
3. Sh. Chaman Prakash
S/o Not known.
R/o Flat No. 102, Gali No.8, Bank Colony,
Mandoli Road, Nand Nagri, Delhi-110093.
4. Sh. Lokender Gusai
S/o Not known
R/o Flat No. 22-B, Gali No.8, Bank Colony,
Mandoli Road, Nand Nagri, Delhi-110093.
Presently residing at :
Flat No. 91, Gali No.8, Bank Colony
Mandoli Road, Nand Nagri, Delhi-110093.
..... Respondents
Date of institution : 20.04.2015 (C.A. No. 1092/16)
: 16.05.2015 (C.A. No. 1130/16)
Order reserved on : 17.01.2018
Date of Order : 05.02.2018
Roop Chand Sharma vs. State Etc. CA No. 1092/16 Page 1/16
Roop Chand Sharma vs. State Ors. CA No.1130/16
By a common judgment both these appeals are being
disposed of since parties to the litigation being common and both
arising under the same impugned judgment and an order flowing
therefrom.
1. The appellant is the complainant herein who filed a
complaint u/s 200 of Cr.PC against the respondents for the
offences u/s 387, 406, 448, 452, 467, 468, 506 r/w S. 34 of IPC.
By an order dated 31.10.2003, the ld. M.M. took cognizance for
the offences u/s 452 and 506 r/w S. 34 of IPC after recording the
complainant's evidence.
2. Thereafter, the pre-charge evidence was recorded
and charges were framed for the offences u/s 451, 506 r/w S. 34
of IPC against the accused who are the respondents in this
appeal. The gist of the charge is that on 5.5.2003, all the
accused (respondents herein) with their common intention have
trespassed into the house of the appellant around 5.00 PM at
No.104, Bank Colony, Mandoli Road, Nand Nagri, insulted and
criminally intimidated the complainant. The said charges were
framed on 21.12.2005.
3. Thereafter, the complainant examined four witnesses
and closed his side. The statement of all the accused is recorded.
The defence has also examined two witnesses, DW-1 Bihari Lal
and DW-2 Jagmohan Sharma and closed their side. After hearing
the ld. Counsel, ld. M.M. by a judgment dated 5.3.2015, had
acquitted all the accused persons holding that the complainant
failed to prove the accusations beyond reasonable doubt in CC
No. 21-RBT/2014.
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Roop Chand Sharma vs. State Ors. CA No.1130/16
4. Aggrieved by the said judgment and decree, the
criminal appeal No. 1092/16 is filed.
5. The very complainant had filed another appeal no.
1130/16 wherein the application filed by the appellant u/s 340 of
Cr.P.C. came to be dismissed by the ld. MM while rendering the
judgment in CC No. 21-RBT/2014.
Grounds in Appeal No. 1092/16 :
6. The Appellant contends that the impugned judgment
is hypothetical, based on conjectures and surmises and
impugned order suffers from demonstrable errors. Ld. Counsel
urges that the court found fault in the case of the prosecution
without looking into the truth. There was initially no registration of
FIR and the whole burden to prove the facts cannot be shifted on
the complainant. The other offences were given up erroneously.
The observations of the Ld. MM that the civil court found that the
accused as land-grabbers and they have forged and fabricated
certain documents to claim that they are the office bearers of the
resident welfare association. Ld. MM failed to consider that this is
a case of extortion committed by the accused. Accused
Jagmohan Sharma deposed on oath that he is blind but the same
is false since he was attending the court without any help. He is
not blind in fact and despite bringing the same to the knowledge
of the Ld. MM, the application u/s 340 Cr.PC came to be
dismissed. The application filed by the complainant u/s 311 of
Cr.P.C. was not decided. The facts were not properly considered
like the threats, the repeated acts on various dates amounting to
the offences. The minor contradictions were blown up and thus
the impugned judgment suffers from perversity. The law is
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Roop Chand Sharma vs. State Ors. CA No.1130/16
wrongly applied. The ingredients of the offences were made out in
the evidence adduced by the complainant. The Ld. MM merely
based its findings on technicalities of law and presumptions. The
appellant prays for setting aside the judgment and to order for
reinvestigation/framing of charges for proper offences and to
remand the matter back to the trial court.
Grounds of appeal in 1130/16 :
7. The court below ought to have ordered for an enquiry
regarding the fabrication of a certificate issued by the Hindu Rao
Hospital and the certificate issued by the Rehabilitation Centre for
the Blind, Mount Abu, Rajasthan. The Ld. Court below hurriedly
passed the above order without application of mind. The said
document of the accused person was presented only to gain the
sympathy of the court by fabricating the same. Had both the
certificates duly appreciated, this amounted to an offence u/s 467,
468 and 471 of IPC. Jagmohan Sharma appeared in the trial
court without anybody's help. He had wrongly claimed to be the
president of RWA since 1988 but RTI queries reveal that the
society was registered in the year 1992. Likewise, he falsely
claimed that he had no cases but was facing CS no. 540/2009
before the ld. ARC court, Kkd courts. The trial court had
abdicated its duty u/s 340 of Cr.PC and the impugned order dated
5.3.2015 is perverse and illegal. The same is opposed to the
basic principles of law resulting into miscarriage of justice. The
accused Jagmohan Sharma was not blind but claimed so under
the false certificates. The complainant filed an application u/s 311
of Cr.PC and no order is passed on the said application. There is
perversity in the findings and the law is misapplied. Under these
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Roop Chand Sharma vs. State Ors. CA No.1130/16
circumstances, the appellant prays for setting aside the order and
to remand back the matter to the trial court for a fresh enquiry.
Upon notice, the respondents appeared through their
counsel. The trial court records are procured. Perused the same.
Heard the ld. Counsel on either side.
8. The appellant counsel submits that the evidence of
CW-1 to CW-4 would prove the case of the appellant that the
offences are clearly made out. According to him, the document
relied by the defence in the court below namely DW1/A is not
proved.
9. On the other hand, the Ld. Counsel for the
respondents submit that the complaint was initially filed before the
police dated 18.5.2001 and the same does not speak of the
averments made in para 6 and 7 of the complaint under section
200 of Cr.P.C. The complainant claimed that the same was
reported to the police vide report dated 18.5.2001. No PCR call
was made. PW-1 is chance witness and he had deposed
differently in pre-charge evidene and after charge evidence. No
offence u/s 503 and 506 of IPC are made out. It is submitted by
the counsel that this matter is rightly appreciated in the light of the
evidence and this court sitting in appeal should be slow in setting
aside the order of acquittal. It was also argued that the matter
being sixteen years old, cannot be now remanded which would
serve no useful purpose. He prays for dismissal of both the
appeals.
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Roop Chand Sharma vs. State Ors. CA No.1130/16
Points for determination in both the appeals :
10. In the light of the submissions made, the following
points arise for determination in both the appeals :
(a) Whether the impugned judgment and order in CC
No. 21-RBT/2014 dated 05.03.2015 acquitting the accused and
dismissing the application u/s 340 Cr.PC filed by the complainant
is perverse, illegal and opposed to the facts and law on record?
(b) If so, what order?
11. Taking note of the submissions made on either side,
the points for determination are being answered as under :
Point (a) :
12. The perusal of the complaint u/s 200 of Cr.P.C show
that the accused no. 1 to 3 came to their house on 05.05.2001
and 13.05.2001 and demanded Rs. 50,000/-. If the same is not
paid the Northen Side of the road was threatened to be
encroached by the accused. The allegation is that they also
threatened the complainant and his wife that if they wished to live
they should pay the amount or face extinction. Such a threat also
was repeated on 19.05.2001. The wife of the complainant
reported the matter to the police on 18.05.2001.
13. The charge framed is pertaining to the date
05.05.2003 for the offences u/s 451, 506 r/s 34 of IPC. Now the
appellants contend that the other offences pleaded in the
complaint in writing be also framed i.e. 387, 406, 448, 452, 467,
468 of IPC.
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Roop Chand Sharma vs. State Ors. CA No.1130/16
When the charges were framed on 21.12.2005 by
the ld. MM, the complainant did not challenge the said order. The
order framing the charge has become final. Now, the appellant
cannot seek the addition of charges in the appeal stage nor can
pray for remanding the case to frame the additional charges.
14. It is also seen that while framing the charge, it is
mentioned that the incident pertained to 05.05.2003. In fact this
is typographical error. The same pertains to 05.05.2001. After
framing of the charge, the evidence is recorded.
PW-1 deposed that he was sitting in the house of the
appellant on 05.05.2001 at about 08.00 p.m. The three accused
knocked the door. He had further testified that they talked in high
voice with one Untesh Sharma. The gist of talk as deposed by
him is that " We are the Choudhary of this locality. We require
funds of Rs. 50,000/- for the association and otherwise we will
take possession of the northern side of the house No. 52 of Bank
Colony". It is also testified by him that they threatened that "you
have to give this money else the value of your property remains
half of its value". After thus saying, these persons went back.
15. Though this witness was cross examined, the gist of
the evidence does not show that they have entered the house
since it is only deposed that all the three persons upon knocking
the door which was opened by Ms. Untesh Sharma. This witness
heard the high voice. The examination in chief itself shows that he
came out along with Roop Chand Sharma. There is no assertion
by CW-1 in his testimony dated 16.02.2008, that the accused
have entered the house and trespassed the demand of money by
them and consequences of non payment was to occupy the
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northern side of H. No. 52 as heralded by the accused. The
testimony of PW-1 falls short to sustain the charge u/s 506 of IPC
and also u/s 451 of IPC. CW-1 does not speak of any incident
dated 13.05.2001 and there is no charge framed for the incidents
of 13.05.2001.
16. CW-1 being the eye witness, the evidence of the
other complainant's witnesses are also being re-appreciated
herein. Smt. Kuntesh Sharma testified that all the accused
knocked at the door on 05.05.2001 at 8.00 p.m. She opened the
door. Her husband and children were talking to someone in the
house. Accused no. 1 Jagmohan Sharma demanded Rs.
50,000/- so that CW-2 could have the northern side open. The
amount was demanded for the welfare association. It is not
testified by her that they barged into her house by trespassing.
Her testimony does not show that the accused threatened her
with dire consequences of her life or that of her husband.
17. CW-1 further in her testimony had stated that she
does not know where the accused demanded money on
13.05.2001 from her husband. She further stated that the
accused demanded money on 18.05.2001. On that day, it found
that the accused threatened that if the money is not paid the
accused would do adverse against her. In the cross examination,
it is found that she complained to the police after 13 days. There
were no neighbours when the incident happened. In the cross
examination, this witness clearly stated that " when all these
accused persons came inside our hall, Jagmohan Sharma talked
to her and the remaining accused were on the chowk. The
clarification is also found as to what she meant by chowk. It is
Roop Chand Sharma vs. State Etc. CA No. 1092/16 Page 8/16
Roop Chand Sharma vs. State Ors. CA No.1130/16
clarified that " the chowk which I meant is the place which is
inside and outside the door and before the entrance of the door of
house." Therefore, this clarification also shows that the other
accused were not inside the house. She had not made any PCR
call to the police by dialing 100 number. Her husband also had
not called the police as admitted by her. She denies the
suggestion that since no incident took place and that she did not
complain. From the book of the human conduct, if some
unknown persons enter the house unauthorizedly and demand
money coupled with the threats, none would remain silent for 13
days. The immediate reaction would be to raise a hue and cry,
call for the help from the neighbours or to intimate the police who
are available at emergency phone number 100. CW-2's testimony
also shows that all the accused did not enter their house and they
were at the chowk which is near the entrance door. Therefore, it
becomes difficult to hold that they committed the offence of
trespass. She had remained indolent in not complaining to the
police.
18. CW-3 Roopchand Sharma's evidence is also
perused to find out the corroboration to the testimony of CW-2.
He testifies in his chief that the incident took place around 8.30
p.m. on 05.05.2001. He has also deposed that the accused came
to the chowk of his house and further deposed that all the
accused demanded of Rs. 50,000/- if not paid to face hindrance
of northern side of the house. It is testified by him that the money
be paid to save the life of his family, children and himself. He
further testifies that they again came on 13.05.2001 for which no
charges are framed. The testimony of CW-3 that they have
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Roop Chand Sharma vs. State Ors. CA No.1130/16
threatened the lives of CW-3 and his family members is not
corroborated with the testimony of CW-2 for the reasons that
a) CW-2 stated that upon opening the door accused Jagmohan
Sharma talked to her and there was no threat with regard to the
life deposed by her.
b) Whereas CW-3 testifies that all the accused demanded the
money from him. CW-2 had stated that accused Jagmohan
Sharma demanded and the accused were on the chowk when
Jagmohan Sharma talked to her as found in her cross
examination.
c) It is also testified by CW-3 that he did not make any complaint
nor his family members immediately after the incident dated
05.05.2001. He informed to the police only on 18.05.2001.
19. Ld. MM while considering the testimony had come to
the conclusion that the evidence of CW-3 does not inspire
confidence as there is improvements. It also noted that the
complaint dated 18.05.2001 does not speak of the incidents
dated 05.05.2001. The documentary evidence is also perused.
To re-appreciate the evidence in this appeal, the same is looked
into from the trial court records were a photocopy is found on
record. The relevant allegation is that " Uprokt logo ne mujhe
bulaker tatha mere makaan aaker dhamki di hai ki aapko pata
nathi hai ki yahan ke choudhary hum hain". After perusal of this
document, there is no specific mention with regard to the alleged
dates as found in the complaint. Further it is seen that the
accused have called her by inviting ( bulaker) and also by visiting.
There is no mention that these accused have trespassed into her
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Roop Chand Sharma vs. State Ors. CA No.1130/16
house with an intention to commit any offence punishable with
imprisonment which is the requirement u/s 451 of CPC. After
careful perusal of the evidence on record, this court finds no
perversity or illegality in the judgment of the ld. Court below
holding that the ingredients for the offences u/s 451 and 506 of
IPC are made out. The evidence adduced on behalf of the
complainant does not make out a threat to cause injury to the
person reputation or property, since the non payment was to
meet with the consequences of reducing the value of the property
in the locality. In fact, the incidents dated 05.05.2001 is not
corroborated with the tenable and believable evidence. The ruling
in Satnam Singh Vs. State of Punjab dated 23.08.2013 of P &
H High Court, holding that the mere vague allegations would not
satisfy the ingredients of the offences u/s 506 of IPC and further
relying on the rulings in Amitabh Adhar Vs. NCT of Delhi 85
(2000) DLT 415: Kanshi Ram Vs. State, 86, ( 2000) DLT 609 are
rightly relied by the ld. Court below. Therefore after entire re-
appreciation of oral and documentary evidence on record, this
court is unable to hold that the impugned judgment is perverse,
illegal and opposed to the facts and evidence on record.
20. The grounds urged that the impugned judgment is
suffering from hypothetical presumptions, conjectures and
surmises is very bald and the same is contradictory to the record.
The further ground that there was an initial error in not ordering
investigation u/s 156 (3) of Cr.P.C. of the private complaint by the
appellant cannot be a ground to assail the judgment rendered
after recording of the evidence. It is also urged that the other
offences under section 387, 406, 452, 467, 468 of IPC are made
out, cannot be considered at this stage since the appellants have
Roop Chand Sharma vs. State Etc. CA No. 1092/16 Page 11/16
Roop Chand Sharma vs. State Ors. CA No.1130/16
not challenged the order framing charge. Therefore, the ground
that accused had fabricated the documents of the welfare
association under which they are alleged to have demanded
money is not found from the charge and the fresh offences cannot
be imputed in the appellate stage against the respondents. The
appellants wanted to bring to the notice of this court that one of
the accused before the trial court by name Jagmohan Sharma
was attending the court without any help though claiming to be
blind amounting to offence u/s 340 of Cr.P.C. is discarded by the
trial court. This is the main ground of appeal in appeal no.
1130/16 which is filed u/s 341 of Cr.P.C. However, the accused
having not been tried for the charges under fabrication of
evidence, the same cannot be a valid ground to assail the
impugned judgment acquitting the accused.
21. In K. Prakashan Vs. P. K. Surenderan, 2008 (1)
SCC 258, it was held that when two views are possible,
appellate court should not reverse the judgment of acquittal. After
perusal of the evidence, the findings are not perverse. The
perversity is also defined to mean " against the weight of
evidence" in Gamini Bala Koteshwara Rao Vs. State of A.P.
AIR 2010 SC 589. After careful re-appraisal of the evidence, this
court sees no perversity in the findings.
The grounds of appeal in C.A. No. 1130/16:
22. It is urged that two witnesses were examined by the
defence in the said case. Accused no. 1 deposed as DW-2. In his
testimony, it is alleged that he deposed to be blind and cannot
move without the help of others. It is also deposed by the witness
that no case or trial is faced by the accused but there was a civil
Roop Chand Sharma vs. State Etc. CA No. 1092/16 Page 12/16
Roop Chand Sharma vs. State Ors. CA No.1130/16
case in 540/2009 which was decided by Ld. ARC Shri S. K. Arora
vide judgment dated 31.08.2012. The said statement is false.
The appeal is filed on the ground that the DW-2 has forged the
certificate dated 25.02.1985 issued by Hindu Rao Hospital and
another certificate issued by the centre for the blind Mount Abu,
Rajasthan. The trial court did nothing to know about the reality of
blindness and DW-2 had fabricated and committed perjury. The
grounds urged are that there was a conspiracy and the
complainant brought the same to the knowledge of Ld. MM and
ld. MM ought to have taken cognizance of the offence.
23. While arguing, the ld. Counsel for the appellant
emphasized that DW-2 was not blind and he had appeared before
the trial court without anybody's help. However, he deposed on
oath that he is unable to move without anybody's help.
24. Keeping in mind of the arguments advanced by the
ld. Counsel, the trial court records are perused. The accused had
made a statement u/s 281 of Cr.P.C. The relevant portion is " I
got my service in handicapped quota as I am blind and I cannot
go out of the house in night without the help of others". This was
recorded on 13.02.2014. However, while deposing DW-2, he
deposed that he is handicapped since birth for which he produced
certificate dated 14.06.1969 issued by Mount Abu, Rajasthan. He
also relied on another certificate issued by Hindu Rao Hospital,
Delhi and the third certificate issued by Mollana Azad Medical
College. The same are marked as Ex. DW1/A to C.
25. In the cross examination, it is found that he has also
testified that he has passed matriculation not from the blind
school and thereafter got training from blind school Mount Abu to
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Roop Chand Sharma vs. State Ors. CA No.1130/16
do the routine work. It is also elicited that Ex. DW-1/C there is
mention that he suffers from poor vision. It is also elicited that
Ex. DW1/B there is 100 % visual disability shown after cutting.
26. The appellant argues that these certificates are
fabricated. In fact, the documents reveal as under:
a) Ex. DW1/A- dated 14.06.1979 issued by Rajasthan- is a
certificate having completed rehabilitation course and theoretical
training.
b) Ex. PW1/B- is the certificate issued by Hindu Rao Hospital
showing that the disabilities 100 % and suffering from opacity in
optical injectory and he may be considered as visualy
handicapped person.
c) Ex. DW1/C- certificate from LNJP dated 25.02.1985 showing
that he is suffering from poor vision and may be given the benefit
of physically handicapped person.
27. All these certificates are issued by the proper
authorities. Just because a person had attended the court without
anybody's help, no court can say with precision that a person is
pretending to be blind and deposing falsehood intentionally. After
reading the entire trial court records and the documentary
evidence, it is clear that DW2 was suffering from visual disability
which was recommended to be treated as 100 % disability. This
court is unable to understand how the same is perjury when such
contention of DW-2 is supported by the medical documents. It is
clear that DW-2 was having poor visibility in the night and that is
why he has undergone certain training. Therefore, it becomes
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Roop Chand Sharma vs. State Ors. CA No.1130/16
difficult to hold that the accused Jagmohan Sharma had
intentionally deposed falsehood before the court below.
28. Further more, the dictate of section 340 of Cr.P.C.
requires the court to form an opinion whether the initiation of
inquiry for the offences u/s 195 of Cr.P.C. is necessary and
expedient in the interest of justice or not. It is always to be to the
best satisfaction of the court concerned in which such evidence
is alleged to have been produced by the person which would
affect the public justice.
29. The ld. Court below while disposing the application
u/s 340 of Cr.P.C. by a separate order had noted that no evidence
is placed to show that DW-2 had fabricated these documents.
30. It is only a figment of imagination on the part of the
appellant to allege that the DW-2 was not really blind and that he
had fabricated the documentary evidence at Ex. DW1/A to C.
The finding of the trial court is not perverse since there is no other
evidence to the contrary.
31. Further more, when there is nothing to discredit
these documentary evidence, initiation of proceedings u/s 340 of
Cr.P.C. would be baseless. Further more, the same is not in the
expediency of justice. Hence, this court sees no grounds to
interfere with the order dismissing the application of the appellant
under section 340 of Cr.P.C. by the ld. MM. Consequently, the
following:
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Roop Chand Sharma vs. State Ors. CA No.1130/16
ORDER
Both the appeals stand dismissed. The judgment and the order dismissing the application u/s 340 of Cr.P.C. in C.C. No. 21RBT/14 dated 05.03.2015 stands hereby affirmed. The trial court records alongwith a copy of this order be sent back. Original of this order be kept in C.A. No. 1092/16 and copy in the other case. Both the files be consigned to record room. Digitally signed by A.S. A.S. JAYACHANDRA JAYACHANDRA Date:
2018.02.05 17:03:12 -0400 Typed to the dictation directly, (A.S. Jayachandra) corrected and pronounced in District & Sessions Judge, open court on 05.02.2018 Shahdara/KKDCourts, Delhi.Roop Chand Sharma vs. State Etc. CA No. 1092/16 Page 16/16
Roop Chand Sharma vs. State Ors. CA No.1130/16