Delhi District Court
State vs . Shanti Swaroop& Othrs. on 7 June, 2022
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS,
DELHI
STATE
Vs.
SHANTI SWAROOP & ORS
COMPUTER ID NO.65108/2016
FIR NO.354/2007
PS PASCHIM VIHAR
U/S 323/506/420/34 IPC
Sh. Sunil Kumar Julka
S/o Sh. Mohinder Pal
H. No. 76, Peeragarhi Relief Camp,
Peeragarhi, Delhi-87
...... Complainant
Versus
1. Shanti Swaroop
S/o Late Sh. Hukum Chand
R/o H.No.632, Alipur, Delhi110036
2. Sushil Kumar
S/o Sh. Kuldeep Raj
R/o H.No. 129, Harsh Vihar, Pitampura
New Delhi-110034
3. Baljeet Singh @ Baljeet Kumar
S/o Late Sh. Narender Nath
(Since Deceased)
4. Jagat Mohan @ Bittu
S/o Late Sh. Narender Nath
R/o Flat No.6, Pocket-1, Sector A-6
Narela, Delhi-110040
......Accused Persons
Date of Institution : 08.02.2013
Date on which Judgment was reserved : 20.05.2022
Date of Judgment : 07.06.2022
Final Order : Convicted
Page 1 of 28
FIR No. 354/2007
P.S. Paschim Vihar
State Vs. Shanti Swaroop& Othrs.
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, accused persons namely Shanti Swaroop S/o Late Sh. Hukum Chand, Sushil Kumar S/o Sh. Kuldeep Raj Mahajan and Jagat Mohan @ Billu S/o Sh. Narender Nath have been set up by the prosecution to face trial on the allegations that on 09.06.2005, all the accused persons had along with co-accused Baljeet Singh (since deceased), in furtherance of their common intention, cheated the complainant namely Sunil Kumar Julka by dishonestly inducing him to sign on blank papers and to deliver the said papers to them and therefore, the accused persons were alleged to have committed the offence u/s 420/34 IPC. At the same time, it was also alleged against the accused persons that on 05.10.2005, at about 09.30 pm, all the accused persons had, in furtherance of their common intention, criminally intimidated and caused simple hurt to the complainant, when the complainant was on his way to Lal Market, Near Super Bazar bus stand and therefore, all the accused persons were also alleged to have committed the offences punishable under section 506/323/34 IPC.
2. The FIR was lodged at the instance of complainant Sunil Kumar Julka, against the accused persons in respect of offences punishable u/s 420/ 307/ 323/ 506 IPC. On conclusion of investigation, challan u/s 173 Cr. P.C was filed against all the accused persons u/s 420/ 323/ 506/ 34 IPC.Page 2 of 28 FIR No. 354/2007
P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
3. Cognizance was taken against the accused persons by the then Ld. MM on 12.03.2013 and the accused persons were summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr. P.C vide order dated 06.08.2015, charges u/s 420/506/323/34 IPC were directed to be framed against all the accused persons by the then Ld. MM-07/West, to which all the accused persons pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence. The prosecution has examined 12 witnesses to bring home the guilt of the accused.
5. PW1/complainant namely Sh. Sunil Kumar Julka deposed that at the relevant time, he was residing at D-382, Peera Garhi, Relief Camp, Delhi as he was an immigrant from Punjab. He deposed that the DDA had issued a scheme to provide flats at Narela to the immigrants and therefore, he went to the office of SDM, Nangloi to apply for a flat. There, PW1 came to know that a flat had already had been issued on his name. When PW1 told the SDM regarding the fact that he had never applied for the flat, then he/PW1 was advised to confirm from the office of DDA. Subsequently, when PW1 went to DDA office, it was told to him by the officials from DDA that one flat bearing number No.299, Pocket- A6, B-4 had already been issued in his name. Therefore, he went to the said address and found that one person namely Pandey to be present there and the said person told him that the name of the owner of the said flat Page 3 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
was Sh. Sushil Kumar. Thereafter, PW1 went to the office of accused namely Sushil Kumar and the accused Sushil Kumar told him that he had purchased the property/ flat from one Sh. Shanti Swaroop. It was the version of the PW1 that the accused Sushil Kumar had told him to come on 09.06.2005 to meet the accused Shanti Swaroop. Therefore, PW1 had on 09.06.2005, along-with one Ms. Pritam Kaur went to the office of Sushil Kumar, where 4-5 persons were found to be present. At that time, accused Sushil Kumar introduced him/PW1 with the accused Shanti Swaroop. PW1 further deposed that the accused Shanti Swaroop had told him that he was a SI (Sub Inspector) in Delhi Police. PW1 deposed that the accused persons had made him to sign and to affix his thumb impressions and the impression of all his fingers on plain papers. It was the version of PW1 that when he/PW1 refused to sign and affix impressions, the accused namely Shanti Swaroop had threatened him and abused him. PW1 deposed that the accused persons had showed him a lathi and threatened him and also gave beatings to him. It was the version of PW1 that in the meantime, the accused namely Sushil Kumar had told him/PW1 that his signatures and impressions were required to get the said property/flat transferred back to his name. Therefore, PW1 got allured by the statements of accused persons and consequently, he had appended his signatures and affixed thumb and finger impressions on the blank papers. PW1 deposed that the accused persons had falsely promised to him that they will help him to get his flat back. However, the accused persons had cheated him and had grabbed his said flat. During the course of his testimony, PW1 further deposed that on 22/23.06.2005, he had called the Page 4 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
accused Sushil Kumar to enquire about his flat, however, the accused Sushil Kumar had threatened him with dire consequences, if he ever called him i.e. the accused Sushil Kumar again. It was the version of PW1 that the accused told him to forget about the said flat and that he was even restrained to approach the police officials. Thereafter, he had filed a complaint case in the Hon'ble Court. PW1 proved the statement (Mark- A), made by him to the police. He deposed that he had handed over the photocopy of the record of Civil Suit No.78/08 to the police and the same was seized by the IO vide seizure memo (Ex.PW-1/A). During the course of his testimony, PW1 had correctly identified all the accused persons.
6.1 In his cross-examination at the instance of the accused Sushil Kumar, PW1 deposed that he had studied up to 5th class and that he can read and understand Hindi language but he cannot read English language. He deposed that he was carrying on the small business of selling children clothes and that he had come to Delhi in the year 1989 from Punjab as a migrant. He deposed that the incident in question had taken place in the year 2005. PW1 admitted the fact that he had never applied for flat with DDA and that no flat was issued in his name by DDA. PW1 deposed that he had met Sushil Kumar in the year 2005 and that when he had met the accused Sushil Kumar, one social worker namely Pritam Devi was also with him. It was his version that the accused Sushil Kumar was alone when they first met him but he had called accused Shanti Swaroop after sometime, who subsequently came alone. PW1 also admitted the fact that at that point of time, no threat was Page 5 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
given to him by the accused persons and that both the said accused persons asked him to show his papers i.e. his ration card from Punjab, payment receipts and his photo. PW1 had handed over the said papers to them i.e. the accused persons and they told him/PW1 that not to worry and that he/PW1 would get justice. PW1 deposed that he had disclosed all the facts to the police. However, when PW1 was confronted with his statement under section 161 Cr. P.C (Mark-A), the above-stated facts, were not found to be recorded. PW1 categorically denied the suggestion of the accused Sushil Kumar to the effect that he had himself called the accused namely Sushil Kumar and it was not him i.e. the accused Sushil Kumar, who had called him/PW1. He also denied the fact that he had never told the police that he was called at Narela by the accused persons where he was threatened by them. PW1 admitted the suggestion of the accused to the effect that he had not made any complaint on the day when he was threatened by the accused persons as they did not let him to approach the police and threatened with dire consequences if he complained with Narela police. He deposed that the accused persons had taken his signatures on at-least 15-20 blank stamp papers, the value of which was not known to the complainant/PW1.
6.2 In his cross-examination, at the instance of the accused Shanti Swaroop, PW1 further deposed that he had again met the accused Shanti Swaroop at Peeragarhi where the accused Shanti Swaroop met him on the road on his way back. It was the version of PW1 that at that time, the accused Shanti Swaroop had called him and offered him Page 6 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
Rs.3 lacs to settle the matter. However, he had refused the offer saying that he/PW1 only wanted his flat and not money. He deposed that he had filed a Civil Suit with respect to the case property and the same was decided in his favour. During the course of his cross-examination, PW1 was handed over the judicial file and was requested to point out the blank papers on which his signatures were forcibly taken by the accused persons. After going through the judicial file, the witness/PW1 deposed that no such documents, were present on record. PW1 admitted the fact that he had never met with Shanti Swaroop after their meeting at Peera- Garhi. He deposed that he had made complaint to the police on two occasions. PW1 further deposed that the accused namely Jagat Mohan was residing in Narela and that he had come along-with his brother/ co- accused namely Shanti Swaroop and the co-accused Sushil Kumar on the day when they had met at Peeragarhi. He had made complaint on the same day by calling on 100 number. He deposed that the incident had taken place at about 07:00 - 08:00 PM.
6.3 In his further cross-examination at the instance of the accused namely Sushil Kumar, on a subsequent date of hearing, PW-1/Sh. Sunil Kumar Julka deposed that he can sign in Hindi and English language. He admitted the fact that the documents Ex.PW-1/DA bears his photograph. He also admitted the fact that the signatures at point A on Ex.PW-1/DA was not his signatures. He admitted the fact that the document Ex.PW-1/DD and PW-1/DE bears his photograph. He further deposed that he had not filed any complaint against Sumit Kathuria. He Page 7 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
categorically denied the suggestion of the accused to the effect that he had sold the property in question to Sumit Kathuria by way of power of attorney, agreement to sell etc. He deposed that he was not aware whether on 20.06.2005, the property was sold by Sushil Kumar to one Surbhi Singh. PW1 also denied the fact that the accused Sushil Kumar had purchased the said property by way of Power of Attorney, Agreement to Sell etc. from Sumit Kathuria.
7. PW2/son of the complainant namely Sh. Anil Kumar Julka deposed that on 05.10.2005 at about 09:30 PM, he along-with his father was going to Lal Market, Paschim Vihar and when they reached near bus stand, Super Bazar, Rohtak Road, all the accused persons, who were correctly identified by PW2, during his testimony, had stopped their way and they had told his father to come with them. It was the version of PW2 that the accused persons had told him to stay there as they talked with his father. He deposed that the accused persons took his father at a distance of 40-50 meters and after sometime, he had heard the cries of his father and he ran towards his father. When PW2 reached there, he saw that one of the accused was having a knife, which was covered with the blood and his father was lying, in the pool of blood there. Thereafter, he had called the police officials. PW2 further deposed that the accused persons, ran away in a car whose registration number, he was not able to see, as it was dark. Subsequently, the police officials took his father of SGM hospital for treatment and his statement was recorded by the IO. In his cross-examination, PW-2 deposed that at the relevant time, he was Page 8 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
pursuing B.A. final year and that his father was running a cloth shop. He deposed that on 06.06.2016, he was residing in the Peera Garhi Camp and that on the said day, they had left their house at about 09:00 PM to purchase medicine for his mother and that the incident took place when he and his father was going to purchase medicine. He deposed that the accused persons came to them on foot and that he had not seen the car of the accused persons. PW2 admitted the fact that the accused persons were empty hand at that time and that they had taken his father on foot. It was his version that there were no public person at the spot and that that the traffic was moving, though no-body had stopped there. As per the version of PW2, the distance between the spot and the Rohtak Road might be 1000 meters and that when the accused persons took his father away from him, they were talking and he was not having any knowledge as to what happened there. PW2 denied the suggestion of the accused persons to the effect that no one was present near his father when he had seen his father in the pool of blood. He deposed that he had told the police that one of the accused persons was having knife in his hand. PW2 admitted the fact that it was dark night at that time. PW2 categorically denied the suggestion of the accused persons to the effect that the accused was not having any knife in his hand, as was alleged by him. PW2 deposed that his statement was never recorded by the police. PW2 further denied that he had deposed falsely at the behest of his father/ complainant.
8. PW3/SI Dev Singh deposed that on 19.04.2007, while, he was posted as Duty Officer at PS Paschim Vihar, he had Page 9 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
received a written complaint and that on the basis of the said complaint, he had registered FIR of the instant case i.e. FIR bearing No.354/07 under section 506/323/307/420 IPC. He proved the said FIR (Ex.PW-3/A) and the endorsement, made by him, on the original complaint i.e. Ex.PW-3/B. He deposed that after registration of FIR, he had handed over the carbon copy of FIR and original complaint to SI Manoj Kumar for investigation. In his cross-examination, PW-3 denied the suggestion of the accused persons to the effect that he had not recorded the FIR or that the FIR was not in his handwriting.
9. PW4/Sh. Sumit Kathuria deposed that on 30.01.2009, the IO of the instant case/FIR, came to him and had made enquiries from him. It was the version of PW4 that he had informed the IO, that on 04.01.2002, he had purchased property bearing No. 299, Ground Floor, Pocket-6, Sector-B4, Narela, Delhi from Sh. Sunil Kumar and thereafter, he got the said property duly registered in the office of Sub-Registrar, Nangloi. He deposed that he had handed over the copy of GPA to the IO, which was seized by the IO, vide seizure memo Ex.PW- 4/A. The copy of the said GPA is Ex. PW-1/DE. In his cross-examination, PW-4 deposed that at the time of registration of property bearing No.299, Ground Floor, Pocket-6, Sector-B4, Narela, Delhi, Sh. Sunil Kumar along-with two other witnesses were present in the office of Sub- Registrar. He further deposed that he had sold the said property to accused namely Sushil Kumar and the sale was a registered sale and the documents of the sale were registered in the office of Sub-Registrar and Page 10 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
that he had handed over all the relevant original documents to accused Sushil Kumar. PW4 also admitted the fact that at the time of handing over of the physical possession of the said property, he had opened the lock of the said property and handed over the vacant possession to accused Sushil Kumar. He also admitted the fact that he had cleared all the dues of electricity and water before handing over the possession to Sushil Kumar.
10. PW5/Dr. Manoj Dhingra deposed that he was working in SGM hospital and that on 26.05.2009, he gave an opinion, upon the application, made by the IO to the MS as the MS had marked the said application to him to give an opinion. He deposed that after going through the medical record of the patient, he found that there was only one abrasion on the left lower leg and that the nature of the injury was simple. He proved the opinion, given by him, in writing, on the said application and the same has been exhibited as Ex. PW-5/A. In his cross- examination, PW5 denied the suggestion of the accused persons to the effect that he had given his opinion on the application marked by MS without seeing the patient. PW5 admitted the suggestion that the abrasion caused to patient can also be caused by falling on the ground.
11. PW6/Dr. P.C. Prabhakar deposed that he was working in SGM Hospital since 2005 and that he had worked with Dr. Amit Kumar Prasad in the official capacity and had seen him i.e. Dr. Amit Kumar Prasad, writing and signing in daily course of business. He identified the handwriting and signatures of Dr. Amit Kumar Prasad and Page 11 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
proved the copy of MLC bearing No.14025 dated 06.10.2005 (Mark-X). PW6 correctly identified the signatures of Dr. Amit Kumar Prasad on the said MLC at point A.
12. PW7/IO/Insp. Manoj Sharma deposed that on 19.04.2005, while he was posted as Sub-Inspector at PS Paschim Vihar, he was assigned the instant FIR for investigation by the then SHO, PS Paschim Vihar. He deposed that he had conducted enquiries and recorded the statement of the complainant namely Sunil Kumar Julka on 26.09.2007 and that on the same day itself, he had formally arrested accused persons namely Sushil Kumar and Shanti Swaroop, and had released them on bail, as they had already been admitted to anticipatory bail. He proved the arrest memo (Ex.PW-7/A) of the accused namely Shanti Swaroop, arrest memo (Ex.PW-7/B) of accused namely Sushil Kumar. During the course of his testimony, after refreshing his memory, PW7 deposed that on 05.10.2005, he had received call vide DD No.69B, PS Paschim Vihar, at about 11:20 PM, whereupon he went to SGM hospital. At the hospital, he had met Sh. Sunil Kumar Julka/Complainant, who was found to be undergoing medical examination vide MLC wherein it was opined to have sustained simple injury. He further deposed that on that day, the complainant had not disclosed the name of any alleged person and therefore, the said DD entry was filed vide DD No.34A dated 06.10.2005. Subsequently, he was transferred from PS Paschim Vihar and therefore, he had deposited the case file with MHC(R).
Page 12 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
13.1 In his cross-examination at the instance of the accused Shanti Swaroop, PW-7 deposed that he was posted at PS Paschim Vihar, from February, 2005 to December, 2007 and that the FIR was registered on 19.04.2007 and that he had received the case file on the same day. He deposed that after the registration of case on 19.04.2007, he/PW-7 had made his departure entry on that day itself when he went for investigation. Accused persons namely Sushil Kumar and Shanti Swaroop were called to the PS on 26.09.2007 and both the accused persons namely Sushil Kumar and Shanti Swaroop were formally arrested at PS when they had joined investigation. He deposed that he had informed the accused persons to join the investigation in the Court itself after they were granted anticipatory bail. PW7 admitted the fact that he had not conducted any enquiry in the present case prior to 19.04.2017. He further deposed that he was unable to recall the exact date on which he met the complaint immediately before 19.04.2007. He also admitted the fact that after arresting the accused namely Shanti Swaroop vide arrest memo, he had never met the accused. He deposed that he came to know regarding the accused Shanti Swaroop from the complainant on 26.09.2007, when he/PW7 went to the complainant to examine him. He deposed that prior to registration of the instant FIR on 19.04.2007, at the directions of the Court, he had met the complainant for the purpose of making enquiry in the present matter, after application under section 156(3) Cr. P.C. along- with the complaint was filed by the complainant. However, he was unable to recall the exact date on which, he had met the complainant prior to 19.04.2007. He admitted the fact that he had not received any other Page 13 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
complaint from the complainant prior to 19.04.2007. He also admitted the fact that he met the complainant, in reference with the present matter for enquiry about 4-5 months prior to 19.04.2007.
13.2 In his cross-examination at the instance of the accused Sushil Kumar, PW-7 deposed that he had first met accused namely Sushil Kumar in the Court when he and the accused Shanti Swaroop were granted anticipatory bail. PW7 admitted the fact that that he was not present during the hearing of anticipatory bail application of the accused persons nor he had filed any report to the anticipatory bail application as the report was filed by ASI Rajkumar since he was attending another matter.
14. PW8/ Sh. Devak Ram deposed that in the year 2012, he was working as Senior Scientific Officer (Documents, FSL Delhi) and that on 10.02.2010, the documents were received from PS Paschim Vihar vide their memo No. 416/SHO/PV. The questioned documents which were received were marked as Q1 to Q13 and the specimen Hindi/English signatures were marked as S1 to S12 of Sunil Kumar. He deposed that he had examined the said documents with the help of available instruments in his laboratory and gave his opinion that it was not possible to fix the authorship of questioned signatures marked to Q1 to Q13 in comparison with specimen signatures mark S1 to S10. It was also opined that however, further attempt, could be made, if admitted signatures of contemporary period of the concerned person are supplied for Page 14 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
comparison. His proved his detailed report bearing No. FLS 2010/D-0600 dated 02.01.2012 and the same is Ex.PW-8/A, bearing his signatures on each page. The said documents, which were sent to FSL are Ex.PW- 1/DA, Ex.PW-1/DB and Ex.PW-1/DC and the sample signatures of complainant Sunil Kumar (marked S1 to S12) are Ex.PW-5/B(Colly). He deposed that after examination, the case report and documents were collected by authorized messenger of PS Paschim Vihar. In his cross- examination, PW-8 admitted the fact that no further admitted signatures of the concerned person was supplied to him by the IO or the complainant. PW8 admitted the fact that in the absence of admitted signatures, he was not able to give a definite opinion in this case.
15. PW-9/HC Dalip Singh deposed that while, he was posted as a Constable, at the instructions of Inspector, he went to DDA Vikas Sadan to collect documents pertaining to the case and the same were handed over to the said Inspector on 15.01.2010. In his cross- examination, PW-9 deposed that he was posted at PS Paschim Vihar in the year 2006 to 2007 and that after 2007, he has never been posted at PS Paschim Vihar. He deposed that he had made departure entry before leaving for Vikas Sadan, however, he was not able to recall the number of the said DD entry. He deposed that the said Inspector had handed over to him, a request letter for the original documents pertaining to the case to be given to DDA, Vikas Sadan.
16. PW-10/2nd IO/Insp. Romash Chander deposed that Page 15 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
while he was posted as Inspector, Investigation at PS Paschim Vihar, he had also carried out the investigation in the present case from 03.10.2009 to 07.07.2010. He deposed that the scrutiny of the case file revealed that complainant namely Sunil Kumar was allotted a plot under housing scheme for rehabilitation of Punjab migrants during the year 2001 and that there were four persons, who were arrayed as accused persons in the present case namely Shanti Swaroop, Sushil Kumar, Baljeet Singh and Jagat Mohan. He deposed that initially, he had approached Sub-Registrar Office, Pitampura and obtained GPA and other relevant documents pertaining to disputed property No. 299, Pocket-A6, Ground Floor, Narela. Thereafter, he had approached DDA, Vikas Sadan and had requested for original allotment application form, demand cum allotment letter, possession letter, NOC etc. and that all the said documents were obtained from DDA on 15.01.2010 vide seizure memo Ex.PW-10/A. Thereafter, he had recorded the statement of Ct. Dalip and had obtained the photocopy of Civil Suit No. CS 78/08 from the complainant Sunil Kumar pertaining to the present case. The said documents are Mark-10/1 and they were seized vide seizure memo Ex.PW-1/A. He deposed that he had also recorded the statement of complainant, wherein the Complainant had told him that the accused persons had forcefully obtained his signatures and that he had never visited Sub-Registrar Office, Pitampura. Thereafter, he had obtained specimen signatures of complainant namely Sunil Kumar and all the documents were sent to FSL for expert opinion. He deposed that he had attempted to obtain admitted signatures of Sunil Kumar from Syndicate Bank, Rohini and that he had received a DD Page 16 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
application form for Rs.40,140/- dated 31.01.2001. He deposed that he had received the same from the Branch Manager and the same was seized vide memo Ex.PW-10/B. Thereafter, notice was served upon the accused persons, to examine them. Subsequently, he was transferred to IGI Airport and therefore, the case file was handed over to MHC(R). During the course of his testimony, the accused namely Jagat Mohan, who was present in the Court, was correctly identified by PW10.
17. In his cross-examination, PW-10 deposed that investigation of the case was marked to him at the direction of the then SHO, on 03.10.2009. PW10 denied the fact that no notice was ever served upon the accused as well as on the complainant by him. He deposed that the complainant had met him on 16.06.2020 and that he had recorded his statement after the complainant had handed over the copy of Civil Suit to him. He deposed that he had examined the complainant firstly on 22.10.2009 and subsequently, the accused persons were examined. He deposed that on 07.02.2010, he had went to Sub-Registrar Office, Pitampura and regarding the same, he had made the required Departure DD entry. PW10 admitted the fact that the documents seized vide seizure memo Ex.PW-1/A were photocopies and that the same does not bear the signatures of complainant or the IO/PW10. He also admitted the fact that he had not obtained certified copies of Civil Suit bearing No.78/08. In his further cross-examination, PW-10 deposed that he was not able to recall whether the documents obtained from DDA, Vikas Sadan were certified or not. He deposed that he had collected documents Page 17 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
from the Sub-Registrar Office earlier to the papers received from DDA office. PW10 categorically denied the suggestion of the accused persons to the effect that he had neither obtained the documents from the DDA Officer nor from the Sub-Registrar Office, Pitampura, as claimed. He deposed that the documents for obtaining expert opinion were sent to FSL, Rohini prior to obtaining Civil Suit documents from the complainant and that he had not received any FSL report during his investigation period as he was transferred to IGI Airport on 07.07.2010. PW-10 further deposed that he made an application before the Sub- Registrar, Pitampura for obtaining documents pertaining to the disputed property and that he had obtained the relevant documents from Sub- Registrar's Office. However, he was not aware whether the said documents were placed on record by the last IO.
18. PW-11/ SI (Retd.) Joginder Singh deposed that on 12.01.2008, while he was posted as ASI at PS Paschim Vihar, he had received the present case file for investigation, as the same was marked to him, by the then SHO. Thereafter, he had searched for the accused persons namely Baljeet and Jagat Mohan in the present case, but he was not able to trace them anywhere. In the mean-while, the accused persons filed anticipatory bail application in the Ld. Sessions Court and the said application was allowed. Thereafter, PW11 gave notice to the accused persons to join investigation and the accused persons came to PS and he interrogated them and formally arrested them in the present case vide arrest memos Ex.PW-11/A and Ex.PW-11/B and released them on bail.
Page 18 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
He deposed that on 30.01.2009, Sh. Sumit Kathuria produced certified copy of GPA of Flat No. 299 of Sector - B4, Narela, Delhi. Thereafter, he had seized the same vide seizure memo Ex.PW-4/A and had recorded the statement of witness of memos. Accused namely Jagat Mohan was correctly identified by PW11 during the course of his testimony. In his cross-examination, PW-11 deposed that he called the accused persons to the PS via telephone. PW11 was unable to recall the date when he gave notice to the accused persons to join the investigation. He admitted the fact that he had not given any notice to accused namely Sushil Kumar. He also admitted the fact that he had not enquired and recorded the statement of witnesses of GPA, which was produced by Sumit Kathuria before him. He deposed that he had made departure entry whenever he visited the places for the investigation in the present case.
19. PW-12/Insp. Anil Kumar Chauhan deposed that on 22.07.2012, while he was posted as SHO, PS Paschim Vihar, he had received the file of the present case from MHC(R) for remaining investigation. He deposed that on 27.07.2012, after perusing the file, he had given notice under section 91 Cr. P.C. to the complainant namely Sunil Kumar for providing any document like bank account etc., having his signatures of the year 2001. The said original notice is Ex.PW-12/A. He deposed that in reply to the said notice, the complainant stated that he is a poor man and he was not having any bank account and therefore, he had no such document, containing his signatures for the year 2001. Thereafter, he had prepared the challan of the present case and filed the Page 19 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
same before the Court. Despite opportunity, PW12 was not cross- examined by any of the accused persons despite opportunity.
20. Thereafter, the PE was closed after all the prosecution witnesses were examined at the request of the then Ld. APP for the State and matter was fixed for recording the statement of the accused under section 313 Cr. P.C.
21. Statement of all the accused persons was separately recorded under Section 313 Cr. P.C to which they denied the allegations and pleaded innocence. The accused namely Jagat Mohan stated that his brother/ co-accused namely Baljeet Singh (since deceased) had entered into some altercation/ fight with the complainant and in respect of the said incident, one FIR was lodged by his brother against the complainant. He stated that the instant FIR lodged by the complainant, is a counter- blast to the said case and that he had no prior acquaintance with the complainant or the other co-accused persons. At the same time, accused Sushil Kumar stated that he had met the complainant for the first time in civil court, after the complainant had filed a civil suit against him and the DDA and that he was not having any prior acquaintance with the accused Jagat Mohan @ Bittu. All the accused persons submitted that they do not wish to lead Defence evidence and therefore, DE was directed to be closed and the matter was posted for addressing Final Arguments.
22. I have heard the arguments advanced by Ld. APP for Page 20 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
the State and Ld. Respective Counsel(s) for the accused persons and perused the record carefully.
23. Ld. APP for State has contended that charges against accused persons have been established. He has argued that material on record demonstrates that the accused persons had cheated the complainant and had also caused simple hurt to the complainant. Thus, he submits that the prosecution has successfully proved the charges alleged against the accused persons and accordingly, he has prayed for the conviction of the accused persons.
24. On the other hand, Ld. Defence Counsel(s) have argued that there is neither any ocular nor any circumstantial evidence to establish charges against either of the accused persons. Ld. Counsel for the accused Sushil Kumar has further submitted that the evidence of PW4 itself reveals that the accused namely Sushil Kumar had purchased the flat in question from PW4/ Sumit Kathuria and that the complainant had himself voluntarily sold the flat in question to PW4. She has argued that the testimony of the complainant, who is the most material prosecution witnesses, itself is not consistent with hypothesis of guilt. She has further urged that prosecution has failed to lead even an iota of evidence, much less cogent, to establish the fact that the accused persons had committed the alleged offences. It has been submitted by both the Ld. Defence Counsels that all the accused persons ought to be exonerated of the charges framed against them.
Page 21 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
25. I have considered the entire evidence in the light of the aforesaid contentions.
26. In the instant case, apart from the complainant/PW1 namely Sunil Kumar and his son/PW2, the other cited prosecution witnesses were related to the investigation of the present case. Thus, the only issue which arises for consideration is that whether the testimonies of the complainant/ PW1 and of his son/PW2 are worthy of credence and can be relied upon by the prosecution for bringing home the guilt of the accused persons.
27. PW1/complainant is the informant of the case and his version is not a deviation from the facts divulged in his original complaint (Mark-A), on the basis of which the subject FIR was registered except a few minor discrepancies. Though, Ld. Counsel(s) for the accused persons have vociferously argued that there are material contradiction(s) in the testimony of the complainant/PW1 and the same goes to the root of the case, however, in my opinion, the alleged discrepancies in the testimony of PW1, cannot be considered as material discrepancy(s). The alleged discrepancies are trivial in nature and cannot be considered as material. At the same time, despite extensive cross-examination, nothing has been elicited from the mouth of PW1 by the accused persons, which could throw doubts on the credibility of PW1. In Shivappa Vs. State of Karnataka, AIR 2008 SC 1860, the Hon'ble Supreme Court of India held that the minor discrepancies or some improvements also would not Page 22 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
justify rejection of testimonies of the eye witness if they are otherwise reliable. Some discrepancies are bound to occur because of the social background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in the court. At the same time, in my opinion, the evidence of PW1 is reliable and trustworthy, especially in view of the fact that PW1, is himself, the victim of the alleged offence of cheating. At the same time, nothing came on record to shatter testimony of PW1 on material aspects.
28. However, in my opinion, despite the fact that the testimony of the complainant/PW1 has been held to be reliable, and even if, the same is taken at its face value, and is accepted as gospel truth, in such case also, the testimony of the complainant/PW1 is not sufficient to bring home the guilt of either of the accused persons qua the offence of cheating punishable under section 420 IPC.
29. Perusal of the record clearly reveals that the ingredients of an offence of cheating are not made out qua any of the accused persons. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention Page 23 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
30. Thus, a bare perusal of Section 420 IPC reveals that to constitute an offence under section 420 IPC, there should not only be 'deception', but as a consequence of such 'deception', the accused should have also dishonestly induced the person so deceived:-
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
31. In the instant case, to secure the conviction of the accused persons, qua the alleged offence of cheating punishable under section 420/34 IPC, it was thus, imperative for the prosecution to not only prove the fact that the accused persons had dishonestly induced the complainant, but the prosecution is also required to prove that as a consequence of such deception, there was 'wrongful gain' to the accused persons or 'wrongful loss' to the complainant.
32. As per the version of the complainant/PW1 himself, Page 24 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
he was made to affix his signatures and thumb/finger impressions on blank papers by the accused persons, on 09.06.2005, on the pretext that they will help the complainant/PW1 in getting the property i.e. the flat, which had already been allotted in the name of the complainant back. However, subsequently, the accused persons reneged on their promise and they failed to help the complainant get his flat back. At the same time, admittedly, it is not the case of the prosecution that the afore-mentioned signed blank stamp papers, were ever mis-used by anyone including any of the accused persons. The said signed blank stamp papers were also not made a part of the charge-sheet and placed on record. Thus, the evidence of the above stated prosecution witness i.e. PW1, merely proves the fact that the accused persons had allured him and had taken his signatures/ thumb impression on some blank papers.
33. However, as stated earlier, the mere fact that the complainant was allured or deceived would not ipso facto make the accused persons liable for the offence of cheating the complainant. In the instant case, the prosecution has not adduced any evidence to prove the fact that because of said deception, which was allegedly practiced upon the complainant by the accused persons, there occurred 'wrongful loss' to the complainant or 'wrongful gain' to either of the accused persons.
34. Thus, cumulatively seen, the prosecution has miserably failed to bring home the guilt of either of the accused persons qua the offence of cheating punishable under section 420/ 34 IPC.
Page 25 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
35. Apart from the offence of cheating, the accused persons have also been alleged to have committed the offence of causing simple hurt to the complainant and of criminally intimidating the complainant. At the outset, it is pertinent to mention that a bare perusal of the testimony of PW1/ Complainant reveals that the same is conspicuously silent with respect to the alleged incident/transaction, during which, he had suffered injury at the hands of the accused persons. Nothing has been elicited from the mouth of the complainant/PW1, during his testimony, regarding the afore-mentioned alleged incident/ transaction, that resulted in the complainant/PW1, suffering any injury on his person.
36. PW2/ son of the complainant namely Sh. Anil Kumar Julka has claimed himself to be an eye-witness to the alleged incident/ transaction, during the course of which, the complainant had suffered injury at the hands of the accused persons, on 05.10.2005. He has deposed that on the said day, upon hearing the cries of his father, he had ran towards him. He deposed that he had seen that his father/ complainant/PW1 was lying in a pool of blood and that one of the accused persons, was having a knife, which was covered with blood.
37. Perusal of the statement of PW2 (Ex. PW2/D1), recorded under section 161 Cr. P.C, during the course of the investigation, reveals that there are material improvements and inconsistencies in the testimony of PW2 and which casts a shadow of doubt over his veracity.
Page 26 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
This smoke of doubt on the credibility and veracity of PW2 gets further emboldened by the fact that the MLC of the complainant/PW1 (Mark-X), reveals that on medical examination, only one abrasion on the left lower leg of the complainant was noticed and no other injury was found on the person of the complainant/PW1, at the time of his medical examination. At the same time, the 1st IO/PW7 has deposed that on 05.10.2005, when he had reached at the hospital, after receiving DD No. 69 B PS Paschim Vihar, and met the complainant/PW1, the complainant had not disclosed the name of any of the alleged accused persons. No plausible reason could been advanced by the complainant/PW1, regarding the reason for not disclosing the names of the assailants, at the earliest available opportunity to the IO. Thus, cumulatively seen, the prosecution has not been able to prove beyond reasonable doubt that the alleged incident/ transaction, as was alleged, ever took place, on 05.10.2005, qua which the charges in respect of offences punishable under section 323/34 IPC have been framed against all the accused persons.
38. However, perusal of the testimony of the complainant/PW1 reveals that PW1 has emphatically deposed that he was threatened and abused, by the accused persons, on 09.06.2005, when he had went to the office of the accused Sushil Kumar and had refused to sign and affix his thumb and finger impressions on plain papers, as was desired by the accused persons. These facts, as have been proffered by the complainant/PW1, by way of his testimony, forms gravamen of offence of criminal intimidation, punishable under section 506 (Part-1) IPC.
Page 27 of 28 FIR No. 354/2007P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.
39. In view of the above discussion, I am of the considered opinion that prosecution has failed to prove its case against all the accused persons beyond reasonable doubt qua the offences punishable under section 420/323/34 IPC. At the same time, the prosecution has been able to bring home the guilt of all the accused persons, qua the offence of criminal intimidation punishable under section 506 (Part-1) IPC r/w Section 34 IPC, which was committed by them, in furtherance of their common intention.
40. In the absence of any cogent evidence against all the accused persons qua the offences punishable under section 420/323/34 IPC, all the three accused persons deserve to be acquitted, in respect of the offences punishable under section 420/323/34 IPC. However, all the accused persons are hereby convicted in respect of the offence punishable under section 506 (Part-1) r/w Section 34 IPC.
41. Let all the convicts be heard on the quantum of sentence.
42. Copy of judgment be given to all the convicts, free of cost and copy of judgment be placed on case file.
PUNEET Digitally signed by PUNEET NAGPAL DN: c=IN, o=Office of the District and Sessions Judge (HQs), 2.5.4.20=384cfa84306e52a2e839210ceb19057ed25b Decided on 07.06.2022 NAGPAL a2f78731ed086441776400286cb2, ou=DELHI DISTRICT COURTS,CID - 6788452, Announced in the Open Court postalCode=110052, st=Delhi, cn=PUNEET NAGPAL Date: 2022.06.07 16:22:25 +05'30' (PUNEET NAGPAL) JSCC/ASCJ/GJ/ North-West ROHINI COURTS/DELHI Page 28 of 28 FIR No. 354/2007 P.S. Paschim Vihar State Vs. Shanti Swaroop& Othrs.