Punjab-Haryana High Court
Hukam Chand Gupta vs State Of Haryana And Another on 1 April, 2010
Author: Sabina
Bench: Sabina
Criminal Revision No. 1088 of 2008(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Revision No. 1088 of 2008 (O&M)
Date of Decision: April 01, 2010
Hukam Chand Gupta ...........Petitioner
Versus
State of Haryana and another ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Naveen S. Bhardwaj, Amicus curiae for the petitioner.
Mr.H.S.Benniwal, Deputy Advocate General, Haryana
Mr.Rajinder Goyal, Advocate for respondents No.2 and 3
Sabina, J.
Respondent-accused Dinesh @ Vinod and Renu Bala @ Ritu were tried for an offence under Section 419 of the Indian Penal Code (`IPC' for short) in FIR No. 184 dated 22.4.2001 registered at Police Station City Hisar. Vide judgment dated 12.2.2008, they were acquitted of the charge framed against them by the Judicial Magistrate Ist Class Hisar. Aggrieved by the same, petitioner/complainant has filed the present revision petition.
The case of the prosecution, as noticed by the trial Court in paras 2 and 4 of its judgment, is reproduced here in below:- Criminal Revision No. 1088 of 2008(O&M) 2
"The brief facts of the prosecution case are that the present case was registered on 22.4.2001 on the statement of Hukam Chand Gupta, complainant. It was mentioned in the application that his son Rajesh Gupta, was married to accused Renu Bala on 27.6.1997. One child Vishu was also born out of the wedlock on 29.4.1998. However, his son Rajesh Kumar had died on 6.7.1998 in Karnal in an accident. Renu Bala has also filed a civil suit no. 132-II/98 in the Court of Senior Judge, Kaithal for taking the custody of the child by Court the child was handed over to Renu Bala accused. After that Renu Bala had married with accused Dinesh Kumar on 4.2.1999. This second marriage was solemnized in order to misappropriate the claim, which was lying deposited in the FDR in the name of minor child. Renu Bala has also given birth to another child on 11.2.2001 and she has also got written wrong name of the parents in the hospital. Both the accused want to grab the amount of the earlier child Vishu. On these broad allegations, the present case FIR was registered against the accused. The matter was duly investigated. During investigation, the statements of witnesses under Section 161 Cr.P.C. were recorded. The accused were arrested. On completion of investigation proceedings, the accused were challaned in due course to face trial before the Court.
3. Copies of challan were supplied to the accused free of cost as envisaged under Section 207 of Criminal Procedure Code.
4. After taking the cognizance of the offence, the accused were charge-sheeted under Section 419 of Indian Penal Code vide order Criminal Revision No. 1088 of 2008(O&M) 3 dated 24.4.2002 passed by the then JMIC, Hisar to which accused pleaded not guilty and claimed trial."
Learned counsel for the petitioner has submitted that the charge in this case framed against respondents No. 2 and 3 under Section 419 Cr.P.C. is that Renu Bala had delivered a male child out of her wedlock with Dinesh but she had entered her name as Ritu wife of Vinod instead of Renu Bala wife of Dinesh. The said act had been done to grab the motor accident claim of the grandson of complainant and to deprive the complainant the custody of the said child. The factum of marriage of respondent-Renu Bala with respondent Dinesh had duly been proved before the trial Court. It had also been established that Renu Bala had delivered a child in the name of Ritu wife of Vinod instead of Renu Bala wife of Dinesh.
Learned counsel for respondents No. 2 and 3, on the other hand, has submitted that the factum of marriage of respondents No. 2 and 3 had duly been disclosed in the custody proceedings. The claim awarded to the child of Renu Bala and son of the petitioner would be disbursed to the child on his attaining the age of majority.
Learned trial Court in the impugned judgment has held as under:-
"13.In this way, from the evidence led by the prosecution, it stands established that Renu Bala was married with Rajesh Kumar Gupta son of complainant Hukamchand Gupta and she has male child namely Vishu from the said wedlock and her first husband namely Rajesh Kumar Gupta has expired in an accident tribunal. It also stands established that Renu Bala has performed the second Criminal Revision No. 1088 of 2008(O&M) 4 marriage with accused Dinesh Kumar and has also given birth to male child from her wedlock with accused Dinesh Kumar, in the Sevak Sabha Hospital, Hisar but in the record of the Sevak Sabha Hospital, she has got recorded her name as Ritu instead of Renu Bala and has shown herself as wife of Vinod Kumar instead of Dinesh Kumar. In other words, it can be said that Renu Bala has got admitted herself in the Sevak Sabha Hospital for delivering a child by pretending herself as Ritu wife of Vinod instead of Dinesh Kumar. In other words, it can be said that Renu Bala has got admitted herself in the Sevak Sabha Hospital for delivering a child by pretending herself as Ritu wife of Vinod instead of Dinesh. It is true that giving out a fictitious name amounts to personation but mere personation is not an offence under the Indian Penal Code, a person cannot be convicted under Section 419 of Indian Penal Code merely because he/she secured his/her admission in the hospital by giving out his/her false name as well as false name of her husband unless it is established that she would not have been so admitted had he/she disclosed his correct name.
14.The important question of law, however,involved in this case is whether the accused can be said to have committed an offence punishable under Section 419 of Indian Penal Code because she got herself enrolled under the assumed name as Ritu wife of Vinod by suppressing her true name Renu Bala as well as true name of her second husband Dinesh. There can be no doubt, this amounts to personation within the meaning of Section 416 of Criminal Revision No. 1088 of 2008(O&M) 5 Indian Penal Code because the explanation below the section makes it clear that offence is committed whether the individual personated is a real or imaginary person. It is, therefore, clear that giving out a fictitious name also amounts to personation but mere personation is not an offence under the Indian Penal Code.
15.The offence of cheating by personation has been made punishable under Section 49 of Indian Penal Code. Accused cannot be convicted under the said section unless it is established that he/she cheated someone by personation.
16.In order to establish cheating which is essential ingredient of the offence, it was necessary for the prosecution to prove that accused Renu Bala secured her admission in the Sevak Sabha Hospital by giving out her false name Ritu as well as false name of her husband as Vinod and she would not have been admitted in the Sevak Sabha Hosptial if she has given out her correct name as Renu wife of Dinesh. There is, however, no evidence on this point. There is nothing either in the statement of PW3 complainant Hukamchand or in the evidence of PW10 (inadvertently numbered as PW9), Dr.Sucheta Gupta, Medical Officer, Sevak Sabha Hospital, that accused Renu Bala would not have been admitted in the hospital for delivering a child if she had given out her name as Renu Bala wife of Dinesh. In absence of satisfactory evidence on this point prosecution has failed to establish that accused Renu Bala accured her admission in the Sevak Sabha Hosptial for delivering a child by giving a false name and thus cheated the authorities concerned. By giving Criminal Revision No. 1088 of 2008(O&M) 6 wrong name accused may have committed and impropriety but they cannot be held liable for commission of any offence.
17.In these circumstances in absence of anything to show that by suppressing the identity, the accused has induced either the complainant or the authorities concerned to admit her in the hospital the offence of cheating by personation is not made against the accused. In other words, it can be said that prosecution has failed to prove the offence of cheating by personation against the accused. "
It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional Jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case,however, does not warrant a retrial.
A finding of acquittal, as per Section 401(3) of the Code of Criminal Procedure, cannot be converted into a finding of conviction by this Court in revision.
The reasons given by the trial Court while acquitting respondents No.2 and 3 are sound reasons. A perusal of the judgment passed by the trial Court in the custody case Petition No.132/1998 decided on 19.11.2001 ( placed on record as Mark `A' during the course of arguments) reveals that Renu Bala in her statement had duly stated that she had got remarried with Dinesh Kumar and was residing at Hisar. The Criminal Revision No. 1088 of 2008(O&M) 7 custody of the child-Vishu was given to Renu Bala. The said judgment was upheld by this Court in FAO No. 4370 of 2001 decided on 27.1.2003. A perusal of the copy of the order placed on record, during the course of arguments as Mark `B', reveals that it was duly mentioned, during the course of arguments that Renu Bala had got remarried on 4.2.1999. The child, who was present in the Court was asked as to whether he wanted to live with his mother or not and the child had stated that he wanted to live with his mother.
In these circumstances, the argument raised by the learned counsel for the petitioner that respondent-Renu Bala wanted to usurp the motor accident claim money by personating is without any basis. The amount allowed to the child Vishu in the motor accident claim case will be withdrawn by the child on his attaining the age of majority. Moreover, the factum of second marriage of respondent No.3 with respondent No.2 had duly been established in the custody case and, hence, no loss had occurred to the petitioner on this account.
The impugned order does not warrant interference. Accordingly, this revision petition is dismissed.
(Sabina) Judge April 01, 2010 arya