Delhi District Court
State vs Smt Santosh Kumari on 19 September, 2014
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
Crl. A NO. 114/13
State
........APPELLANT
versus
Smt Santosh Kumari
w/o late Sh Ashok Kumar
r/o 13AB, Vivekanand Puri, Delhi.
.......RESPONDENT
DATE OF INSTITUTION :22.10. 2013
DATE OF JUDGMENT :. 19.09.2014
J U D G M E N T
1. The present criminal appeal u/s 378 Cr.P.C has been filed by the present appellant for setting aside the judgment dated 03.08.2013 passed by Shri Rajesh Malik, Ld MM whereby accused was acquitted for the offence u/s 420/468 IPC.
2. Brief facts leading to the present appeal are that present case relates to sale of the government vacant land between mosque and plot no 13, Vivekanand Puri, sarai Rohilla, Delhi. According to the DDA plan of Vivekanand Puri Colony, there was Cr. A NO. 114/13 Page 1 of 7 pages 2 a vacant land measuring 220 sq yards between the mosque and plot no 13. Sometimes in the year 1918 one Mela Ram installed his tandoor on that place. Thereafter his daughter in law Santosh Kumari Sachdeva opened the beauty parlor on that land and continued there till 1985. Thereafter, she sold the said land by way of General Power of Attorney and Will to Tara Chand and Prem Chand Jain vide GPA and will dated 28.09.85. Thereafter the said plot was sold to other subsequent purchaser. Smt Santosh Kumari came into possession of the land through her father in law and her husband. She came under scanner when she sold the plot in question to the accused P C Jain and Tara Chand through GPA and they also sold the plot to the accused persons. On the complaint of Deputy Commissioner of Police, present FIR was registered against the accused persons. Evidence was led by the parties. Vide order dated 13/02/2002 other accused persons except the respondent were discharged by Ld Trial Court. After completion of trial, vide impugned order, Ld Trial Court has acquitted the respondent, hence present appeal is preferred by the State against order dated 03/08/2013.
3. It is stated by the appellant that order of Ld Trial court is liable to be set aside on following grounds:
a) That Ld Trial Court has failed to appreciate the fact that Cr. A NO. 114/13 Page 2 of 7 pages 3 prosecution had examined 8 witness and all of them have supported the case of the prosecution.
b) That Ld Trial Court did not consider the fact that wrongful loss to the State was caused in the present case. Ld Trial Court did not consider the fact that accused has wrongfully gained in this transaction and case falls u/s 420 IPC.
c) That Ld Trial Court failed to appreciate the fact that accused had admitted the receipt towards sale consideration of the property in question, in her statement u/s 313 Cr.P.C.
d) That Ld Trial Court failed to appreciate the fact that said land was not transferred in proper way as accused was not having any proper authority to transfer the same.
with these and similar grounds appellant has prayed for setting aside the impugned order.
4. I have heard arguments from Ld. Addl. P.P. for the State as well as from Sh P. C. Sharma, Ld counsel for respondents. In support of his arguments, Ld counsel for respondent has relied upon various authorities and some of them are mentioned as below
1. 2009 (3) JCC 2356
2. 2009 (3) JCC 2362
3. 2012 Cr. L. J 2179
4. 2012 Cr.L.J182 Cr. A NO. 114/13 Page 3 of 7 pages 4
5. I have considered the arguments advanced by Ld counsel for the parties, gone through the judgments relied upon by Ld counsel for respondent and considered the trial court record.
6. Present appeal has been preferred by the State against the judgment dated 03.08.2013 passed by Sh Rajesh Malik, Ld MM whereby accused/respondent herein was acquitted for the offences u/s 468/420 IPC.
7. The main contention of the State is that Ld Trial Court has failed to appreciate the evidence led by the prosecution and has not been able to consider that prosecution witnesses have corroborated their testimonies and no material contradiction appeared in their statements. It is also the contention of the State that judgment of Ld Trial Court is based on the judgment of Mohd Ibrahim and ors vs State of Bihar and Another, Crl. Appeal No. 1695 of 2009 passed by Hon'ble Supreme Court of India. It is the contention of the accused/respondent herein that no deception was caused to DCP, who is complainant in the present case and no forged documents have been prepared by accused/respondent herein, therefore Ld Trial Court has rightly acquitted the respondent and appeal should be dismissed.
8. On careful perusal of the trial court record, it is clear that after framing of charge, prosecution has led its evidence and as many as 8 witnesses were examined by the prosecution Cr. A NO. 114/13 Page 4 of 7 pages 5 including ACP Ranvir Singh, who is IO of the case. After recording of statement of accused u/s 313 Cr.P.C, opportunity was given to accused/respondent herein to lead defence evidence. She had examined one witness in her defence. It is however strange to note that in the impugned judgment, passed by Ld Trial Court on 03.08.2013, Ld Trial Court has not considered the testimonies made in evidence by prosecution or by the accused. After considering the charge framed against accused/respondent herein, Ld Trial Court has proceeded to discuss the provisions of section 468 IPC and the requirement of proving section 468 IPC and section 420 IPC. After discussing the provisions of section 468 IPC and section 420 IPC, Ld Trial Court has directly come to the conclusion that in view of the requirement laid down for proving the provisions, no case is made out against the accused, hence accused is entitled to acquittal.
9. From the impugned judgment, it appears that there is absolute "non appreciation" of evidence on the part of Ld Trial Court. Ld Trial Court has not considered the evidence led by the prosecution, whether the prosecution has been able to prove the ingredients of section 420 IPC and section 468 IPC or not or whether DW1 has been able to prove the defence of the accused/respondent herein. Rather after considering the Cr. A NO. 114/13 Page 5 of 7 pages 6 judgment relied upon by Ld Trial Court in impugned judgment , ie Mohd Ibrahim vs State of Bihar passed by Hon'ble Supreme Court, it is clear that Ld Trial Court has verbatim reproduced the judgment passed by Hon'ble Supreme Court in Mohd Ibrahim's case, without even mentioning that Ld Trial Court was referring to the judgment of Mohd Ibrahim's case.
10. After careful perusal of impugned judgment, it is clear that from, para 6 onwards, the impugned judgment has been verbatim copied from the judgment of Hon'ble Supreme Court in Mohd Ibrahim's case starting from last sub para of para 14 of the case of Mohd Ibrahim with only minor changes in respect to the present case. Ld Trial Court has no where mentioned in entire impugned judgment that he is referring to the observations made by Hon'ble Supreme Court in Mohd Ibrahim's case. Rather reading of impugned judgment gives impression that the views expressed in the impugned judgment from para 6 onwards are views of Ld Trial Court, though these have been copied from the judgment of Hon'ble Supreme Court without applying the principles to the facts of present case.
11. In view of my above discussion, I am of the opinion that Ld Trial Court has failed to apply judicial mind to the facts of the case. Ld Trial Court has not appreciated the evidence led by the prosecution and defence and has also verbatim reproduced the Cr. A NO. 114/13 Page 6 of 7 pages 7 judgment of Mohd Ibrahim's case passed by Hon'ble Supreme Court. Therefore, in the absence of application of judicial mind, impugned judgment of Ld Trial Court is liable to be set aside. Matter is remanded back to Ld Trial Court with the directions to appreciate the evidence and pass the judgment on the merits of the case applying principles of law on the facts in hand.
12. In view of above observations, the appeal as filed by the appellant is allowed. Judgment dated 03.08.2013 is set aside. Case is remanded back to Ld Trial Court for further appreciation of evidence and considering the law and its applicability on the facts proved. Acquittal order of respondent is set aside. Parties are directed to appear before Ld Trial Court on 27/09/2014.
13. Trial court record be sent back with the copy of the order.
14. File of appeal be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 19th September, 2014.
( SHAIL JAIN )
ADDL. SESSIONS JUDGE (CENTRAL)
DELHI
Cr. A NO. 114/13 Page 7 of 7 pages