Delhi District Court
S.C. No. 32/12 Fir No. 20/09 State vs . Gulfam Ahmad Etc. 1 /66 on 22 March, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.32/12
(Unique I.D. No.02403R0124872009)
FIR No.20/09
PS:Crime Branch
U/S: 302/364/201/120B/420/467/471/34 IPC
State
versus
(1) Gulfam Ahmed
S/o Mahmood Ahmed
R/o H. No. 427, Sant Nagar,
East of Kailash, New Delhi.
(2) Niti Sarin
D/o Surjit Singh Marwah
R/o H. No. B-76, Ist Floor,
East of Kailash, New Delhi.
(3) Ran Singh
S/o Nathu Singh
R/o Village Mavi Meera, Tehsil Sardana,
District Meerut, UP.
(4) Mohd. Arif
S/o Mohd. Sharif
R/o Village Mavi Meera, Tehsil Sardana,
District Meerut, UP.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 1 /66
(5) J. Chawla
S/o M.L. Chawla
R/o H. No. 11B, Pusa Road,
Rajendra Nagar, New Delhi.
Date of initial institution :10.05.2009
Date of institution in this court :02.11.2012
Date of Pronouncement Order :22.03.2013
JUDGMENT
1. On 18.05.2010, two sets of charges were framed. In the first set of charges, all the accused persons except accused J. Chawla were charged under Section 120B, 302 IPC read with Section 120B and 201 read with Section 120B IPC. In the second set of charges, accused Gulfam Ahmad, Niti Sareen and J. Chawla were charged under Section 120B; 467/420/471 read with Section 120B IPC and 201 read with Section 120B IPC. The first set of charges relates to hatching of a criminal conspiracy for the purpose of murder of Surjit Singh Marwah whereas the second set of charges relate to criminal conspiracy and the subsequent acts for the purpose of misappropriation of the property of S.S. Marwah at Kailash Hills, S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 2 /66 East of Kailash, New Delhi.
2. The prosecution case, as per the charge-sheet in brief is that Niti Sareen is the only child of S.S. Marwah. He had bequeathed his property in favour of his grand children i.e children of Niti Sareen. Sunil Sharma - husband of Niti Sareen mysteriously disappeared in the year 2004. Thereafter, she came in contact with Gulfam Ahmad and hatched a conspiracy to usurp the property of S.S. Marwah by killing him. Gulfam Ahmad included accused Ran Singh, Mohd. Aarif and Rohtas @ Pappu in the plan of murder. According to prosecution, all these persons killed S.S. Marwah on 16.5.2006 and disposed of his body in Gang Nahar, Meerut and thereafter accused Niti Sareen lodged a missing report on 18.05.2006 at P.P. Garhi, P.S. Lajpat Nagar vide DD No. 19 wherein she stated that her father S.S. Marwah had gone to Chandini Chowk but did not come back. Police made efforts to trace him by publishing his photographs but to no avail. On 06.02.2009, a secret informer informed the police that S.S. Marwah was murdered on 16.05.2006 by the aforesaid accused persons. On S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 3 /66 this information, FIR 20/09 was registered on 08.02.2009 u/s 365/120B IPC and thereafter accused Gulfam Ahmad and Niti Sareen were arrested on 09.02.2009 while accused Ran Singh, Pappu and Mohd. Aarif were arrested on 11.02.2009. Disclosures were made about the involvement of J. Chawla, who is stated to have prepared a forged General Power of Attorney dated 21.03.2001 in the name of Niti Sareen and on the basis of the said forged GPA, Niti Sareen executed a Sale-deed in favour of Gulfam Ahmad and in turn, Gulfam Ahmad entered into a collaboration agreement with accused J. Chawla whereafter the building was demolished and after fresh construction, the property was sold floorwise and thereafter the said forged GPA was destructed. J. Chawla was arrested on 20.02.2009. After completion of investigation, charge-sheet was filed u/s 302/364/201/120-B/420/ 467/471/34 IPC.
3. Since the offence under Section 302 IPC is exclusively triable by the Sessions Court, the case was committed to this court. Thereafter, the aforesaid charges were framed against the accused S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 4 /66 persons, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined 32 witnesses in support of its case.
4.1 PW-1 Ravi Goel is a friend of accused Gulfam Ahmad, who deposed that on 16.05.2006, his friend Gulfam Ahmad had taken away his Car No. DL 3C 6510 for attending a party at about 7:00/8:00 p.m and told that he would return the car next day or a day after. At about 10:30 a.m after two days , he got the keys of his car from the shop in front of his own shop. He also stated that police had shown him a GPA which purportedly bore his signatures but the witness stated that signatures on that GPA were not his. He was shown a photocopy of GPA dated 21.03.2001 Ex. PW1/A but stated that the signatures are not his. In his cross-examination, he stated that police had never taken his specimen signatures nor he was shown the original GPA.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 5 /66 4.2 PW-2 Rakesh Kumar was produced by the prosecution, who had allegedly seen a dead body floating in Gang Nahar in May 2006. However, he deposed that police had made inquiries from him as to whether he had seen a dead body but he had not seen any dead body. He was declared hostile and was cross-examined by the Ld. Addl.PP but to no avail.
4.3 PW-3 Ct. Sanjay is a witness of arrest of accused Mohd. Aarif and Ran Singh which he proved as Ex.PW3/A & Ex.PW3/D respectively.
4.4 PW-4 Vinod Kumar was also produced by the prosecution, who had also allegedly seen a dead body floating in Gang Nahar in May 2006. However, he deposed that police had made inquiries from him as to whether he had seen a dead body but he had not seen any dead body. He was also declared hostile and was cross- examined by the Ld. Addl.PP but to no avail.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 6 /66 4.5 PW-5 HC Harwinder deposed that on 08.02.2009 SI Sukhbir Malik gave him a Tehrir which he took to Crime Branch, Nehru Place and got the FIR No. 20/09 registered under Section 365/120B IPC and thereafter he handed over the copy of the FIR and original Tehrir to SI Sukhbir Malik.
4.6 PW-6 HC Baljor Singh deposed about receiving DD No. 19 at 8:50 p.m on 18.05.2006 at Police Post Garhi, P.S. Lajpat Nagar regarding missing of S.S. Marwah, for necessary action. He stated that he reached House No. 204, Kailash Hills, East of Kailash, New Delhi, and met Niti Sareen and obtained her statement Ex. PW6/A. He informed the Missing Persons Squad and also got the photograph published in the newspaper vide his application dated 22.05.2006 which he proved as Ex.PW6/B. He proved the copy of the missing form as Ex.PW6/C. He also stated that later on inquiries were made from him by SI Sukhbir Malik of Crime Branch and he informed him about these facts and also provided him the documents.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 7 /66 4.7 PW-7 HC Chand Ram is the Malkhana Constable and he deposed regarding the deposit of various case properties on different dates in the Malkhana.
4.8 PW-8 Rajinder Singh Solanki is Record Clerk from Transport Authority, Shekh Sarai and he deposed that the Ford Icon Car No. DL 3 CV 6510 was initially registered in the year 2002 in the name of Shyam Kumar and on 02.02.2006, it was registered in the name of Ravi Goel and further it was registered in the name of Vishal Sharma on 13.12.2006.
4.9 PW-9 Mohit Kumar was examined by the prosecution to prove that he had prepared the fake GPA of S.S. Marwah in favour of Niti Sareen and at that time Gulfam Ahmad, Niti Sarin and J. Chawla had come to his office. However, the witness did not support the prosecution case to that extent and deposed that he does typing work in R.K. Documents at R-16, Kalkaji, New Delhi. He stated that in the year 2006, he was doing typing work in his shop when one Niti Sareen and Gulfam Ahmad came to his shop for S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 8 /66 getting some documents typed as sample. They wanted to get a sample of Attorney and he gave them a print of a sample Attorney on a plain paper as the particulars to be filled in the Attorney were not provided. He stated that he was not shown any documents or paper by them. He further stated that he was called in SOS Branch at Sunlight Colony by Delhi Police Officials where he was shown the photographs of Gulfam and Niti and he identified both of them, who had got a sample Attorney prepared from him which was taken by them. He identified Gulfam and Niti in the court. On being shown the copy of Attorney Ex.PW1/A, he stated that the contents of that Attorney were the same. This witness was cross- examined by the Prosecutor wherein he stated that he does not know any J. Chawla. He also denied that Gulfam Ahmad, Niti Sarin and J. Chawla had come to him for getting prepapred a GPA of S.S. Marwah in favour of Niti Sarin and he had prepapred the GPA on a stamp paper given by J. Chalwla. He also denied that J. Chawla had told him to put the date as 21.03.2001 on sample GPA. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 9 /66 4.10 PW-10 Hemant Kwatara was the eye witness of the prosecution, however he did not support the prosecution. He stated that in February, 2009, he was called by S.I. Malik of Delhi Police at Sunlight Colony and he inquired from him about Mohd. Gulfam to which he replied that he knew Gulfam as resident of the same locality. He was asked to write a statement which he did and put his signatures on it. He identified accused Gulfam and accused Niti Sareen as her car finance case had come to him. This witness was cross-examined by the Ld. Addl. PP. He denied the suggestion that on the night of 16/17.05.2006, he had seen accused Gulfam, Mohd. Aarif, Pappu and Ran Singh in a car Ford Icon No. DL 3 CV 6510 and they had gone to the house of Niti Sareen where he heard the noise in the room and saw that S.S. Marwah, father of Niti Sareen was given beatings by use of legs and fist blows and Mohd. Aarif had put the pillow on the face of S.S. Marwah while accused Gulfam and Pappu caught hold his hands while Ran Singh had pressed the neck of S.S. Marwah and at that time Niti Sareen was present in the room and was watching it. He denied that Niti gave a white sheet in which the dead body was wrapped. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 10 /66 4.11 PW-11 Shifa Ur Rehman stated that he does construction business in Delhi and Aligarh. In the year 2006, he came in contact with one dealer Wajid of Okhla and one Vinod of East of Kailash, for constructing Property No. 204 in Kailash Hills, East of Kailash; they got introduced him with one Gulfam as owner of the property; an agreement of collaboration was executed between him and Gulfam regarding construction of house No. 204 on the said plot for construction of basement, upper ground floor, first floor and second floor. He stated that the cost of construction was to be borne by him (witness) and he would also pay Rs.20 lacs to Gulfam and against this, ownership of second floor was to be given to him. He stated that the collaboration agreement was neither notarised nor registered. He also stated that he was shown a registered sale-deed of the said plot in the name of Gulfam. After about eight months, he told Gulfam that he could not construct the building and demanded the amount of Rs.15 lacs back which he had given to Gulfam at the time of execution of the agreement. Gulfam then entered into another agreement regarding the same property with another builder Chawla. He identified accused S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 11 /66 Gulfam and accused J. Chawla in the court. A meeting was arranged between him and Chawla and Chawla gave him Rs.12 lacs by way of self - bearer cheques. He also signed a declaration Ex.PW14/A and he executed the receipt of the said cheques Ex.PW14/B. This witness was also cross-examined by the Ld. Addl. PP wherein he stated that he never told the police that on inquiries by him from Gulfam regarding Niti Sareen and her father to which Gulfam replied that he was no more in the world and has died and due to this reason he became suspicious and refused to construct the building. He also denied to have told the police that J. Chawla had told him that he had got executed first sale-deed of Niti to Gulfam and the GPA was also got prepared by him and that he is in the business of buying disputed property as lot of money was obtained in such transactions and he was facing about 12 cases. In his cross-examination, he stated that he could not honour the agreement on account of financial crisis. In the cross- examination of accused J. Chawla, he stated that entire building had been demolished by accused Gulfam before the agreement was executed with accused Chawla.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 12 /66 4.12 PW-12 Lady Ct. Anju stated that on 09.02.2009, she joined the investigation with SI Sukhbir Malik, SI Ravinder Tewatia and Ct. Suresh and went to East of Kailash where Niti Sareen and Gulfam met them; both of them were brought to office at Sunlight Colony; she identified her signatures on arrest memo of accused Niti Sareen Ex.PW12/A and on her personal search Ex.PW12/B. She further stated that both the accused took them to place of occurrence at East of Kailash; she also proved the disclosure statement of accused Niti Sareen as Ex.PW12/C. In her cross- examination, she could not tell whether the accused persons were placed under arrest at the said house or in the office; she could not tell who were the persons present in the house when the accused persons were found there.
4.13 PW-13 Amit Sharma is Manager of Axis Bank, who brought the records of A/c No. 268010100002301 for the period of 27.09.2006 to 28.02.2007 of accused J. Chawla. He proved the same as Ex.PW13/A. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 13 /66 4.14 PW-14 Sh. R.N. Nawani was the Sub-Registrar in August 2006. He stated that the sale-deed dated 25.08.2006 executed by Niti Sarin, as Attorney of S.S. Marwah, in favour of Gulfam Ahmad bears his signatures as Sub-Registrar. He proved the said sale-deed Ex.PW14/A. He stated that at the time of registration, it is checked as to whether the Attorney Holder had declared that at the time of the executing the document, the said person, who has authorised - called as Principal is alive and that the GPA executed by him, has not been revoked or canclled till date. He also proved another sale-deed dated 08.06.2007 executed by Gulfam Ahmad in favour of Niti Sarin as Ex.PW14/B. In his cross-examination conducted on behalf of accused Niti Sarin, he stated that though he had seen the Attorney at the time of the execution of the sale-deed Ex.PW14/A but he did not retain the copy of the said Attorney as it was not required according to the procedure. He further stated that he had not gone into the issue, if the Power of Attorney was genuine or forged. He stated that as per the rules, they retained only copy of the registered documents. He denied the suggestion that neither the Power of Attorney was produced before him nor it S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 14 /66 was seen by him.
4.15 PW-15 Sh. R.K. Singh is Manager of Bank of India, who proved the bank account statement (A/c No.602110110000277) of accused Gulfam Ahmad from 20.12.2005 to 06.02.2009 as Ex.PW15/A. 4.16 Similarly PW-16 Krishan Kumar, Record Keeper from Punjab National Bank, Branch Paschim Vihar, proved the bank statement of accused J. Chawla of A/c No. 4081000100048154 for the period 05.09.2006 to 07.03.2009 as Ex.PW16/A. 4.17 PW-17 Ct. Vikal Singh proved the arrest of accused J. Chawla on 20.02.2008 Ex.PW9/B, who was arrested on the identification of Mohit (PW-9). He also stated that accused J. Chawla had produced some documents from his Godrej Almirah which was seized by the IO vide seizure memo Ex. PW17/A. He further stated that on 23.02.2009 when accused J. Chawla was on police remand, he had disclosed to the IO that the original GPA S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 15 /66 was destroyed by him after coming to note regarding arrest of accused Niti Sarin and Gulfam. He proved the disclosure statement of accused J. Chawla as Ex.PW17/B to this effect. In his cross-examination, he stated that except Mohit, no other public witness or neighbour was joined in the proceedings of the arrest of accused J. Chawla. He also stated that they remained in the house of accused J. Chawla for about two hours and during this time arrest memo, personal search memo and seizure memo of documents were prepared at his house.
4.18 PW-18 Ct. Suresh Kumar proved the arrest of accused Gulfam as Ex.PW18/A, his personal search as Ex.PW18/B and his disclosure statement as Ex.PW18/C on 09.02.2009. He further stated that on 20.02.2009, he had also joined the investigation at the time of the arrest of the accused J. Chawla and stated that Ex.PW17/A i.e seizure memo of the documents (Ex.PW17/A), arrest memo (Ex.PW9/B) of accused J. Chawla, personal search (Ex.PW9/C) of accused J. Chawla and disclosure statement (Ex.PW9/D), they all bear his signatures.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 16 /66 4.19 PW-19 Anil stated that he is doing property dealing business; he had bought first and second floor of House No. 204, Kailash Hills from J. Chawla for a sum of Rs.30 lacs on 16.10.2007 in the name of his mother Gulab Devi Narang by way of registered sale-deed. He proved the sale-deed Ex. PW19/A. He stated that in March-April 2008, accused J. Chawla came to him and said that there is some dispute regarding title to the property and offered to return back the money and he gave him Rs.35 lacs and got executed the sale-deed on 09.04.2008 of first and second floor of House No. 204, Kailash Hills in the name of one of his relative Sonia Aggarwal. In his cross-examination for accused J. Chawla, he denied the suggestion that in March-April 2008, accused J. Chawla had not come to him that there was some dispute regarding the title of the property and offered him to buy back the property and to return the money.
4.20 PW-20 HC Narender stated that on 04.05.2009, he alongwith SI Sukhbir Malik had gone to Punjab National Bank, East of Kailash Branch, where Naresh Bhatia, Senior Manager S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 17 /66 handed over account opening form of A/c No. 5772 of S.S. Marwah, Sudesh Marwah and Niti Sarin. He proved the seizure memo of these documents as Ex. PW20/A. 4.21 PW-21 SI Praveen Kumar stated that in May 2006, he was posted as Incharge Police Post Garhi, P.S. Lajpat Nagar. He stated that on 18.05.2006, DD No. 19 was lodged regarding missing of S.S. Marwah that he had gone to Chandini Chowk and did not return. He stated that the said DD was marked to HC Baljor for necessary action; later on, Niti Sarin D/o S.S. Marwah had come to Police Post and informed aboutnthe missing of her father and her statement was recorded by HC Baljor. He stated that on local inquiry, he came to know that husband of Niti Sarin had also gone missing and it was suspected that she may be involved in missing of S.S. Marwah and that she did not cooperate in the inquiry. He obtained the call detail records of the mobile phone of S.S. Marwah which he proved as Ex.PW21/J. Copy of DD No. 19 was proved as Ex.PW21/K. The missing information published in newspaper was proved as Ex.PW21/G and PW21/H. He further stated that in S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 18 /66 the year 2009, SI Sukhbir had made inquiries from him and he had given his statement to SI Sukhbir. He identified accused Niti Sarin in the court. In his cross-examination, he stated that he did not record statement of any in-laws of Niti Sarin or made inquiries from them.
4.22 PW-22 Radhey Shyam Sharma is Record Keeper, Sub- Registrar Office V, Mehrauli, who produced the record of sale-deed dated 25.08.2006 (Ex.PW14/A) executed by Niti Sarin as Attorney of S.S. Marwah, in favour of Gulfam Ahmad. He also produced record of sale-deed dated 29.10.2007 (Ex.PW9/A) executed by J. Chawla in favour of G.D. Narang; record of sale-deed dated 08.06.2007 (Ex.PW14/B) executed by Gulfam in favour of Niti Sarin; record of sale-deed dated 08.06.2007 (Ex.PW22/A) executed by Gulfam Ahmad in favour of J. Chawla; record of sale-deed dated 30.07.2007 (Ex.PW22/B) executed by Niti Sarin in favour of Sonika Chopra (wife of accused J. Chawla) and record of sale-deed dated 09.04.2008 (Ex.PW22/C) executed by G.D. Narang in favour of Sonia Aggarwal.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 19 /66 4.23 PW-23 Parag Gupta is a Press-Reporter of Newspaper 'Amar Ujala' and stated that in the year 2006, an information was received in their office that a dead body was lying in Village Ratna Garhi near Naanu Pul, Gang Nehar, Meerut but when he went to that place, he did not find any dead body there. On the basis of that information, a news item was published in the newspaper dated 18.05.2006 Ex.PW23/A. 4.24 PW-24 HC Jaipal Singh proved recording of FIR No. 20/09 under Section 365/120B IPC on 08.02.2009 Ex.PW24/A. 4.25 PW-25 Rakesh Sharma is Record Keeper of 'Amar Ujala' Newspaper and he stated that on 18.02.2009, he had given the copy of newspaper 'Amar Ujala' dated 18.05.2006.
4.26 PW-26 Vishal Sharma is the Superdar of 'Ford Icon' car No. DL 3CV 6510. He proved his signatures on the seizure memo of the car as Ex.PW26/A. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 20 /66 4.27 PW-27 Sirajudeen is a witness to the sale-deed executed by Niti Sarin in favour of Gulfam Ahmad on 25.08.2006 Ex.PW14/A. He stated that Gulfam was running a godown of scrap at Sirajudeen's uncle - Badrudeen place at Savitri Nagar; Gulfam had borrowed money from several persons in the market regarding which Badrudeen made inquiry from Gulfam at which Gulfam stated that he wanted to buy a house at Kailash Hills. He stated that accused Gulfam made a request him to become a witness to the transaction and he signed the sale-deed as witness. He identified his signatures on the sale-deed Ex. PW14/A. He stated that accused Gulfam had made payment of amount which was in two bags and the currency notes were in the denomination of Rs. 500/-. He stated that he did not see anybody else except accused Niti Sarin and Gulfam at the Sub Registrar Office. This witness was cross-examined by the Ld. Addl. PP wherein he denied the suggestion that no money was given by Gulfam to Niti in the office of Sub Registrar. He also stated that he does not know any person by the name of J. Chawla to be present in the office of Sub Registrar on that day. He also denied the suggestion that accused S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 21 /66 Niti Sarin had come out of the Registrar's Office in a perplexed condition and had informed that Registrar was making inquiry about her father at which J. Chawla told not to be afraid of anything as he had got made GPA and he will not let this sale-deed stop from being registered. In his cross-examination on behalf of accused Niti Sarin, he stated that he did not tell the police that Gulfam Ahmad had borrowed money from the market and on inquiry made by his uncle, he came to know that Gulfam was going to purchase a property in Kailash Hills. He stated that he did not tell this to police as it was not asked from him by police. He stated that he had told the police that there were two briefcases and one of the brief-case had currency notes of Rs.500/- denomination. However, this part of his statement was not there in his statement recorded under Section 161 Cr.P.C which was Ex.PW27/A. He also stated that he did not tell the police about making of payment as police did not ask from him about it. This too was not recorded in his statement recorded under Section 161 Cr.P.C. An interesting suggestion was put to him on behalf of accused Niti Sarin that he never visited the Office of Sub Registrar and he denied the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 22 /66 suggestion.
4.28 PW-28 Virender Singh is a Dealing Assistant of Co- operative Society Section of DDA and he stated that S.S. Marwah had applied to convert his property No. 204, Kailash Hills, New Delhi, into free hold in August, 1999 and it was converted into free hold vide conveyance-deed dated 04.05.2000. He proved the conveyance-deed as Ex.PW28/A. 4.29 PW-29 HC Ombir stated that on 18.02.2009, he had accompanied SI Sukhbir Malik to the office of 'Amar Ujala' from where SI Sukhbir Malik got copy of newspaper 'Amar Ujala' dated 18.05.2006 which was seized by him vide seizure memo Ex.PW29/A. From the office of 'Amar Ujala', they went to Village Ratan Garhi, near Gang Nehar, where IO made inquiries regarding a dead body by showing photographs of S.S. Marwah to public persons and there Radhey Shyam, Rajesh and Vinod identified the photograph and stated that the dead body of this person was lying on the bank of Gang Nehar. On 19.02.2009, they took Gulfam to S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 23 /66 his house from where he got recovered a 'Toyota Corrola' car bearing registration No. 6950 which was seized vide seizure memo Ex.PW29/B. He also stated that accused Gulfam Ahmad stated that he had bought this car out of the ill gotten money. He further stated that on the same day, they took Aarif to his village Mavi Meera, District Meerut from where he got recovered a Santro car which was seized vide seizure memo Ex.PW29/C. In his cross- examination, he stated that they had tried to trace Pradhan, Numbardaar and Chowkidar of the area but they could not find them.
4.30 PW-30 Preet Pal Singh Kalsi stated that in the year 2007, he used to deal in electronics and had an office in Naraina under the name and style of 'Safron Marketing India (P) Ltd.' He stated that one of his friends Faraz Ahamad introduced him to one Gulfam Ahmad and Niti Sarin; they both came to his office, they offered to sell ground floor of House No. 204, East of Kailash, New Delhi, for which he paid a sum of Rs.16 lacs to them, and at that time it was only a plot and no construction was raised on the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 24 /66 same. He also stated that they had a collaboration agreement with one Shifa -Ur-Rehman. Gulfam and Niti told him that Niti Sarin is the owner of House No. 204 and Gulfam Ahmad was her friend; Shifa-Ur-Rehman met him and told that construction would be completed in 2-3-4 months. He stated that he used to visit the property regularly and found that no construction was done on the plot at all for 2-3 months. He made a complaint about the delay to his friend Faraz Ahmad, who informed him that now Shifa-Ur- Rehman is out of scene and Niti Sarin and Gulfam Ahmad had sold the property to one Mr. Chawla and said Mr. Chawla wants to meet him. He further stated that after sometime Mr. Chawla came to his office and told him that he had got the entire property except ground floor from Niti Sarin and Gulfam Ahmad and he also asked him to sell his ground floor also to him. He stated that initially he was reluctant to sell the ground floor but Chawla told him that he had no other option and, therefore, he sold the ground floor for a consideration of Rs.27 lacs. He further stated that after many days, he received the payment from the office of J. Chawla. He identified all three accused persons, namely, Niti Sarin, Gulfam S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 25 /66 Ahmad and Chawla in the court. In his cross-examination, he stated that he had paid Rs. 10 lacs by cheque and Rs. 6 lacs in cash to Niti Sarin and Gulfam Ahmad. He stated that no documents were executed when he sold the ground floor to Chawla. He denied the suggestion that he had never entered into any transaction with Gulfam and Niti Sarin at any point of time and that he has been made a false witness. In his cross-examination for accused J. Chawla, he denied the suggestion that Chawla had paid him Rs.37.5 lacs for the transactions.
4.31 PW-31 Tajudeen stated that he knew Gulfam Ahmad as the latter had a waste material godown in his vicinity and he had also seen Niti Sarin in Mehrauli Court. He stated that as Gulfam Bhai bought a property, he was called by Gulfam Bhai to become a witness on the said document and for that he was called at Mehrauli Court. He could not tell the month and year but stated that the incident was around 2 or 2 ½ years back (his deposition was recorded on 16.07.2011). He also stated that Sirajudeen had accompanied him to Mehrauli Court. He identified his signatures S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 26 /66 on Ex.PW14/A. The witness was declared hostile and was cross- examined by the Ld. Addl. PP., in which he could not tell if document Ex.PW14/A was executed in August, 2006. 4.32 PW-32 HC Rajender is a witness of arrest of Mohd. Arif, Ran Singh and Pappu (juvenile) which he proved as Ex.PW3/A, Ex.PW3/D and Ex.PW3/F respectively. He also proved the disclosure statements of these accused persons as Ex.PW3/C, PW3/H and PW3/J respectively. He stated that on 16.02.2009, all five accused persons were taken to House No. 204, East of Kailash, New Delhi, where they pointed out the house under construction and the pointing out memo was prepared. He also stated that he alongwith the IO with accused Ran Singh, Arif and Pappu went to Sardhana Village where accused persons pointed out the place where they had left the dead body of S.S. Marwah and blood stained pillow and the pointing out memos were proved as Ex.PW32/A, Ex.PW32/B and Ex.PW32/C respectively. In his cross-examination, he stated that no independent witnesses were joined in investigation from the place where Pappu and Ran Singh S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 27 /66 were arrested.
4.33 PW-33 SI Ravinder Singh Teotia had joined the investigation with SI Sukhbir Malik on 09.02.2009 at House No. B-76, East of Kailash, where Gulfam Ahmad and Niti Sarin were met. He stated that they confessed about their involvement in murder of Sh. Marwah by hiring three boys - two of whom were Arif and Rohtas. He proved the arrest memo of accused Gulfam as Ex.PW18/A and his personal search memo is Ex. PW18/B; arrest of accused Niti Sarin is Ex.PW12/A and her personal search is Ex. PW12/B. He also proved the disclosure statement of accused Gulfam as Ex. PW18/C and of Niti Sarin as Ex. PW12/C. He further joined the investigation on 10.02.2009 with S.I. Sukhbir Malik when Ford Icon Car bearing No. DL 3CV 6510 was seized by the IO vide seizure memo Ex. PW26/A. On 16.02.2009, pointing out memos of House No. 204, Kailash Hills was prepared at the instance of all five accused persons including the juvenile which were proved as Ex. PW33/A to Ex.PW33/E. Thereafter, photocopy of GPA was seized from House No. B-76 vide seizure S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 28 /66 memo Ex. PW33/F from the Almirah of Niti Sarin and then supplementary disclosure statement of Gulfam and Niti Sareen were recorded which were proved as Ex. PW33/G to PW33/H. 4.34 PW-34 SI Sukbbir Malik is the IO, who stated that on 06.02.2009, he was posted in SOS Crime Branch Office at Sun Light Colony where he received a secret information that a lady Niti Sarin with the help of her friend Gulfam had got her father S.S. Marwah missing since May 2006 and till date whereabouts of S.S. Marwah were not known. The informant also informed him that by making a fake document of Property No. 204, Kailash Hills, the property of S.S. Marwah was usurped. He disclosed this information with the senior officers, who instructed to develop the information further. He thereafter went to Record Room of P.S. Lajpat Nagar and checked Rojnamcha of P.P. Garhi of May 2006 and he found DD No. 19 regarding missing call of Marwah dated 18.05.2006. He also found report in this regard in the records. Inquiry of the said missing report in the area where the property was situated and he was informed that the said house was under
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 29 /66 construction and was in dispute. He then prepared a Tehrir and got the case registered on 08.02.2009. He proved his Tehrir as Ex. PW34/A. He further stated that on 09.02.2009, he alongwith SI Ravinder Teota and lady Constable Anju went to B-76, East of Kailash where at first floor Niti Sarin and Gulfam were found. Both of them were arrested vide Ex. PW12/A and Ex. PW18/A. They were brought to Sun Light Colony Office where their disclosure statements Ex. PW12/C and Ex. PW18/C respectively were recorded. They also disclosed to have taken the help of Mohd. Arif, Pappu @ Rohtas and Ran Singh and also they got prepared a fake GPA of the said property with the help of one J. Chawla. On 10.02.2009, he seized Ford Icon Car No. DL 3CV 6510 which was used to carry the dead body of Marwah to Meerut where it was thrown at Gang Nehar at Village Ratan Garhi. On 11.02.2009 at the instance of Gulfam, Mohd. Arif was arrested vide Ex. PW3/A and his disclosure statement was proved as Ex. PW3/C. Thereafter, they went to Village Mavi Meera at the house of Pappu and Ran Singh and they were arrested vide Ex. PW3/F and Ex.
PW3/D respectively and their disclosure statements were Ex. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 30 /66 PW3/I and Ex. PW3/H respectively. He also stated that on 13.02.2009, one Hemant Kwatra came to his house and claimed himself to be an eye witness and he then recorded his statement. Efforts were also made by him for recovery of the dead body or any other witness at Village Ratna Garhi, Sardana, Meerut. He also stated that on 16.02.2009, Niti Sarin got recovered from her house a photocopy of the fake GPA (Ex.PW1/A) which was seized vide seizure memo Ex. PW33/F. He further stated that on 20.02.2009 accused J. Chawla was arrested from his house and he also got recovered about hundred documents regarding property No. 204 from his house. He stated that J. Chawla had disclosed that he had destroyed the original GPA when the case was got highlighted in the media. He also proved regarding collecting the photocopies of various sale-deeds from the office of Sub-Registrar, Mehrauli and he proved those documents which were supplied by the office of Sub Registrar as Ex. PW14/A, PW14/B, PW22/A , PW22/B and PW22/C. He also obtained the account opening form of Account No. 5772 of S.S. Marwah which was his joint Account with Niti Sarin and Sudesh Marwah, his wife. He stated that he had taken S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 31 /66 the account opening form and the GPA to the FSL Office for comparison of the signatures but FSL Officials declined to give any opinion on the basis of photocopy of the GPA in question. He also obtained the account statement of accused J. Chawla from his banks i.e Axis Bank, Punjab National Bank and Bank of India which he proved as mark PW34/X3, PW34/X4 and PW34/X5. He also stated that he seized at the instance of accused J. Chawla from his house original documents mark PW34/X6. Collaboration Agreement mark PW34/X7, Indemnity Bond mark PW34/X8, Affidavit mark PW34/X9, receipt mark PW34/X10, Agreement to sell mark PW34/X11, receipt mark PW34/X12 and another receipt mark PW34/X13. He further stated that he had taken Ford Icon Car to the office of FSL Rohini which was examined by the FSL officials but nothing incriminating was found in the car. He also proved to have taken photographs of Premises No. 204 which were proved as mark PW34/X14. In his cross-examination, he stated that the secret informant was not an eye witness. This witness was extensively cross-examined on the various aspects of his investigation.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 32 /66
5. All the incriminating circumstances were put to the accused persons in their S.A recorded under Section 313 Cr.P.C to which all the accused persons have given vague replies. They have stated that they have been falsely implicated in this case. Accused Mohd. Arif stated that he was lifted by the police falsely and his relative had informed about the date of arrest to the higher authorities. Similar was the reply of accused Ran Singh. Both these witnesses sought permission to lead defence evidence to show their false arrest from Meerut. Accused J. Chawla also sought permission to lead defence evidence.
6.1 DW-1 Mohd. Kasim was examined on behalf of accused Ran Singh and Mohd. Arif and he stated that on 05.02.2009, he has sent a telegram to Human Rights Commission mark DW1/A with respect to Ran Singh and Pappu that they were lifted by the police illegally on 05.02.2009.
6.2 DW-2 Vimal Kumar was examined by the accused J. Chawla. He is a Head Clerk in the Office of Sub-Registrar V, S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 33 /66 Mehrauli and he brought the copy of the sale-deed executed by Sonika Chopra in favour of Rajesh Thakur on 03.03.2008 regarding Property No. 204, Kailash Hills. He proved the sale- deed as Ex. DW2/1.
7. Ld. Addl. PP stated that the prosecution has been able to prove its case beyond all reasonable doubts against the accused persons. He stated that the witnesses have supported the prosecution case. He relied upon the statements of PW-1 Ravi Goyal, PW-9 Mohit Kumar, PW-14 R.N. Nawani, PW-19 Anil, PW-22 Radhey Shyam, PW-28 Virender Singh and PW-30 Pritpal Singh Kalsi besides the police witnesses, including IO/SI Sukhbir Malik who deposed about their respective roles in the investigation.
8.1 Sh. R.M. Tufail, Ld. Counsel for the accused Gulfam, Aarif and Ran Singh has stated that the entire case of the prosecution is based on circumstantial evidence as there is no eye witness to the alleged offence. It has been stated that a missing report was filed S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 34 /66 regarding missing of S.S. Marwah by his daughter Niti Sareen on 16.05.2006. However, the FIR in question has been registered only on 08.02.2009 and the prosecution has not explained this delay at all. It has been stated that the law on the question of circumstantial evidence has been reiterated by the Superior Courts on more than one occasion that the conviction can be based on circumstantial evidence, if the prosecution case is consistent with the only hypothesis that the accused is the guilty person and there cannot be any other person to have committed the said offence. Ld. Counsel stated that the prosecution is duty bound to prove its case beyond all reasonable doubts and in the present case since the chain of events is not complete, the accused persons are entitled to be acquitted in this case. He has stated that according to the prosecution, the motive of the murder of S.S. Marwah was his house No. 204, Kailash Hills, East of Kailash, New Delhi-110065 which he had bequeathed in favour of minor children of co-accused Niti Sareen and when Niti Sareen realized that she would not get anything out of the said property, she got her father killed with the help of Gulfam, Aarif and Ran Singh and thereafter she created a S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 35 /66 Power of Attorney in her name and sold the said property and usurped the sale proceeds. Sh. Tufail, Ld. Counsel has stated that the prosecution has however neither produced the original Will nor the copy of the said Will. He stated that prosecution had produced two witnesses, namely, PW-2 Rakesh Kumar and PW-4 Vinod Kumar, who were the alleged witnesses of seeing the dead body to be floating in Gang Nehar. He further stated that both these witnesses did not support the prosecution case in this regard. He also stated that even the dead body of S.S. Marwah was not found which could show that he has actually been killed. He also stated that rest of the witnesses are mainly witnesses of investigation and none of them has deposed about the role of the accused persons in this case. Ld. Counsel has stated that the accused persons have been falsely implicated in this case by S.I. Sukhbir Malik who himself became the complainant as well as the investigator and accused Aarif and Ran Singh were illegally lifted from their house at Meerut on 05.02.2009 and in this respect telegrams were sent by his family members as per Ex. DW1/A. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 36 /66 8.2 Sh. Jayant Sood, Ld. Counsel for the accused Niti Sareen argued that there is no eye witness against her. He has stated that according to the prosecution, a secret information came on 06.02.2009 but interestingly the said secret information was not recorded immediately on its receipt, but an FIR was registered on 08.02.2009. It has been stated that the said secret information, as per the records, is recorded by S.I. Sukhbir Malik and, therefore, he being the informant, could not have investigated the case himself, by becoming Investigating Officer of the case. It has been stated that this case is one man show of S.I. Sukhbir Malik. The motive attributed to the accused for murder of S.S. Marwah, according to the prosecution, is that S.S. Marwah had not given any share in his property to her and hence she connived with co-accused Gulfam and got her father killed. Ld. Counsel has stated that there is no witness regarding this claim of the prosecution nor is there any circumstantial evidence against her which could unerringly point towards her guilt in the offence. It has been stated that on 18.05.2006, S.S. Marwah, father of accused Niti Sareen went missing and she promptly lodged a report in this regard with the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 37 /66 police and had police any doubt on her role, she and her mobile could have been put under surveillance then and there to collect the evidence of her complicity in the offence. Regarding forging of G.P.A, Ld. Counsel has stated that there is no evidence in this regard that the GPA was forged except the opinion of the IO himself. Ld. Counsel has stated that there is no evidence on record that accused Niti Sareen did not have cordial relations with her father. In short, Ld. Counsel has stated that there is no eye witness to the offences of conspiracy or of murder or of forgery or of causing disappearance of evidence, and that being the position, the chain of circumstances relied upon by the prosecution is incomplete, there is a time gap of huge extent between alleged last scene, no independent public persons were joined in the investigation of the case, there is no evidence of neighbours regarding the amorous relations of the accused with the co-accused Gulfam and if two views are possible from the circumstances placed on record, then the view which is favourable to the accused is to be preferred. As such, acquittal has been prayed for the accused.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 38 /66 8.3 For accused J. Chawla, Mrs. Kamlesh Mahajan, Ld. Counsel argued that the accused has been falsely implicated in this case and he had purchased the property in question from Gulfam one year prior to the incident. She has stated that there is no evidence on record regarding the execution of GPA nor anybody has stated that the said GPA was in possession of accused J. Chawla and he destroyed it. She stated that accused J. Chawla had sold this property against consideration to Pritpal well before this case. She stated that neither the offence of cheating nor of forgery nor of destruction of evidence is made out against the accused J. Chawla and hence he should be acquitted. Written synopsis were also filed on behalf of all the accused persons separately. 8.4 Ld. Addl. PP in rejoinder stated that there is no legal bar in the informant doing the investigation himself. Regarding delay in registration of FIR, he has stated that the secret information was received on 06.2.2009 which was converted into FIR on 8.2.2009 after the information was brought to the notice of the senior officers and after doing preliminary inquiry. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 39 /66
9. I have heard all the Ld. Counsels and have perused the records of the case.
10. The first question which is required to be decided is as to whether SI Sukhbir Malik is competent to act as Investigating Officer in this case, when he himself was the informant, at whose instance the FIR in question was registered. Ld. Counsel for the accused persons have relied on a Judgment in Megha Singh vs. State of Harayana 1996 (11) SCC 709 wherein the Hon'ble Supreme Court did not approve investigation by the very same police officer who had lodged the complaint, holding it to be not conducive to fair and impartial investigation. On the other hand, Ld. Addl. PP relied on the judgment of State vs. V. Jayapaul 2004 (5) SCC 223 to say that such an investigation can be done by the police officer himself after recording the FIR. The later judgment of the Hon'ble Supreme Court, when perused shows that the earlier judgment in the case of Megha Singh was also considered in it as also the provisions contained in sections 154 to 157 of the Code of S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 40 /66 Criminal Procedure. In the later judgment, the Hon'ble Supreme Court held that no such broad proposition was laid down in Megha Singh's case that a police officer who in the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further investigation if the FIR was recorded on the basis of the information furnished by him. The Court held that there is nothing in the provisions of the Cr PC which precluded such a police officer from taking up the investigation. It was held:
"The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the congnizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Section 154 to 157 of the Code or any other provisions of the Code."
11. That being the legal position, the objection raised by the Ld. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 41 /66 Counsels for the accused persons that the IO/SI Sukhbir Malik was not competent to undertake investigation in the present case, he being the author of the FIR himself, is without merit.
12. The second objection was raised that the FIR was recorded belatedly in as much as S.S. Marwah went missing on 18.5.2006, which was reported vide DD No. 19 but the FIR was registered on 8.2.2009. Even this objection is without merit. First of all, there is no prescribed period of limitation for registration of an FIR. As soon as a cognizable offence having been committed, comes to the notice of the police, the FIR is to be registered. When S.S. Marwah went missing, police recorded a DD and took its routine steps like flashing the information and getting the photo of the missing person published in newspaper. However, a secret information is stated to have been received on 6.2.2009 about murder of S.S. Marwah and on this information, the FIR was registered on 8.2.2009. The IO/SI Sukhbir Malik has stated in his deposition that after receiving the information, he discussed it with his senior officers and they asked him to develop the information S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 42 /66 and thereafter he made inquiries - including checking records of DD No. 19, inquiries from HC Baljor and local inquiries in the area and thereafter, FIR was registered. I therefore, do not see any unreasonable delay in registration of FIR. In a recent case titled Bhajan Singh vs. State of Harayana 2011 (7) SCC 421, it was held:
20. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were an afterthought or had given a coloured version of events.
21. The court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law.
13. This Court feels that the explanation given by the IO is reasonable and the case cannot be thrown out on the ground of delay in lodging the FIR.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 43 /66
14. Having crossed these two legal hurdles, let's now proceed further on the merits of this case. This Trial can be divided into two parts. One part relates to murder of S.S. Marwah - for which all accused persons except accused J. Chawla were tried and the other part relates to usurping of the property of S.S. Marwah - for which accused Gulfam, Niti Sareen and J. Chawla were tried.
TRIAL RELATING TO MURDER
15. The case is based on circumstantial evidence. There is no direct evidence to connect the accused with the offence. There is no eye witness to the offence. The law on circumstantial evidence is well settled that where a case rests squarely on circumstantial evidence, an accused can be held guilty only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or with the guilt of any other person. The circumstances from which the inference of guilt of the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 44 /66 accused is drawn, must be proved beyond reasonable doubt. In a case based on circumstantial evidence, such evidence must satisfy three tests i.e. namely the circumstances from which an inference of guilt is to be drawn are to be cogently and firmly established; secondly those circumstances should be of a definite tendency of unerringly pointing towards the guilt of the accused; and thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escaping the conclusion that within all human probability the crime was committed by the accused and none else. In Vijay Kumar Arora vs. State 2010 (2) SCC 353 it was held that the accused can be convicted on circumstantial evidence, provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt.
16. As stated previously, all accused persons except accused J. Chawla have faced the charge of forming criminal conspiracy to murder S.S. Marwah, for murdering him and then for causing disappearance of his dead body. When we sift the evidence that S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 45 /66 has come on record, it is found that there is no complete chain in this regard which could secure conviction of the accused persons for these offences. First of all, there is no corpus-delicti i.e. dead body of deceased S.S. Marwah has not been recovered till date. The law on recovery of dead body is settled that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law (see Ramji Rai vs. State of Bihar 2006 AIR SCW 4816 & Badshah vs. State of UP 2008 Cr LJ 1950 SC).
17. Prosecution relied upon mainly four witnesses to prove the offences of 120-B, 302/120-B and 201/120-B IPC. However, none of these four witnesses supported the prosecution and were declared hostile. The prosecution witness PW 10 Hemant Kwatra, who allegedly saw the murder of S.S. Marwah on the night of 16/17.6.2006 when Gulfam, Mohd. Arif, Pappu and Rann Singh in Ford Ikon Car No. DL 3 CV 6510 reached Niti Sareen's house at 204, East of Kailsh Hills where S.S. Marwah was smothered to death in the vision of Neeti Sareen, whereafter Neeti Sareen gave a white bed sheet in which the dead body was wrapped, did not S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 46 /66 support the prosecution. So, the prosecution could not draw any support from this witness.
18. If the eye witness goes out of picture, the case becomes one depending upon circumstantial evidence. PW-1 Ravi Goyal deposed that on 16.5.2006 he had given his Ford Icon Car No. DL 3 CV 6510 to his friend Gulfam but this circumstance in itself is not sufficient to nail the accused persons as no clue of the offence of carrying the dead body in this car was found in this car when it was seized and searched. There is no FSL report in this regard which could show that the said car was used for carrying the dead body nor could it be logically found as the car was seized after more than 20 months of the alleged offence. The witnesses PW-2 Rakesh Kumar and PW-4 Vinod Kumar who allegedly saw a floating dead body in Gang Nahar, also did not support the prosecution. Another witness namely PW-23 Parag Gupta who is a press reporter with newspaper Amar Ujala, stated that in the year 2006 an information was received in their office that a dead body was lying at Village Ratnagarhi, Gang Nahar, Meerut but when he S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 47 /66 went there he did not find any dead body there. So even this witness is not of any help to the prosecution that the said dead body was that of S.S. Marwah. Similarly, PW-25 Rakesh from Amar Ujala proved giving of newspaper dt. 18.5.2006 to the IO. Deposition of HC Baljor is to the effect that he received the missing information regarding S.S. Marwah and then he went to the house no. 204, East of Kailash wherefter he took steps which are usually taken in respect on a missing person report. There is no other evidence either of direct or of circumstantial nature, which could connect the accused persons with the offences of criminal conspiracy, murder and destruction of evidence. The law on circumstantial evidence in unmistakable terms state that the chain connecting the accused persons must be complete and should be consistent only with the hypothesis of the guilt of the accused persons. There is no recovery of dead body of S.S. Marwah. The accused persons namely Gulfam, Neeti Sareen, Rann Singh and Mohd. Arif are thus entitled to be acquitted, giving them benefit of doubt for the offences relating to the first set of charge i.e. u/s 120-B, 302 r.w. 120-B and 201 r.w. 120-B IPC and they are so S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 48 /66 acquitted.
TRIAL RELATING TO FORGERY & MISAPPROPRIATION
19. As stated earlier, accused Gulfam, Niti Sarin and J. Chawla were also charged for having committed the offences u/s 120-B, 467/420, 471 r.w. 120-B and 201 r.w. 120-B IPC i.e. regarding hatching a criminal conspiracy to prepare forged and fake documents to misappropriate the property of SS Marwah; for preparing forged and fake GPA dt. 21.3.2001; for using that forged and fake GPA for executing collaboration agreement, sale of constructed floor so as to cheat purchasers and finally for destructing the said original fake and forged GPA dt. 21.3.2001. There are many circumstances/evidences which show that the said GPA dt. 21.3.2001 was a forged document and on the basis of this forged GPA, property no. 204, Kailash Hills of S.S. Marwah was transferred many times by accused persons Niti Sarin and Gulfam Ahmad.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 49 /66
20. PW-9 Mohit Kumar, a Typist at R.K. Documents R-16, Kalkaji, New Delhi deposed to have given a print of sample of Attorney on a plain paper to accused Gulfam and Niti Sarin in 2006. He also identified the contents of Ex. PW 1/A to be the same which were provided by him.
21. PW-1 Ravi Goyal stated that the GPA (Ex. PW 1/A) purportedly bears his signatures but the same are not his signatures. His deposition also shows that he was known to accused Gulfam, and was in fact friend of Gulfam Ahmad. Neither accused Gulfam Ahmad nor accused Niti Sarin gave any convincing reply to this circumstance in their examination u/s 313 Cr PC nor they produced any other witness in their defence to prove that PW-1 Ravi Goyal was deposing falsely or that the said document is a genuine document. Nor did they produce the original GPA dt. 21.3.2001 although the same ought to have been with either of them. Combined effect of the depositions of PW-1 Ravi Goyal and PW-9 Mohit Kumar is that accused Gulfam Ahmad and accused Niti Sarin had fabricated the GPA (Ex. PW 1/A) in the year 2006, ante- S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 50 /66 dated it to 21.3.2001 i.e. during the life time of Sh. S.S. Marwah and the motive and intention was obvious i.e. to usurp the properties of Sh. S.S. Marwah including property no. 204, Kailash Hills, New Delhi.
22. PW-28 Virender Singh is a dealing Assistant of Co-op. Society Section of DDA who proved that vide conveyance deed dt. 4.5.2000, the plot no. 204 Kailash Hills in the name of S.S. Marwah, was converted into freehold. He proved the said conveyance deed dt. 4.5.2000 as Ex. PW-28/A. Interestingly, in this conveyance deed, his daughter/accused Niti Sarin is not a witness, rather signatures of one R.P. Khanna r/o. 53, Kailash Hills and of one R.R. Biala r/o 235 Kailash Hills, New Delhi appear in in the column of witnesses. This shows that S.S. Marwah had faith in R.P. Khanna and R.R. Biala and not in his own daughter Niti Sarin. In these circumstances, it would be unbelievable that just after 10 months of this, he would execute a Power of Attorney on 21.3.2001 in favour of the said daughter, that too in the presence of some other witnesses - one of whom is a friend of accused Gulfam S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 51 /66 and not in presence of the aforesaid witnesses. Clearly, the Power Of Attorney Ex. PW 1/A is fabricated.
23. PW-14 R.N. Nawani is the Sub-Registrar who deposed to have registered the sale deed Ex PW-14/A on 25.8.2006 of 204, Kailash Hills, New Delhi executed by accused Niti Sarin as Attorney of S.S. Marwah in favour of accused Gulfam. Para 11 of the said Sale deed reads that the attorney declares that the principal is alive and GPA executed by him has not been revoked/cancelled till date. Now this declaration is also apparently false that 'the principal is alive' when his whereabouts were not known atleast after 18.5.2006. If the sale was genuine, in all fairness, it must have been stated in this Sale Deed that S.S. Marwah is missing since 18.5.2006. By not disclosing the true picture in the Sale Deed, and rather by declaring that the principal is alive, the intention of the accused persons to usurp the property comes to fore.
24. PW-19 Anil has stated that he purchased first and second floor of house no. 204, Kailash Hills from accused J. Chawla on S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 52 /66 16.10.2007 (Ex. PW-19/A) in the name of his mother Gulab Devi Narang by a registered sale deed for Rs. 30 lacs, which was purchased back by J. Chawla on 9.4.2008 (Ex. PW-22/C) for Rs. 35 lacs in the name of his relative Sonia Agarwal, on the ground that there was some dispute regarding title of the property. This circumstance show that there was some illegality in the sale of the property i.e illegality regarding title of the property.
25. PW-27 Sirajuddin was put a suggestion by accused Niti Sarin that he had never visited the office of Sub-Registrar for registration of sale-deed on 25.8.2006 (Ex. PW14/A). It is not understood but was the purpose of this suggestion except that this witness was sought to be impeached.
26. PW-30 Pritpal Singh Kalsi has stated that he had paid Rs. 16 lakhs to Gulfam Ahmad and Niti Sarin for purchasing ground floor of House No. 204, Kailash Hills, New Delhi, and at that time it was only a plot and no construction was raised on the same. He was told by Gulfam and Niti that the construction would be done by S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 53 /66 Shifa -Ur-Rehman in 2-3-4 months but no construction was done at the plot at all for 2-3 months. He made a complaint about the delay to his friend Faraz Ahmad, who informed him that now Shifa-Ur- Rehman is out of scene and Niti Sarin and Gulfam Ahmad had sold the property to J. Chawla. After sometime J. Chawla came to his office and told him that he had got the entire property except ground floor from Niti Sarin and Gulfam Ahmad and he also asked him to sell his ground floor also to him. He stated that initially he was reluctant to sell the ground floor but Chawla told him that he had no other option and, therefore, he sold the ground floor for a consideration of Rs.27 lacs. In his cross-examination, he stated that no documents were executed when he sold the ground floor to Chawla. He denied the suggestion that he had never entered into any transaction with Gulfam and Niti Sarin at any point of time. In his cross-examination for accused J. Chawla, he denied the suggestion that Chawla had paid him Rs.37.5 lacs for the transactions. This shows that accused J. Chawla had purchased the property from Pritpal Singh Kalsi by paying Rs. 37.5 lacs. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 54 /66
27. The circumstances which can be knit in a chain, which have appeared during trial are that S.S. Marwah had got his property No. 204, Kailash Hills, New Delhi converted into 'freehold' on 4.5.2000. He is reported missing on 18.5.2006 by Niti Sarin. Accused Gulfam and accused Niti Sareen then approach PW-9 Mohit Kumar for getting a sample of the Power of Attorney. He gives them a sample Power of Attorney. Then a back dated Power of Attorney is created/fabricated by accused Gulfam and accused Niti Sarin by putting the date 21.3.2001 purportedly issued by SS Marwah appointing Niti Sarin as his attorney to deal with his property 204, Kailash Hills. This Power of Attorney is not registered but only notarized. This Power of Attorney is purportedly witnessed by one Ravi Goyal, who is a friend of accused Gulfam. Ravi Goyal stated as PW-1 that the said Power of Attorney does not bear his signatures. On 25.8.2006, property no. 204, Kailash Hills, New Delhi is sold by accused Niti Sarin to accused Gulfam as an Attorney of S.S. Marwah, declaring in the Sale Deed that S.S. Marwah is alive, for a total consideration of Rs. 12.5 lacs. This declaration was false to the own knowledge of S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 55 /66 accused Niti Sarin. Nothing is mentioned in the sale deed dt. 25.8.2006 as to how this amount of Rs.12.5 lacs is paid. Deposition of PW-27 Sirajuddin, regarding payment of money, is not convincing as deposition to this effect is an improvement over his statement made u/s 161 Cr PC. Neither accused Gulfam nor accused Niti Sarin bring any evidence on record as to how the payment of Rs. 12.5 lakhs was made and received if it was an honest transaction. That having not been done shows that the said transaction was sham. Having thus got the ownership of property no. 204 Kailash Hills, New Delhi, Gulfam then enters into a collaboration agreement with PW-11 Shafa ur Rehman for construction of a basement, upper ground floor, first floor and second floor, for which Shafa Ur Rehman had to bear the entire cost of construction and he also paid Rs. 15 lacs to Gulfam and in return, he had to get the ownership of second floor. Value of this property measuring 255 sq yds. in Kailash Hills, New Delhi can be understood and imagined only by this fact that Shafa-ur-Rehman had to bear the entire construction cost of constructing basement, upper ground floor, first floor and second floor and had also paid S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 56 /66 Rs. 15 lakhs to Gulfam to get ownership of second floor. This much was the value of one floor of this property and accused Niti Sarin had sold this entire property to accused Gulfam at a mere Rs. 12.5 lakhs? This again shows that the transaction entered into between Niti and Gulfam was sham. As already noticed, there is no mention in the Sale Deed as to how this payment of even Rs. 12.5 lakhs was made. Shafa ur Rehman is however not able to do the construction and demands his Rs. 15 lacs from Gulfam. Gulfam then arranges his meeting with accused J. Chawla, another builder and J. Chawla pays Rs. 12 lacs to Shafa ur Rehman. A collaboration agreement Mark 34/X-7 is entered into between accused Gulfam and accused J. Chawla which is witnessed by Niti Sarin and Shafa ur Rehman. Alongwith this agreement, accused Niti Sarin executes an unusual affidavit Mark 34/X-6 to the effect that her father had executed a Power of Attorney in her favour on 21.1.2003 (not 21.3.2001) which he had signed in her presence and on the strength of the said Power of Attorney, she sold property no. 204, Kailash Hills to Gulfam on 25.8.2006 by a registered sale deed. There was no need for Niti Sarin to swear this unusual S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 57 /66 affidavit, if she had bonafidely and lawfully sold the property to Gulfam. The very swearing of this affidavit shows that the transfer of property by way of sale-deed in favour of accused Gulfam, was illegal and unlawful. The property is then constructed with basement, upto second floor. On 8.6.2007 by a sale deed Ex. 14/B, accused Gulfam resells the Ground Floor to Niti Sarin for Rs. 31 lacs by giving four post dated cheques of 11.7.2007. In his account statement Ex. PW 15/A no such payments have been shown to have been credited. This transfer of the property therefore again becomes doubtful. By another sale deed of 8.6.2007 Ex. PW 22/A, he sells First Floor and second floor for Rs. 24 lacs to accused J. Chawla. Accused Niti Sarin is one of the witness on this sale deed Ex. PW-22/A while the other witness is Pramod Dixit. This Pramod Dixit is also a witness on the sale deed Ex. 14/B between Gulfam and Niti Sarin while the other witness was Anil Kaushik. It is not understood as to what was the need for Niti Sarin to be a witness to the sale-deed executed by accused Gulfam in favour of accused J. Chawla when other witness Anil Kaushik was present in the Sub-Registrar Office, who had also witnessed the sale-deed S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 58 /66 between accused Gulfam and accused Niti Sarin. The only inference which can be drawn is that accused J. Chawla wanted Niti Sarin to be the witness of the sale of property of her father in his favour because he knew the entire background. On 30.7.2007 Ex. PW 22/B, accused Niti Sarin sells the Ground floor to Shonika Chopra, w/o. accused J. Chawla. Accused J. Chawla has admitted in the cross-examination of PW-30 Pritpal Singh Kalsi that he had paid Rs. 37.5 lacs to Pritpal Singh as consideration for ground floor of this property. PW-19 Anil stated that on 9.4.2008, his mother G.D. Narang had sold back first floor and second floor to Sonia Agarwal, a relative of J. Chawla for Rs. 35 lacs by a sale deed (Ex. PW-22/C) at his insistence that there is some dispute regarding title of property.
28. Another circumstance which is an equally important circumstance is that in the year 2001 S.S. Marwah executed a Power of Attorney in favour of his daughter which is witnessed by a friend of Gulfam Ahmad and after 5 years the said property is also sold to Gulfam Ahmad. This show that the creation of Power S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 59 /66 of Attorney dt. 21.3.2001 and sale of the property vide sale deed 25.8.06 were parts of the same transaction and the Power of Attorney dt. 21.3.2001 was fabricated in 2006 after missing of S.S. Marwah. Neither Gulfam nor Niti Sarin gave any satisfactory reply to the circumstance put to them in their SA recorded u/s 313 Cr PC that PW-1 Ravi Goyal had stated that the Power of Attorney dt. 21.3.2001(PW-1/A) does not bear his signatures. Only a vague and evasive reply "I do not know" and "it is false" respectively was given by the accused persons. Neither of these accused persons has produced the original GPA, if they claim it to be genuine. Section 106 of the Evidence Act comes into play in such circumstances which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This Court therefore draws an adverse inference regarding non-production of the original GPA, that it was forged and fabricated by accused Gulfam and Niti Sarin and was thereafter used by them for transferring the property of S.S. Marwah first in their names and then transferring it to other persons. Due to this reason, all the transactions for transfer of the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 60 /66 property becomes illegal and unlawful.
29. Section 120-B IPC prescribes punishment for criminal conspiracy. Section 120-A defines criminal conspiracy in the words, when two or more persons agree to do or cause to be done an illegal act. Section defines the word 'illegal' as applicable to everything which is an offence or which is prohibited by law.'
30. The circumstances of this case show that atleast accused Gulfam Ahmad and Niti Sarin had conspired to usurp the property of S.S. Marwah and for that purpose they forged and fabricated the Power of Attorney dated 21.03.2001 (Ex.PW14/A).
31. In Yogesh Joshi vs. State of Maharashtra 2008 Cr LJ 3872 the Hon'ble Supreme Court, succinctly defined the law of criminal conspiracy in the words " it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 61 /66 Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
32. Taking a cue from the aforesaid observations and the chain of circumstances noticed above, the offence of criminal conspiracy punishable under Section 120B IPC is clearly made out against accused Gulfam Ahmad and accused Niti Sarin.
33. Section 467 IPC prescribes punishment for forging a valuable security - will, etc.
34. Section 471 prescribes punishment for using as genuine a forged document. Section 467 IPC reads as under:
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 62 /66 "Whoever forges a document which purports to be a valuable security or a will or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon or to receive or deliver any money, movable property or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money or an acquittance or receipt for the delivery of any moveable property or valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
35. 'Forgery' has been defined u/s 463 IPC in the words as whoever makes any false document .... With intent to cause damage or injury to public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 63 /66
36. Making a false document has been defined u/s 464 IPC as one who dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by a person, knowing that it was not made.
37. Words 'dishonestly' has been defined u/s 24 while 'fraudulently' has been defined u/s 25 IPC. Section 24 says that whoever does anything with the intention of causing wrongful gain to any person or wrongful loss to another person is said to do that thing 'dishonestly'. Section 25 says that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. Section 23 provides that wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled.
38. If all these Sections are read together, they make punishable the acts of forging any valuable security, will etc. as well as using S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 64 /66 the said forged document as a genuine document. It has already been noticed that accused Gulfam Ahmad and Niti Sarin had conspired together and in pursuance to the said conspiracy, they forged a Power of Attorney (Ex.PW1/A) purportedly executed by S.S. Marwah in favour of accused Niti Sarin, authorising her to sell the property and thereafter using that forged Power of Attorney, she sold the property No. 204, Kailash Hills, belonging to S.S. Marwah to accused Gulfam Ahmad and he subsequently thus getting the title of the said property sold part of it to Niti Sarin, to accused J. Chawla. Accused Gulfam and Niti Sarin are therefore held guilty of having committed the offences punishable u/s 467 and 471 r.w. Section 120-B IPC. Both these accused persons are also convicted under Section 120B IPC.
39. So far as accused J. Chawla is concerned, there are evidences that payment of Rs. 12 lacs by made by J. Chawla to PW-11 Shifa- ur-Rehman; that he bought first floor and second floor of the property no. 204, Kailash Hills on 8.6.2007 (Ex. PW22/A) from accused Gulfam, which was witnessed by Niti Sarin, his buying S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 65 /66 ground floor of this property in the name of his wife from Niti Sarin on 30.7.2007 (Ex. 22/B); that he sold the first floor and second floor to G.D. Narang on 29.10.2007 (Ex. 19/A); and then he repurchased this portion in the name of his relative on 9.4.2008 (Ex. 22/C). The overall circumstances which emerge broadly show that accused J. Chawla was also a part of the scene, but in the absence of any direct or complete chain of circumstantial evidence against him, this Court has no option but to acquit him for want of proper evidence, giving him benefit of doubt.
40. In the net result, accused Gulfam Ahmad and accused Niti Sarin are convicted for having committed the offences punishable under Section 120B, 467 and 471 IPC read with Section 120B IPC. All other accused persons are acquitted, giving them benefit of doubt.
Announced in the open Court. (Rajeev Bansal)
Dated:22.03.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 66 /66 IN THE COURT OF SHRI RAJEEV BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEW DELHI.
S.C. No.32/12 (Unique I.D. No.02403R0124872009) FIR No.20/09 PS:Crime Branch U/S: 302/364/201/120B/420/467/471/34 IPC State versus (1) Gulfam Ahmed S/o Mahmood Ahmed R/o H. No. 427, Sant Nagar, East of Kailash, New Delhi.
(2) Niti Sarin D/o Surjit Singh Marwah R/o H. No. B-76, Ist Floor, East of Kailash, New Delhi.
ORDER ON SENTENCE PRESENT: Sh. S.K. Kain, Ld. Addl.PP for State Both the convicts produced from JC alongwith their respective Counsel.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 67 /66
1. Vide judgment dated 22.03.2013 convicts Gulfam Ahmad and Niti Sarin were convicted for the offences under Section 120B/467/471 IPC.
2. For convict Gulfam Ahmad, it has been argued that he has been convicted under Section 467 IPC which provides punishments in two parts. In first part the punishment of life is provided whereas in second part punishment upto 10 years is provided. Ld. Counsel for the convict Gulfam Ahmad has stated that convict is 32 years of age, is married, has a son, who is 10 years old - studying in 5th standard in Summer Field School, New Delhi and a daughter aged 9 years, who is studying in 4th standard. It has also been stated that convict has already undergone incarceration of almost 4 years till now during the trial. It has been stated that convict is a junk dealer, having no bad antecedents and he has never misused the liberty of bail whenever the same was granted to him for interim periods. On the strength of these mitigating circumstances, Ld. Counsel has prayed that either the convict be released on period of sentence already undergone by him or in the alternative, on probation under Section 360 Cr.P.C. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 68 /66
3. For convict Niti Sarin, Ld. Counsel has pointed out that the family condition of the convict is bad. He has stated that the convict is not a habitual offender and is not involved in any other case of any nature whatsoever. Further, it has been stated that she is a single parent, who has to take care of her 23 years old daughter and a 12 years old son, both of whom are students. Apart from it, it has been stated that convict herself has suffered on account of her medical problems. Further, it has been stated that the property in which she is living, is in occupation of an unauthorised tenant and in the absence of the convict, said tenant may create more trouble for her children. An application bringing the mitigating circumstances on record, has also been filed on her behalf.
4. Both the Counsels have relied upon few judgments, according to which, court can take into consideration the mitigating circumstances of the convicts, for the purpose of awarding the appropriate sentence.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 69 /66
5. On the other hand, Ld. Addl. PP has argued that both the convicts had conspired to usurp the property of S.S. Marwah in which they succeeded, for which they have been convicted by this court. He has further stated that till date whereabouts of S.S. Marwha are not known. Regarding the mitigating circumstances, Ld. Addl. PP has argued that the convicts had their children even at the time when the offence was committed and they ought to have considered this aspect at the time of the commission of the offence. Ld. Addl. PP has, therefore, prayed for the maximum sentence.
6. Heard both the sides. The conviction is under Section 120B IPC, 467 and 471 IPC. Section 120B IPC provides for a sentence of either description for a period upto 6 months or with fine or both. Section 467 IPC provides for a sentence of either description upto life imprisonment or upto 10 years and fine whereas Section 471 prescribes for the punishment of either description upto 2 years or fine or both.
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 70 /66
7. In State of UP vs. Kishan AIR 2005 SC 1250 it was laid down that the object of the sentence is to protect the society and to deter the criminal in achieving. Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the victim but also against the society, to which both the victim and the criminal belong. Punishment, to be awarded for a crime, must not be irrelevant but it should be consistent with the atrocity and brutality with which crime was committed. Undue sympathy to impose inadequate sentence would have the effect of undermining the public confidence in the efficacy of law. It is thus the duty of court to award proper sentence having regard to the nature of the offence and the manner in which it was committed.
8. An application under Section 360 Cr.P.C has been filed on behalf of the convict.
9. Section 360 Cr.P.C authorises a court to release the convict on probation, if he is convicted for the offence not S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 71 /66 punishable with death or imprisonment of life. Ld. Counsel has sought to argue that although the conviction is under Section 367 IPC yet it is not a case which would fall under the category punishable with imprisonment of life and hence the convict may be released on probation. If Section 467 IPC is perused, it is found that the there is no such distinction provided by Legislature in which such an offence is made punishable for some part by imprisonment of life and for some other parts of the offence for imprisonment for 10 years and fine. The Section is composite in nature. The distinction has been carved out only with respect to the offence being non-cognizable or cognizable. Forgery of all valuable securities or wills etc. are punishable in part I whereas part II deals with forgery of documents relating to movable properties but nevertheless the punishments for both the offences is either imprisonment of life or with imprisonment of either description for a term which may extend to 10 years and fine. Since Section 360 Cr.P.C specifically bars release of a convict on probation for an offence punishable with an imprisonment of life, the question of granting probation to the convicts, does not arise. S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 72 /66
10. This is an unfortunate case in which a daughter has conspired with co-convict Gulfam to fabricate the Power of Attorney purportedly issued by her father in her name for the purpose of usurping his property and succeeded in her ill design. The convict is an educated lady and she is the only child of S.S. Marwah, who was 75 years old when he was reported missing on 18.05.2006. This circumstance makes the offence of fabrication of Power of Attorney all the more heinous. The whereabouts of S.S. Marwah are not known till date, although, for lack of evidence, she has been acquitted on the charge of patricide of her septuagenarian father. However, keeping in view the manner in which the offence has been committed i.e by fabricating a Power of Attorney purportedly executed by S.S. Marwah in favour of convict Niti Sarin, on the basis of which she transferred the property in the name of convict Gulfam Ahmad, who subsequently sold the property floorwise to different persons and taking into consideration the mitigating circumstances i.e children of both the S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 73 /66 convicts, this court deems it appropriate to award the following sentence to both the convicts:-
For the offence under Section 120B IPC, sentence of 6 months R.I with a fine of Rs.5,000/- each, in default of which to suffer further SI for 1 month.
For the offence under Section 471 IPC, a sentence of 2 years RI with a fine of Rs.5,000/- each, in default of which to suffer further SI for 1 month.
For the offence under Section 467 IPC, a sentence of 7 years RI with fine of Rs.25,000/- each, in default of which to suffer further SI for 6 months.
11. All the sentences shall run concurrently and the convicts shall also be entitled to the benefit of Section 428 Cr.P.C for the period of sentence already undergone by them.
Announced in the open court. ( Rajeev Bansal )
Dated:25.03.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 32/12 FIR No. 20/09 State vs. Gulfam Ahmad etc. 74 /66