Punjab-Haryana High Court
Mahinder Kaur vs Karnail Kaur And Others on 24 February, 2012
Bench: Jasbir Singh, Sabina
CR.MISC.-A- 850 -MA OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: February 24, 2012
Parties Name
Mahinder Kaur
...APPLICANT
VERSUS
Karnail Kaur and others
...RESPONDENTS
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. Prashant Bansal,
Advocate, for the applicant.
Jasbir Singh, J.
JUDGMENT
Mohinder Kaur, applicant, has filed this application under Section 378(4) read with Section 372 Cr.P.C. seeking leave to file an appeal against order of acquittal dated May 30, 2011, vide which respondents No. 1 to 5 were acquitted of the charges framed against them. The above respondents along with one Darshan Kumar (who died during trial) were arraigned as accused in Criminal Complaint No. 50T of 2009, filed by Nasib Singh, uncle of the applicant. Darshan died during trial.
It was allegation against the accused- respondents that they by playing a fraud upon the applicant, got her thumb -impressions on the blank papers and thereafter forged an agreement to sell land in their favour. CR.MISC.-A- 850 -MA OF 2011 -2- Complaint was filed against the accused - respondents for commission of offences under Sections 463, 467, 468, 471, 420 read with Section 34 IPC.
The trial Judge has noticed the following facts regarding case of the complainant:
"The present complaint was filed by the complainant Nasib Singh on the grounds that he is uncle of Smt. Mahinder Kaur wife of late Nirmail Singh son of Nasib Singh. Said Mahinder Kaur is having two minor daughters and her husband had died in the year 1982. Said Mahinder Kaur along with her minor daughters was having agricultural land in village Lachhru Kalan, Tehsil Rajpura. They were helpless and were harassed by Karnail Singh, elder brother of Nirmail Singh. One day when Mahinder Kaur was sitting in the house and was preparing meals, accused Kuldip Kaur accompanied by accused Karnail Singh came to the kitchen and obtained the thumb impressions of Mahinder Kaur on some blank papers on the pretext for arranging her widow pension. In fact said thumb impressions of Mahinder Kaur were obtained under pressure and she put the same in good faith because at that time, she was living in joint family alongwith accused Karnail Singh and Kuldeep Kaur. Thereafter she was turned out of her matrimonial home along with her daughters. It was alleged that in fact, Karnail Singh wanted to grab the agricultural land of Mahinder Kaur. When Mahinder Kaur brought this fact to the knowledge of the complainant, he moved an application dated CR.MISC.-A- 850 -MA OF 2011 -3- 27.1.1999 through Mahinder Kaur to DGP, Punjab for taking legal action against Karnail Singh and Kuldip Kaur. In persuant of said application, Mahinder Kaur was called by the police where police officials handed over one copy of stay order dated 27.2.1999 and photocopy of an agreement to sell dated 14.4.1997. It has been alleged that Mahinder Kaur never entered into any agreement to sell with accused and the said agreement is forged and fictitious document. Thereafter Mahinder Kaur and complainant made enquiries about the same from the court on 6.3.1999 and inspected the court file from where they came to know that agreement to sell was subsequently forged by converting the Khasra numbers on the same after supplying the photo copy of the same by Karnail Singh before the police. Complainant has alleged that all the accused had forged the agreement to sell and they committed forgery with common intention to grab the agricultural land of Mahinder Kaur. Gurdev Singh and Gurnam Singh attested the same and Darshan Singh accused scribe the same."
After recording pre-charge evidence, both the parties were heard and vide order dated June 2, 2010, the respondents were charge- sheeted for commission of offences under Sections 120-B, 420, 467, 468 and 471 IPC. The respondents pleaded not guilty and claimed trial. The prosecution / complainant produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, separate statements of all the respondents were CR.MISC.-A- 850 -MA OF 2011 -4- recorded under Section 313 Cr.P.C. The entire incriminating material, based on evidence, documents and circumstances appearing against them, was put to them. They denied those allegations, claimed innocence and false implication. They took up a stand that the agreement to sell is genuine. It was executed by the applicant with her free will and against consideration. The respondents also led evidence in defence.
The trial Judge, on appraisal of evidence, found that the prosecution has miserably failed to prove guilt of the respondents - accused. Accordingly, they were acquitted of the charges framed against them. Hence this application.
The trial Judge, when giving benefit of acquittal to the respondents, has observed as under:
"21. After hearing the rival submissions made by the respective counsel for both the parties and after going through the file properly, I am of the considered opinion that complainant has come out with the present complaint on behalf of Mahinder Kaur on the accusations that she in fact never executed any agreement to sell in favour of Karnail Kaur rather accused took her thumb impressions on some blank papers and misused the same for forging the alleged agreement. But said Mahinder Kaur miserably failed to prove the said accusations while deposing in the court. She is the person who was to depose about the particulars of fraud and forgery committed by the accused as per her allegations contained in the complaint but she failed to utter any single word regarding the same. She had CR.MISC.-A- 850 -MA OF 2011 -5- admitted her thumb impressions on the alleged agreement to sell and it was incumbent upon her to give cogent and convincing evidence beyond reasonable shadows of doubt to the effect that under what and which circumstances, her thumb impressions were appended on said blank papers and how accused persons forged the agreement to sell. In her examination in as CW6, apart from the formal statements regarding her relationship with the accused, she has just stated that she never entered into agreement to sell with accused and she was told that Kuldip Kaur took her thumb impressions on papers. Except these words, there is nothing in her examination in chief against the accused persons. Since she has alleged that she never executed any agreement to sell and accused took her thumb impressions on blank papers, it was her who was to prove the said allegations but as discussed above, she failed to do so. As far as evidence given by complainant Nasib Singh is concerned, he was admittedly not present at the time of alleged forgery and Mahinder Kaur told him about the same. He also admitted the said fact in his cross examination that Mahinder Kaur told him about the same in the year 1998. Therefore his evidence is only hear say evidence and his evidence can not be given much weightage.
22. Coming to the other aspects, even the case of complainant is also surrounded in doubts. First of all, there is no explanation of existence of thumb impressions of Mahinder Kaur on the CR.MISC.-A- 850 -MA OF 2011 -6- register of Stamp Vendor and in the Roznamcha Waquati and report of Halqa Patwari where possession of the property mentioned in the agreement to sell was delivered. The complainant and Mahinder Kaur have failed to explain as to what occasioned Mahinder Kur to thumb mark the entries of Patwari in letter and spirit of agreement to sell in question. If she is challenging the contents of said agreement to sell by saying that her thumb impressions were taken on blank papers which were later forged into agreement to sell in question, there should have been no occasion for her to go to the Patwari for change of Khasra Girdawris in name of Karnail Kaur. Patwari has proved not only her thumb impressions but also the signatures of her daughters on the said entries. It has also (been) admitted by Mahinder Kaur and complainant that accused are in possession of the property mentioned in the agreement to sell in question. It is always upon the complainant or prosecution to prove the charges beyond reasonable shadows of doubts but the discussions above point that complainant has failed to do so rather there are various loopholes and doubts in the complaint.
23. As far as existence of two copies of the same agreement, i.e., one having corrections and the other one without corrections is concerned, I am of the considered opinion that accused have also been able to explain the same. The accused persons are relying upon that agreement to sell in which there CR.MISC.-A- 850 -MA OF 2011 -7- are certain corrections in the khasra numbers and name of Mahinder Kaur, Karnail Kaur had also filed the suit for specific performance of agreement to sell against Mahinder Kaur relying upon the same agreement taking the specific plea in the replication proved on record as Ex. D3 filed in that suit to the effect that earlier the agreement was scribed but wrong khasra numbers were mentioned in the same due to mistake of deed writer and later on with the consent of Mahinder Kaur, the corrections were made thereto. The defence stand seems to be probable because if the intention of the accused would have been to commit forgery, the agreement to sell should have been written with deliberations and caution and not in the casual manner in which so many mistakes crept in. Forgery is always done in cautious manner and not in the care free manner, rather it is only in genuine writing written in carefree manner, omissions and mistakes usually take place. Moreover the case of the complainant is that when Mahinder Kaur moved application to higher police officials and parties were called to the police station, the copy of agreement to sell without any corrections came into light. Complainant has examined the police official from the office of complainant branch to prove the same but it never came in that evidence that such copy was ever supplied by Karnail Singh to the police. In his cross examination, he was made to quote the statement of Karnail Singh recorded in that police enquiry and there is nothing in CR.MISC.-A- 850 -MA OF 2011 -8- statement of Karnail Singh recorded so that he had ever supplied the copy of any agreement though he just stated that he will supply its copy. Said official witness had further clarified that thereafter there is no statement of Karnail Singh regarding supply of said agreement to the police and the complaint filed by Mahinder Kaur was ordered to be filed.
Therefore the doubt crept in the truthfulness of the story of the complainant.
24. Another doubt in the case of the complainant is that Mahindcr Kaur is alleging that after the death of her father in law, when she was preparing meal, accused took her thumb impressions on blank papers. The husband of the complainant had died prior to the death of his father Nasib Singh and it has come out in cross examination that after the death of her husband, she had already left the house of accused in village Lachhru Kalan and shifted to the village Hansala. Now when the complainant had already left the village and house of accused after death of her husband, what occasion came to her to prepare meal in the house of accused as alleged by her. Such type of goof up also creates doubt in the case of the complainant."
On perusal of paper book and after hearing counsel for the applicant, this Court is satisfied that the above finding given by the trial Judge is perfectly justified. It was rightly noted that Mahinder Kaur has miserably failed to prove that her thumb-impression was taken under fraud, CR.MISC.-A- 850 -MA OF 2011 -9- on the blank papers. It was also noted that there was no explanation for existence of thumb-impression of the applicant on the register of Stamp vendor, Roznamcha Vakiati and report made by the Patwari concerned, when possession of the property in dispute was delivered. Concerned Patwari came in the witness-box and proved the thumb-impression affixed by the applicant and signatures of her daughter when possession was delivered to the respondents. The trial Judge has also rightly noted that the prosecution / complainant has failed to prove that there was any ill intention on the part of the respondents when agreement to sell was executed. The findings given are as per evidence on record.
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 CR.MISC.-A- 850 -MA OF 2011 -10- and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602, the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be CR.MISC.-A- 850 -MA OF 2011 -11- reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the CR.MISC.-A- 850 -MA OF 2011 -12- accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court or any illegality in the impugned judgment. No case is made out for interference.
Consequently, the applications fail and the same are dismissed.
( Jasbir Singh ) Judge (Sabina) Judge February 24, 2012 DKC