Jharkhand High Court
Nand Kishore Prasad Swarnkar vs The State Of Jharkhand on 25 November, 2021
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1048 of 2012
1. Nand Kishore Prasad Swarnkar
S/o Late Shibrat Swarnkar (deleted vide order dated
25.11.2021)
2. Smt. Kalawati Devi
W/o Sri Nand Kishore Prasad Swarnkar,
Both resident of Vill. + P.O. + P. S.- Ichak, Distt. Hazaribagh,
presently residing at Vill. Ghatotand, Chowk No. 12, P.O.
Ghatotand, P.S. Mandu (West Bokaro- Outpost, Distt.
Hazaribagh) ... ... Petitioners
Versus
1. The State of Jharkhand
2. Malti Devi
Wife of Sri Sita Ram Swarnkar
resident of Udlu, P.S. Mandu, Distt. - Hazaribagh, At
Present- Resident of Mohalla- Mumhartoli ( Bhabha Marg.),
P.O. + P.S. Sadar, Distt.- Hazaribagh
... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Mahavir Pd. Sinha, Advocate
Mr. Santosh Kr. Jha, Advocate
For the State : Mrs. Nikki Sinha, A.P.P.
For the O.P. No. 2 : Mr. Shailendra Jit, Advocate
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09/25.11.2021 Heard Mr. Mahavir Pd. Sinha, learned counsel appearing
on behalf of the petitioners along with Mr. Santosh Kr. Jha, learned counsel for the petitioners.
2. Heard Mrs. Nikki Sinha, learned A.P.P. appearing on behalf of the opposite party- State.
3. Heard Mr. Shailendra Jit, learned counsel appearing on behalf of the opposite party no. 2.
4. At the outset, learned counsel for the State has submitted that the petitioner no. 1 has expired during the pendency of the present case. However, she submits that fine was also imposed against him.
5. In response, the learned counsel for the petitioners has submitted that the petitioner no. 2 is wife of petitioner no. 1 and is accordingly the legal representative of petitioner no. 1. Accordingly, he submits that liability, if any, in connection with 2 the fine imposed upon petitioner no. 1 will be borne by petitioner no. 2.
6. Considering the fact that the petitioner no. 1 has expired, office is directed to delete the name of petitioner no. 1 by red ink. It is observed that petitioner no. 2, being the wife and the legal representative of the petitioner no. 1, the fine amount imposed upon petitioner no. 1 will be taken care of by the petitioner no. 2 depending upon the merits of the case.
7. The learned counsel for the surviving petitioner has submitted that to the best of his knowledge, the fine amount has already been deposited before the learned court below by both the original petitioners and in case of any non-deposit of the fine amount, the same will be borne by petitioner no. 2, for both the original petitioners.
8. The present revision has been filed against the judgement dated 27.09.2012 passed by the learned District and Additional Sessions Judge -cum- Special Judge (L.A.) Hazaribagh in Cr. Appeal No. 189 of 2011 whereby the appellate court has upheld and maintained the conviction of the both the original petitioners under Sections 465, 467 and 468 of Indian Penal Code, but acquitted them for offence under Sections 419 and 420 of Indian Penal Code.
9. The original petitioners were convicted vide judgement passed in C.C. No. 12 of 2004 (T.R. No. 424 of 2011) by Judicial Magistrate, 1st Class, Hazaribag on 01.09.2011 for offence under Sections 419/420/465/467/468/34 of Indian Penal Code and were sentenced as follows:
Sentenced under Imprisonment and/or Sections Fine
Under Section 419 Simple Imprisonment for one year IPC Under Section 420 Two years' Rigorous Imprisonment and IPC fine of Rs. 3000/-
3Under Section 465 Two years' Rigorous Imprisonment and IPC fine of Rs. 2000/-
Under Section 467 Three years' Rigorous Imprisonment and IPC fine of Rs. 3000/-
Under Section 468 Three years' Rigorous Imprisonment and IPC fine of Rs. 2000/-
In default of payment of fine, the original petitioners were directed to undergo simple imprisonment for a further period of three months.
Arguments on behalf of the surviving petitioner
10. The learned counsel for the surviving petitioner has confined his arguments on the point of sentence. He has submitted that the present age of the surviving petitioner is 62 years and she is a lady. The case was instituted as back as in the year 2004 for incident of the year 2003 and more than 17 years have elapsed from the date of incident. He also submits that the present offence is the first offence of the surviving petitioner and she is a house wife. The learned counsel submits that the allegation in the present case is that immovable property was purchased in the name of the surviving petitioner from one Malti Devi, but Malti Devi was impersonated by someone else and both the original petitioners, being husband and wife were convicted as aforesaid and the other accused i.e. deed writer, person identifying Malti Devi, etc. were ultimately acquitted.
11. The learned counsel submits that a suit was also filed for cancellation of the registered sale-deed which was numbered as Title Suit No. 97 of 2003. He submits that in the said title suit, the sale-deed involved in this case has been ultimately cancelled. However, from the records of this case, it appears that cancellation of sale deed in the civil suit has not been brought on record either before the learned trial court or before the learned appellate court.
412. The learned counsel further submits that altogether five persons were accused in the present case including husband of petitioner no. 2 i.e. the petitioner no. 1, the Munshi, the deed writer and the person who had identified the seller of the property. He submits that in the complaint case, charge was framed under Sections 419/420/465/467/468/120B read with Section 34 of Indian Penal Code and all the accused persons were convicted, but the learned appellate court acquitted all the accused persons and also acquitted the two original petitioners of the present case for offence under Sections 419/420 of Indian Penal Code and the conviction of the original petitioners for offence under Sections 465, 467 and 468 of Indian Penal Code was upheld.
13. The learned counsel submits that considering the nature of dispute involved in the present case and that the two original petitioners of this case, both husband and wife, were alleged to be involved in the offence, the petitioner no. 2 being a house wife and a lady had no much role to play, though the property was purchased in her name. He submits that considering the totality of the facts and circumstances of this case and the aforesaid submissions on the point of sentence, the sentence of the surviving petitioner may be confined to the period already undergone by her in custody during the pendency of the present petition i.e. from 02.04.2013 to 05.04.2013 and her sentence be modified. He further submits that if this Court thinks proper, some victim compensation may be directed to be given to the victim of this case.
Arguments on behalf of the opposite parties
14. The learned counsel appearing on behalf of the State as well as the opposite party no. 2- complainant, while opposing the prayer, have submitted that there are concurrent findings recorded by both the courts below and it has also come on record that the original petitioners of the present case were relatives of the complainant, whose property was sold to them 5 through impersonation. However, the facts that the present age of the surviving petitioner is 62 years and more than 17 years have been elapsed from the date of the incident and that the present offence is the first offence of the surviving petitioner, is not in dispute. The learned counsels have further submitted that in case this Court is inclined to modify the sentence, then some victim compensation be given to the complainant and such amount may not be less than Rs.50,000/-. The learned counsel for the opposite party no. 2 has further submitted that he does not have any up-to-date information as to whether the sale-deed involved in this case has been ultimately cancelled in the civil suit or not.
Findings of this Court
15. After hearing the learned counsel for the parties, this Court finds that the present case arises out of complaint filed by one Malti Devi against five named accused persons alleging that on 14.06.2003 accused persons conspired and under criminal conspiracy, had put forward another woman in place of herself and executed a forged and fabricated sale-deed in connection with her property and got it registered in the name of the surviving petitioner of this case. The complainant claimed to be the rightful owner and also claimed possession of the property by virtue of the registered sale-deed dated 27.11.1984. It was alleged that the original petitioners of this revision petition being husband and wife got a deed of sale scribed by a deed writer in which the name of the executant was written as Malti Devi and they got another person standing and impersonating Malti Devi with thumb impression and got the deed registered. It was also alleged that the sub-registrar, Hazaribagh was also cheated and was kept in dark and he registered the deed. In the complaint itself, it was mentioned that the complainant was still in possession of the property and one Title Suit No. 97 of 2003 was filed for declaring the sale- deed as void, which was pending before the court of learned 6 Munsif at Hazaribag. In the complaint case, charge under Sections 419/420/465/467/468/120B of Indian Penal Code read with Section 34 of Indian Penal Code was framed.
16. During trial altogether nine witnesses were examined including the complainant who was C.W. 5 and the forensic expert - C.W. 8 who had examined and compared the admitted thumb impression given by the complainant in the court with the thumb impression which was present in the sale-deed. The C.W. 9 was the photographer who had exhibited eight photographs of the thumb impressions being photographed by him earlier as Exhibits 3/3, 3/4, 3/5, 3/6, 3/7 and 3/8 and further 2 photographs of thumb impression of Malti Devi which were marked as Exhibits 3/9 and 3/10. The prosecution witnesses fully supported the prosecution case and they were thoroughly cross-examined. C.W. 1 and 3 were not cross- examined after charge and accordingly their evidences were not considered. The accused were examined under Section 313 of Code of Criminal Procedure and they denied the incriminating materials put to them.
17. The learned trial court also found that the involvement of the original petitioners of this revision application was crystal clear and both of them also happened to be the relative of the complainant and had produced someone else as Malti Devi for the purpose of execution of sale deed instead of actual Malti Devi, the complainant. The learned trial court found that the original petitioners of this revision petition had allured the other accused persons and forged sale-deed no. 9135 dated 14.01.2003 was executed. The learned trial court convicted the original petitioners of this petition and held them guilty of offence under Sections 419/420/465/467/468/34 of Indian Penal Code. The other accused persons were convicted under Sections 419/420 and 120-B of Indian Penal Code. The sentences for offences were imposed as aforesaid.
718. The learned appellate court also considered the materials on record and acquitted all the accused persons for offence under Sections 419 and 420 of Indian Penal Code and found that the co-accused persons were not convicted by the trial court under Sections 465, 467 and 468 of Indian Penal Code and therefore, all the co-accused persons were ultimately acquitted by the learned appellate court.
So far as the original petitioners of this petition are concerned, their conviction under Sections 419 and 420 of Indian Penal Code was set-aside and their conviction under Sections 465, 467 and 468 of Indian Penal Code was upheld.
19. This Court finds that both the judgements passed by the learned courts below are well-reasoned judgements based on materials on record and no illegality or perversity as such has been pointed out by the learned counsel for the petitioners calling for any interference in the judgement of conviction of the petitioners. In fact, the learned counsel has confined his arguments on the point of sentence. Accordingly, the conviction of the original petitioners is hereby upheld.
20. However, considering the facts and circumstances of this case and the fact that the incident is more than 17 years old and the present age of the surviving petitioner, who is a lady, is 62 years and she has remained in custody for a few days during the pendency of the present case and is now a widow, this Court is of the considered view that the ends of justice would be served if the sentence of the surviving petitioner is modified to some extent. In such circumstances, the sentence of the surviving petitioner is hereby modified and is limited to the period already undergone by her in judicial custody with additional fine amount of Rs. 25,000/-. The entire fine amount as imposed by the learned trial court upon both the original petitioners and upheld by the learned appellate court for offence under Sections 465, 467 and 468 of Indian Penal Code as well as the aforesaid additional fine amount of Rs. 25,000/- is to 8 be deposited by the surviving petitioner before the learned court below within a period of three months from the date of communication of this order to the learned court below. The learned court below will also verify the deposit of the fine amounts imposed by the learned court below, as claimed to have been already deposited.
Out of the aforesaid amount of fine, an amount of Rs.25,000/- is directed to be released in favour of the victim- complainant upon due identification.
21. In case of non-deposit of the aforesaid fine amount relating to the surviving petitioner ( Rs. 7,000/- + Rs.25,000/-) within the stipulated period, the surviving petitioner will serve the sentences imposed by the learned court below for offence under Sections 465, 467 and 468 of Indian Penal Code. In case of non-deposit of the fine amount of Rs. 7,000/-, as imposed upon the deceased petitioner no. 1, by the surviving petitioner, if not already deposited, the same will be recovered as per the provision of Cr.P.C.
22. This revision petition is disposed of with the aforesaid modification of sentence of surviving petitioner.
23. Interim order, if any, stands vacated.
24. Pending interlocutory application, if any, is closed.
25. Let the Lower Court Records be immediately sent back to the court concerned.
26. Let a copy of this order be communicated to the learned court below through 'FAX/Email'.
(Anubha Rawat Choudhary, J.) Pankaj