Delhi District Court
Sh. Ved Prakash vs State Through on 9 December, 2020
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA
DISTRICT KARKARDOOMA COURTS, DELHI
Crl. Appeal No. 04/17
(Old. No. 02/17)
1. Sh. Ved Prakash
2. Sh. Ram Prakash
3. Sh. Dharam Prakash
All sons of Sh. Bhram Dev
4. Smt. Sarla Devi
W/o Sh. Bhram Dev
5. Smt. Chandra Devi
W/o Sh. Ved Prakash
All R/o 278/8, Halkaa Kuan
Jwala Nagar, Shahdara, Delhi
...Appellants
Versus
State through
Govt. of NCT of Delhi
...Respondent
Date of filing : 02.01.2017
Date of arguments : 09.12.2020
Date of Judgment : 09.12.2020
JUDGMENT
1. The present appeal was taken up for hearing and for disposal as per roster through virtual hearing on Cisco WebEx platform as well as physical hearing in pursuance of the directions issued by the Hon'ble High Court of Delhi due to pandemic of Covid-19.
Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 1 of 14
2. The appellant has filed this criminal revision petition u/s 397 CrPC. However, on the statement of Ld. counsel, this revision petition was ordered to be treated as criminal appeal u/s 374 CrPC. As such, this criminal appeal u/s 397 Cr.P.C. 1973 is against the judgment dated 17.11.2016 and order on sentence dated 23.12.2016 passed by Ld.C.M.M., Shahdara, Karkardooma, Delhi, whereby all the appellants have been convicted for the offence u/s 471 IPC and accused Smt. Sarla Devi was also convicted for the offence u/s 465 IPC and all the convicts were sentenced to pay a fine of Rs.15,000/- each IDSI 6 months for the offence u/s 471/34 IPC; convict Smt. Sarla Devi was sentenced to pay a fine of Rs.15,000/- IDSI 6 months for the offence u/s 465 IPC and convict Chandro Devi was sentenced to pay a fine of Rs.10,000/-, IDSI 4 months for the offence u/s 471/34 IPC. Out of total fine of Rs.85,000/-, Rs.60,000/- was ordered to be paid as compensation to the complainant Dilip Kumar.
3. The brief facts, as set out in the present appeal, are that at the instance of complainant Dilip Kumar, an FIR u/s 420/468/471/448/34 IPC was registered against the appellants- herein/accused persons-therein and thereafter challan was also filed. Sh. Braham Dev is the husband of appellant No.4-herein/Smt. Sarla Devi and father of appellant Nos. 1 to 3 i.e. Ved Prakash, Ram Prakash and Dharam Prakash respectively. Appellant Smt. Chandro Devi is daughter-in-law of Braham Dev and wife of appellant Ved Prakash. After investigation, charge-sheet u/s 420/468/471/448/34 IPC was filed. Ld. Trial Court heard the arguments on charge and Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 2 of 14 charges were framed against the accused persons-therein. The prosecution examined nine witnesses i.e. PW1 to PW9 in the prosecution evidence. Statement of appellants u/s 313 CrPC was recorded in which they denied the allegations against them and stated that they wanted to lead DE. In their defence, accused persons- therein/appellants-herein examined two witnesses i.e. DW1 and DW2. Thereafter, the Ld. Trial Court, after hearing the arguments passed the impugned judgment and order on sentence.
4. Feeling aggrieved by the said impugned judgment dt. 17.11.2016 and impugned order on sentence dt. 23.12.2016, the appellants / accused persons have preferred the present appeal on the grounds among others that the impugned judgment is based on surmises and conjectures. There is no iota of evidence led by the prosecution that property No. 241 and 421 is the same identical one. The Ld. Trial Court has swept away by erroneous proposition of law thereby rendering the findings with regard to the forging of document, by appellant No. 4 and in consequence thereof holding her as guilty of offence under Section 468 IPC. The Ld. Trial Court did not take into account the cross-examination of PW-1, whose testimony discloses the suppression of material fact and further contrary to the documents relied upon by the prosecution / complainant. The appellants have been held guilty for the offences which they have not committed. The Ld. Trial Court miserably failed to take into consideration the unequivocal admissions made by the PW-1 and PW-2 the star witnesses of the prosecution case who themselves deposed contrary to Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 3 of 14 the case of the prosecution, hence, the impugned judgment deserves dismissal/ rejection straight away. There was no such evidence on record to connect that the property 241 or 421 are the same property. The Ld. Trial Court completely brushed aside the basic principles of criminal jurisprudence that the prosecution is bound to prove its case beyond reasonable doubt and in absence of same, the benefit is given to the accused persons. It is highly erroneous in law on the part of the Ld. Trial Court to rely upon the testimony of PW-8, who admittedly has not examined the questioned document in a scientific manner and further to discard the evidence of the petitioners/ convicts expect without assigning any reason, in this context. Prosecution has not led an iota of evidence relating to the appellants saleable right of the property in question. The Ld. Trial Court completely lost sight over the crucial aspects of the case that the case of the prosecution is contrary to the documents relied upon by it and the entire exercise done by it is against the settled norms of 91 of the Evidence Act. In the present appeal, the appellants have prayed to scrutinize the impugned orders for their correctness and illegality.
5. Despite opportunities given, Ld. Counsel for the appellants has not appeared for oral arguments. However, he has filed written submissions on behalf of the appellants. I have heard Ld. Counsel for the complainant and the Ld. Addl. Public Prosecutor for the State and perused the impugned judgment and order on sentence and have also gone through the materials available on record.
6. The Ld. Counsel for the appellants / convicts, in the Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 4 of 14 written submissions mainly stated the reasons and grounds as mentioned in the appeal and also evidence part of the prosecution witnesses.
7. The Ld. Addl. PP for the State argued that complainant Dilip Kumar supported the case of the prosecution. The accused persons were found in the property in question. Brahm Dev said that he never sold the properties to the accused persons. It is clear from the FSL report Ex.PW8/A that the document is forged. Complainant purchased the property from Brahm Dev who gave physical possession to him. There is a corroboration between the complainant and public/material witnesses. Documentary evidence and the witnesses of prosecution have supported the case of the prosecution. Nothing was brought in the defence evidence. The findings of the Ld. Trial Court is neither based on assumption or presumption nor erroneous or contrary to law. It would have been contrary if Brahm Dev would have sold the property to both the parties i.e. accused persons and the complainant which is not in this case. Therefore, there is no illegality in the impugned judgment and order on sentence passed by the Ld. Trial Court.
8. Ld. Counsel for the complainant / Dilip Kumar, in the written submissions stated that on the tehrir of complainant, FIR u/s 420/468/471/448/34 IPC was registered and challan was filed on 28.08.2000. On 15.07.2000, the complainant purchased H. No. 241, Gali Sunarowali, Halkara Kuan, Jwala Nagar from one Bhrahm Dev. Out of total nine rooms and two kitchens in the said house, Bhrahm Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 5 of 14 Dev gave him physical possession of one room each on ground and first floor and remaining seven rooms and two kitchens were in possession of nine tenants who were instructed by Sh. Bhram Dev to pay rent to complainant. Complainant put his lock on two rooms and after meeting all the tenants, went to his house. On 14.10.2000 when he reached there, accused persons namely Smt. Sarla Devi, Ved Prakash, Ram Prakash, Dharam Prakash and Smt. Chandro Devi put their lock and told the complainant that they had already purchased the said property from Bhram Dev on 07.03.2000 and also showed power of attorney purportedly executed by Bhram Dev in their favour. Bhrahm Dev gave ex parte divorce to his wife Smt. Sarla Devi. Bhram Dev has another property bearing No. 278/8, Halkara Kuan, Jwala Nagar, Shahdara Delhi and the eviction order has already been passed by Ms. Nisha Saxena, Ld. ADJ, KKD, Courts, Delhi. Accused Smt. Sarla Devi had made forgery on all the papers due to which the FIR was registered u/s 420/468/471 IPC dt.27.04.2018 PS Vivek Vihar. The FSL report dt.19.04.2001 also favour the version of complainant and is against all the accused persons. The testimony of PW3 Raj Pal supports the case of the prosecution and is against all the accused persons. The accused persons are habitual offenders.
9. The Ld. Counsel for the complainant orally argued that the accused persons are habitual offenders who are wife and sons of Brahm Dev. Wife of Brahm Dev is already divorced. The documents were prepared intentionally after the divorce. Electricity bill is in the name of Brahm Dev. The documents of the appellants are notarized.
Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 6 of 14 Whereas, the documents of the complainant are registered documents and electricity bills are only for the property bearing No. 241. The property bearing No. 421 is only to misguide and no document of the property No. 421 produced by the appellants. The prosecution has already proved its case against the accused persons/appellants before the Ld. Trial Court.
10. Perusal of record reveals that vide impugned judgment dt.17.11.2016, the Ld. Trial Court observed that when the original GPA purportedly executed in favour of the accused persons by the Braham Dev was sent to FSL, it was found that Braham Dev had not signed as executant on GPA. Accused Smt. Sarla Devi had misled the two witnesses to the forged GPA in signing the same as witnesses. Accused persons claimed the ownership of property in question on the basis of that forged document, used the forged document as genuine, as such, the Ld. Trial Court held the accused persons guilty for the offence u/s 471 IPC and accordingly convicted them. Ld. Trial Court held that it is proved from the record that accused Smt. Sarla Devi had fraudulently caused Data Ram and Rajpal to sign this document by practising the deception upon the witness and held that she is guilty of making a false document and hence liable to be punished for forgery u/s 465 IPC. Accused Ved Prakash stated in his disclosure statement to the IO that he had forged the signatures of his father Braham Dev on Ex.PW2/A but for this purpose, no evidence has been collected during the investigation, as such, the Ld. Trial Court held that accused Ved Prakash cannot be convicted for Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 7 of 14 committing forgery. Accordingly, the Ld. Trial Court convicted all the accused persons-therein except the accused Smt. Sarla Devi for the offence punishable u/s 468 IPC. Ld. Trial Court acquitted all the accused persons for the offence u/s 448 IPC since the complainant failed to prove his actual physical possession of the property at any point of time. Vide order on sentence dated 23.12.2016, all the convicts were sentenced to fine. All the convicts were sentenced to pay a fine of Rs.15,000/- each IDSI 6 months for the offence u/s 471/34 IPC. Convict Sarla Devi was sentenced to pay a fine of Rs.15,000/- IDSI 6 months for the offence u/s 465 IPC and convict Chandro Devi was sentenced to pay fine of Rs.10,000/- IDSI 4 months for the offence u/s 471/34 IPC. Out of total fine of Rs.85,000/-, Rs.60,000/- was to be paid as compensation to the complainant Dilip Kumar. Vide order dt. 04.01.2017 of the Ld. Trial Court, the total fine amount of Rs.85,000/- was paid on behalf of all the convicts vide receipt No. 350517-21.
11. It reveals from the prosecution evidence that Dilip Kumar who examined himself as PW1, purchased the house No. 241, Gali No.6, Jwala Nagar, Delhi from Brahm Dev for an amount of Rs.1,25,000/- on 15.07.2000. Brahm Dev handed over the possession to him for one room at ground floor and one room at the first floor and in the remaining portions, some tenants were residing. He locked the rooms in his possession but when he reached the aid house on 14.10.2000, he found the rooms were not locked with the same lock with which he locked and the lock was changed. He asked Smt. Sarla Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 8 of 14 Devi / accused about changing of the lock but she disclosed that they had purchased the said house from Brahm Dev on 07.03.2000 for Rs.2,00,000/- and she also shown him some papers regarding the transaction. The other accused persons were also present at that time. When Dilip Kumar said that he is the owner of the said premises, accused persons started abusing him. However, he left the premises and he asked Brahm Dev about the aforesaid facts. Brahm Dev told him that he had not sold the said premises to any one except Dilip Kumar and the accused persons had prepared forged papers regarding the transaction of the said purchase of the premises and also committed trespass at his house.
12. Brahm Dev examined himself as PW2 and stated in his testimony that he was the sole owner of the house No. 241 (New No.
421), gali Sunarowali, Halkara Kuan, Jwala Nagar, Shahdara, Delhi. He sold the above said house to Dilip Kumar on 15.07.2000 and also gave the possession of the said house of two rooms to Dilip Kumar. PW2 also deposed in his testimony that he never sold the above said property to Ved Prakash, Ram Prakash, Dharam Prakash, Smt. Sarla Devi and Smt. Chandro Devi. PW2 further deposed in his testimony that he never put his signatures on the GPA dt. 07.03.2000 Ex.PW2/A and he has not put any signatures on the said General Power of Attorney. PW2 also stated that police took his specimen signatures on four pages on the documents Ex.PW2/B, Ex.PW2/C, Ex.PW2/D and Ex.PW2/E. PW2 stated that the said GPA Ex.PW2/A is a forged one. PW2, in his cross-examination denied that on 07.03.2000, he sold the Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 9 of 14 property to Ved Prakash, Ram Prakash, Dharam Prakash, Smt. Sarla Devi and Smt. Chandro Devi. PW2 also denied that he had put his signatures on the document Ex.PW2/A General Power of Attorney dt. 07.03.2000. However, PW2 admitted that a civil suit is pending in the civil court in respect of the above said property No. 241.
13. Sh. Rajpal examined himself as PW3 and stated that Bram Dev did not sign on the GPA Ex.PW2/A in his presence. However, PW3 signed the said document as witness. Data Ram examined himself as PW4 who also stated to be witness to GPA Ex.PW2/A. PW4 stated that in his presence no one signed on the said GPA. PW4 further stated that Brahm Dev did not sign the said GPA in his presence. However, PW4 signed the said GPA in good faith and being neighbour. PW5, 6, 7 and 9 are the police witnesses.
14. Sh. Harsh Vardhan, Assistant Director (Documents), FSL, Haryana, Madhuban, Karnal examined himself as PW8 and stated that the documents of this case were sent by the SHO, Vivek Vihar vide memo No. 376/SHO/VV dt.19.03.2001. PW8 further stated that after careful and thorough examination of the question signature Mark Q1, Q1/1, Q2 on Ex.PW2/A and specimen signature Mark S1 to S4 on Ex.PW2/B to E, he is of the opinion that the person who wrote red enclosed signatures stamped and marked S1 to S4 did not write the red enclosed signatures similarly stamped and marked Q1, Q1/1 and Q2. The detail reason for the above said opinion has been expressed in his opinion which is Ex.PW8/A. Ex.PW8/A reveals that PW8 gave his opinion that diversions are observed in the execution of various Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 10 of 14 characteristics between specimen signature on one hand and the questioned signatures on the other hand. During cross-examination, PW8 denied that the two writings by the same writer are bound to differ. PW8 further denied if the writer attempts to make them differ, he could do this. PW8 also stated that he has filed his report on the basis of original having been sent by the IO. When the questions were put to PW8 during cross-examination that in his opinion which is Ex.PW8/A, it is silent about the class characteristic and the line quality, PW8 answered that there are fundamental divergences which are beyond the range of natural variation and intended disguised and as such the class characteristics are also different among standard and questioned signatures. PW8 also stated in his cross-examination that line quality examination is important in the case of traced forgery and in some cases where the free hand forgery has been done but not in all cases. When the question was also put to PW8 in his cross- examination that what is the difference between fundamental divergence and disguise, PW8 answered that in disguised writing, there is lack of consistency among the character, however, there are several free strokes which have appeared as lapses despite the consciousness on account of force of habit. On the other hand, fundamental divergences are those divergences which are beyond the range of natural variations and intended.
15. Sh. V.C. Mishra, Forensic Handwriting Fingerprint Expert, 1107, Tower-1, Parsvnath Magestic, Vaibhav Khand, Indra Puram, opposite Shipra Mall, Ghaziabad, UP examined himself as DW1 and Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 11 of 14 stated that he is practising as document expert for the last 24 years and he has submitted his opinions for Indian Army, Indian Airforce, Delhi Police and in some cases he was required by the court to submit reports on behalf of the prosecution. He also stated that he has submitted opinions in various law courts of India and abroad. He tendered his report as Ex.DW1/1. During cross-examination, DW1 stated that if a person will practise to copy one genuine signature he can produced the artificial similarity. DW1 voluntarily stated that but such artificial similarity would show close resemblance with the model with lying quality defects and he will never deviate from the model genuine signature if the disputed signature is deviated from the admitted genuine model, it will be a case disguised signature and not at all will be called copied signature. DW1 denied that he has prepared report in favour of the accused in collusion with the accused to save him in the said case. Sh. Jagdish, Ahlmad from the court of Ms. Bhawani Sharma the then Ld. CCJ/ARC, Shahdara, Delhi was examined as DW2 who brought the summoned record of the case file bearing No. 514/09 titled "Dalip Kumar Versus Brahm Dev" having affidavit of Sh. Braham Devi which is already Ex.PW2/1 dated 03.08.2004, Agreement to Sell dt..15.07.2000 already Ex.P-4, General Power of Attorney already Ex.P-1, affidavit already Ex.P-6, possession letter already Ex.P-7 all the documents dt. 15.07.2000, Cross-examination of PW2 Braham Dev dt. 03.08.2004, cross- examination of Sh. Dilip Kumar PW1 dated 21.11.2003 and 08.12.2003 and certified copies of all documents are Ex.DW1/1 to Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 12 of 14 Ex.DW1/8 respectively. In his cross-examination, DW2 stated that he is posted in the court of Ms. Bhawani Sharma, Ld. CCJ/ARC Shahdara, Delhi since 01.04.2014. DW2 admitted that he does not know anything else regarding the proceedings of the case file bearing No. 514/09 nor said case file was remained in his possession since 01.04.2014. DW2 also admitted that he does not have any personal knowledge regarding the fact of case file bearing No. 514/09.
16. In view of the facts and circumstances of the cases, documents on record, evidence of the parties, written arguments and oral arguments as well as the above discussions, I am of the considered opinion that the prosecution has been able to prove before the Ld. Trial Court that the aforesaid property bearing No.241, Gali No. 6, Jwala Nagar, Delhi was purchased by complainant Dilip Kumar/ PW1 from the owner Brahm Dev. PW2 Brahm Dev also proved in his evidence that he is the owner of aforesaid property bearing No. 241 and the same was sold to PW1 on 15.07.2000. He also proved on record that he never sold the said property to the accused persons nor put his signatures on the GPA dt. 07.03.2000 Ex.PW2/A. The prosecution has also been able to prove before the Ld. Trial Court that GPA Ex.PW2/A is the forged one and the accused persons dishonestly and fraudulently used the said document as genuine document. Further, PW3 proved by way of his testimony that Brahm Dev did not sign on Ex.PW2/A in his presence but he signed it as witness. PW4 also proved that no one signed in his presence the document Ex.PW2/A i.e. Power of Attorney. PW8 FSL Expert has Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 13 of 14 also supported the case of the prosecution by his expert opinion as discussed above. Therefore, the grounds taken by the appellants in this appeal are devoid of any merits since the Ld. Trial Court while passing the impugned judgment dt.17.11.2016 considered and perused all the materials, documents and evidence on record. Thus, I do not find any illegality or infirmity in the impugned judgment dt.17.11.2016 and also the order on sentence dt. 23.12.2016. Accordingly, this appeal is dismissed. Out of the amount of Rs.85,000/- deposited as fine in compliance of the impugned order, an amount of Rs.60,000/- is to be paid to the complainant Dilip Kumar as compensation. A copy of this Judgment be supplied to the appellants. Trial Court record along with copy of this Judgment be sent back. File of appeal be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2020.12.09 19:08:27
+0530
Announced in the open court (YASHWANT KUMAR)
today on 09th December 2020 Principal District & Sessions Judge Shahdara, KKD Courts, Delhi Crl. Appeal No. 04/17 Ved Prakash & Ors. Vs State Page No. 14 of 14