Delhi District Court
State vs . Rajinder Singh Dang & Ors. on 25 November, 2013
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IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE08,WEST DISTRICT, DELHI
STATE VS. Rajinder Singh Dang & ors.
FIR NO: 186/99
P. S. Kirti Nagar
U/s 420/120B IPC
Unique ID No. 02401R1250082006
JUDGMENT
Sl. No. of the case : 1470/1(14.06.01) Date of its institution : 11.08.2000 Name of the complainant : Sh.Amrik Singh Date of Commission of offence : 08.09.1996
Name of the accused : 1. Rajinder Singh Dang S/o Sh. Kartar Singh R/o C204, Brotherhood apartment, H3 Vikaspuri, Delhi
2. Gurdeep Singh Dang S/o Sh. Kartar Singh r/o G76A, Mansarover Garden, Delhi.
3. Sukhvinder Kaur w/o Gurdeep Singh r/o G76A, Mansarover Garden, Delhi Offence complained of : U/s 420/120B IPC FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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Plea of accused : Pleaded not guilty Case reserved for orders : 12.11.2013 Date of judgment : 25.11.2013 Final Order : Convicted
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused persons upon the police report filed by P.S. Kirti Nagar U/s 420/120B IPC.
2. The complainant on which the present case was registered is reproduced to appreciate the real controversy between the parties. Complainant made the complaint ExPW1/A in the police station wherein he stated that he was running a printing press in premises no. T481/4, Baljeet Nagar, Behind police station, New Delhi under the name and style of M/s commercial Art printers. He was worried due to the Supreme Court orders because he had no place to move his printing press outer Delhi. Taking advantage of his worries Gurdep Singh started sympathising with him . One day the aforesaid Sh. Gurdeep Singh alongwith his wife came to his residence and said that they have high connections and is doing the business of finance and reinvestment of monies. Gurdeep Singh further told him that he could arranged for factory plots/sites and also told FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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to him that he has many foreigners known to him and he has a good cliente of arranging visa to various countries. Gurdeep Singh suggested him that he should send his son to USA for which he would arrange VISA . He also told him that he had an office in London which is being looked after by his manager. The representation and reflaxes of both Sh. Gurdeep Singh and his wife were so fast and alluring that he (complainant) bonafidely believe them as true. He further mentioned in his complaint that Gurdeep Singh started coming to his factory and won his confidence as he always came well dressed and on a well maintained car. As he had worry of his factory being shifted , he started trusting and believing in the talks of Sh. Gurdeep Singh. On 08.09.1996 Gurdeep Singh again impressed upon him that he should think of his future and send his son to abroad. This time accused Gurdeep said that he can arrang VISA for UK and also told him that once his son would be in that country he would slowly remove his manger by replacing his son because in couple of weeks his son would be able to get conversant with that country. Gurdeep Singh further told him that he would immediately start completing the formalities for getting VISA from UK Embassy and invited him and his son at his residence in the evening where Gurdeep Singh and his wife told that they FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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have been very good connection in UK Embassy and arranging VISA for his son for going to UK and he would have to arrange Rs. 2,50,000/ and pay the amount to Gurdeep Singh as advance for arranging VISA for his son to UK and also give two photocopies of the passport and complete particulars the next day alongwith money. As he (complainant) was worried about his future, he fell wrapped and started hoping at least his son would get settled in UK after going there and he and his son both went to the house of Gurdeep Singh very next morning and gave Rs. 2,50,000/ in cash to Gurdeep and his wife and two sets of photocopies of passport and two passport size photograph and the brief history of his son. When he asked for receipt against the money paid by him, Gurdeep Singh and his wife told that he was very innocent and told him that for these kinds of thing no receipt is issued as the money is to be spent at different persons for the getting VISA. Two persons Sh. Rakesh Gera and Sh. Jaspal singh Sawhney whose name he learnt subsequently were also sitting in the house of Gurdeep Singh. After he paid the money to Sh. Gurdeep Singh, Gurdeep Singh promised him that he will be able to let him know about the exact date of the visit of his son to UK embassy with in 23 days. It may be mentioned that when he had to the house of Gurdep FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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Singh for paying the money , he was exchanging heated words with the said two persons and since he had curiosity to know the reason, Smt. Sukhvinder Kaur told to him in confidence that those two persons were making noise due to some dispute regarding sale of property. After 23 days Gurdeep Singh came to his factory and said that he has been able to get assurance that VISA will be arranged but the same would be after they give him the original passport of his son. He also told to him that he may get sponsorship letter within 15 days by courier from UK at his residential address and the same would be arranged from his London office. When he wanted to know about the source Gurdeep Singh immediately reported that he put too many questions and he should only concern about the job. In the evening of 12/13 September 1996 Gurdeep Singh and his wife came to his house and took the passport of his son and he was assured that the VISA will be arranged soon after the arrival of sponsorship letter from his London Office. They (complainant and his son) started waiting for sponsorship letter from London office but they did not hear anything or received any communication from any person. Even Gurdeep Singh did not turn up for 1015 days and on or about 2/3.10.1996 he went to the house of Gurdeep Singh and on enquiry about the VISA FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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Gurdeep Singh told him that he was involved in some litigation and remained very busy in that and also told him that it would take about 23 months to arrange VISA as his London office was facing some problems . Gurdeep Singh immediately took the passport from the almirah and handed over to him and when he asked Gurdeep Singh to return the money , Gurdeep Singh told him that he should not worry about the same as it would be refunded if the VISA of his son is not arranged in 23 months. In the middle November 1996 Gurdeep Singh came to him and told that he has some important piece of work at Calcutta and would try from their to help him for getting the VISA of his son. On 24.11.96 he received a telephone call from Sukhvinder Kaur that he should reach Calcutta by the first available flight and carry with him atleast Rs. 50,000/ as has arranged job for his son in UK . He told to Smt. Sukhvinder Kaur that he has not so much spare money with him at that moment. Then Smt. Sukhvinder Kaur suggested him that he should borrow the same from some one and does not miss the chance . As he found prospects for his son he somehow arranged the money and went to Calcutta by next day morning. On 25.11.96 he arrived at Calcutta and reached at the address which Smt. Sukhvinder Kaur had given him. It was the brother's house of Gurdeep Singh and at that FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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time Gurdeep Singh was sleeping and when he inquired about the same his elder brother told him that he had a very high blood pressure late last night so the doctor had advised him complete rest. Later on , Gurdeep Singh told him that he has made all arrangement for the VISA and job of his son in UK and one gentleman is coming for that purpose at 12 noon. AT 12 noon one Bengali gentleman came and introduced to him as Mr. Majumdar. He was told that the money is to be paid to Mr. Majumdar and he should be grateful because Majumdar would be able to get the job of his son in UK and the clearance of VISA formalities. He told to Gurdeep Singh that he only brought Rs 50,000/ out of which he only pay Rs. 40,000/ as he also returned back to Delhi and after some discussions with Gurdeep Singh and that Majumdar agreed to accept Rs. 40,000/ for the time being and the balance would be sent through some one in a weeks time. On 26.11.96 he (complainant) and Gurdeep Singh returned to Delhi and went to their respective houses and thereafter Gurdeep Singh never met him and started avoiding him whenever he tried to contact him. He got suspicion and started demanding the money from Gurdeep Singh but Gurdeep Singh kept on promising him to get the VISA and since he had no receipt of the money he had no option but to continue to wait FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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. In the last week of February 1998, he went to the house of Gurdeep Singh and pleaded with folded hands to return his money. He (Gurdeep Singh) point bland told to him to get out of his house and he and his wife started abusing him in filthy language and when complainant said that he will report the matter to the police , Smt. Sukhvinder Kaur openly challenged him to do so and said that police is not a problem to them as already many persons have filed cases against them and so far no body could touch them. Sh. Gurdeep Singh threatened him that since he have talked about police and he would be taught lesson and find himself lend in police station very soon.
3. This is the case of prosecution presented from the complaint itself. After completing the formalities, the investigation was carried out by police station Kirti Nagar and a chargesheet was filed against all the accused persons for offences U/s 420/120B IPC. The accused persons were stated the substance of offence committed by them to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined eight witnesses.
FIR No. 186/99STATE VS. Rajinder Singh Dang & ors.
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5. PW1, is complainant Amrik Singh himself. He has corroborated his complaint Ex. PW1/A, the contents of which were reproduced earlier. He proved that the accused Gurdeep Singh had induced him to pay Rs. 3 Lacs on the pretext of sending his son to UK. This money was paid in two installments. Rs. 2.5 Lacs were paid in the first week of September 1996 and Rs. 40,000/ was paid in Calcutta on 25.11.96. However the accused Gurdeep and others were unable to send his son to UK nor returned his money.
6. PW2, Balvinder Singh is the son of the complainant . He has corroborated the testimony of PW1. According to his testimony he was witness of paying Rs. 2.5 Lacs by complainant to accused Gurdeep Singh at his house.
7. PW3, Rakesh Kumar is a person who is having some business dealings with the accused Rajinder Singh. According to his testimony at one point of time when he went to the house of accused persons he saw that complainant was having some talks with accused Rajinder Singh and other persons.
8. PW4, Inderjeet Singh has proved that he lend Rs. 25,000/ to the complainant and went to the house of accused Gurdeep Singh where complainant paid Rs. 2,50,000/ to the accused Gurdeep Singh.
FIR No. 186/99STATE VS. Rajinder Singh Dang & ors.
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9. PW5, Avtar Singh Mahn is a witness of some other incident but since he was hostile to the prosecution, his testimony is not relevant to the prosecution case.
10. PW6 and PW7 are the police witnesses. PW7 is the investigating officer in this case who proved the investigation in the present case.
11. This is the overall prosecution's evidence in this case.
12. After the prosecution's evidence was closed, accused persons were examined U/s 313 Cr.PC wherein all incriminating evidence were put to the accused persons which they denied. The accused persons examined three defence witnesses.
13. The accused Gurdeep and Sukhvinder deposed in SA u/s 313 Cr.P.C that their were family relations between them and the complainant and the complainant used to take the jewellery articles and other household articles and his Zen car but the same was not returned by the complainat to them and due to this the relations between them became worse. They also stated that on 10.03.98 when accused Gurdeep Singh returned from the market the complainant attacked on him and on his family and lodged a complainant in PS Kirti Nagar by the accused Gurdeep. The said report is Mark A.
14. Accused Rajinder Singh stated that he has never met FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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with the complainant Amrik Singh and complainant had never visited his house at Calcutta nor the accused Gurdeep Singh ever visited his house. He further stated that he has been falsely implicated in the present case so that he may not be able to help his younger brother for defending him in false case.
15. After the conclusion of trial the final arguments were addressed from both the sides.
16. Ld. APP has argued on behalf of the state that the case of the prosecution has been proved beyond reasonable doubts by the witnesses examined on its behalf.
17. I will deal with the defences raised by Ld. Defence counsel one by one.
18. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
19. The case of prosecution is that all the accused persons in furtherance of their criminal conspiracy cheated the complainant by fraudulently inducing him to deliver Rs. 2,90,000/ on the pretext that his son will be sent to UK for work by arranging VISA etc. The main witness and the victim of FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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the offence in this case is the complainant Amrik Singh. I have already discussed the complaint filed by him in detail earlier. The testimony which he has given in the court is almost the same and corroborates the allegations of the complainant in all material particulars . Even in his evidence he has proved that the accused Gurdeep Singh and his wife Sukhvinder Kaur suggested him to send his son to UK and that he will arrange VISA for his son. He further deposed that in the first week of September 1996, he alongwith his son and nephew Inderjeet Singh went to the house of the accused Gurdeep Singh and paid Rs 2.5 lacs. He also proved that later on he paid Rs. 40,000/ in Calcutta to the accused Gurdeep Singh where he was called by the accused Gurdeep Singh through his wife. The inducement turned to be fraudulent because later on it was found that the Gurdeep Singh started avoiding the complainant , had not arranged any VISA and misappropriated the money paid by the complainant. The complainant is the victim of offence in the present case. He has categorically deposed about the manner in which the offence was committed by the accused persons. There is nothing in his cross examination which can discredit his testimony or can impeach it. For appreciating the testimony of the such a witness whois a victim of an offence it has to be kept in mind that the whois a victim of an offence it has to be kept in mind that t FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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evidence of such a witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo type investigation. It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigation officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. By and large a witness cannot be expected to possess a photographic memory and to recall the details of the incident. It is not as if a video tape is replayed on the mental screen. In regard to exact time of an incident, or the time duration of an occurrence their estimates by guess usually people make work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimate in such matters. Again, it depends on the timesense of individuals which varies from person to FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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person. In view of theses propositions of law it is clear that the testimony of the injured witness stands on a very high footing unless and until impeached by some clinching evidence. In the present case also the injured PW1 has categorically deposed the manner in which the cheating took place with him. He is the victim of the offence in the present case. He is the best witnesses to describe the manner in which the offence was committed by accused persons which he indeed did if we look at his evidence. Since the complainant is the victim of the offence, it would require very convincing circumstances to discard the evidence of this witness particularly when the story propounded by him seems to be most probable. The testimony of this witness does not appears to be embellished or embroidered in respect of the offence committed. In the present case, therefore the occurrence of the offence is proved by the complainant and there is no good reason to discard his testimony which is found to be consistent and reliable and also inspires confidence. A minute scrutiny of the testimony of complainant reveals that it has passed the test of reliability and his version is natural, probable, coherent and cogent. Therefore I am of the view that the testimony, of this witness inspires confidence and the probative force in his testimony is so strong FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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so as to convict the accused persons for the alleged offence subject to the tenability of the defence of the accused persons.
20. The testimony of the complainant PW1 is duly corroborated by the testimony of his son PW2 Balwinder Singh. He deposed that on 09.09.96 he alongwith his father and cousin went to the house of accused Gurdeep Singh with Rs. 2.5 lacs. His father asked Gurdeep Singh to issue a receipt for which accused Gurdeep Singh refused. He also deposed that his father borrowed Rs. 25000/ from his cousin Inderjeet Singh.
21. The testimony of PW1 and PW2 regarding payment of Rs. 2.5 Lacs is further corroborated by PW4 Inderjeet Singh who according to the case of prosecution is an eye witness to the fact of paying money Rs. 2,50,000/ to the accused Gurdeep Singh at his house and he also deposed that complainant Amrik Singh borrowed Rs. 25000/ from him for this purpose.
22. Witnesses of police has proved the investigation of this case.
23. The witness Avtar Singh PW5 had turned hostile to the prosecution. Not only to this his testimony is not related to this complaint and therefore not helpful for the adjudication of the dispute in the present case. He also stated that since he has settled the matter with the accused persons and he received his FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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money around Rs. 6.5 Lacs he has not stated anything against the accused persons. AS per the case of prosecution he was also cheated by the accused persons and he has also made a separate complainant to the police.
24. The witness Rakesh Kumar's testimony is not much relevant to the prosecution case except that he is a witness to the fact that the accused Rajender Singh and complainant Amrik Singh have some money transaction discussions.
25. Before finally concluding I will discuss the defences raised by Ld. defence counsel.
26. The first defence is that there is no documentary proof that the complainant paid Rs. 2,90.000/ to the accused persons. There is no documentary evidence to show the source of money with the complainant. There is no documentary evidence that the complainant went to Calcutta. There is no documentary proof that for the application of VISA complainant has failed some documents. So is also not a case of prosecution. Prosecution case is not otherwise. Admittedly the whole case of the prosecution is based on the oral testimony of the witnesses. This defence raises a legal issue that whether the accused persons can be convicted on the basis of the oral testimony of the complainant and other witnesses. The oral testimony of the FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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complainant and other witnesses proves that that the complainant was fraudulently induced to part with his money. To counter this oral evidence, there is no contrary oral evidence of the accused persons. None of the accused persons had examined himself in the court to refute the allegations of the complainant thereby not making them subject to the cross examination on behalf of the state. An evidence can be oral as well as documentary. It is no law that the documentary evidence carries more weight then the oral evidence. It is always a matter of facts and circumstances of the case. There was no documentary evidence available in this case and therefore there was no question of its production. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. Vs. State of Jharkhand (2003 2 SCC 20 401, Hon'ble Supreme Court had classified the oral testimony of the witnesses into three categories" a. Wholly reliable;
b. Wholly unreliable; and FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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c. Neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
27. The strength of pursuation of witnesses, the probative force in their testimony and the strength of pursuation of a judge as to given facts or as to the case as a whole are matters of degree. The judge while deciding a controversy needs to gauge the strength of pursuation of each witness about his own testimony. The task of a judge is to assess the probative force of a relevant evidence in terms of the degree of pursuation that it produces in his mind. The probative force in the testimony of a witness depends upon many internal and external securities for ensuring the trustworthiness, the completeness and accuracy of his testimony. This will also depends upon discrediting the witness by the tool of cross examination and counter evidence. The Court has also to see whether there are grounds of suspicion of the trustworthiness of the testimony on the ground of interest or for other reasons. If are there any other infirmities suppositions in the testimony or in any other particular evidence that run counter to the evidence of witness. Example if the FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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testimony is tested under cross examination, it reveal any internal inconsistencies. Is there any other evidence which makes it improbable/less probable and that weakens the probative force. If there are no such disprobablizing or infirmative suppositions then the testimony of witness is conclusive. To sum up; each piece of testimony is subject to a number of tests.
First, how confident is the witness regarding the truth in his testimony;
Second, how comfortable is the testimony of the witness to general experience;
Third, are there any ground for suspicion of the trustworthiness of the witness;
Fourth; is the testimony supported is doubted by any other special or particular evidence.
The degree of pursuation of a judge about the case as a whole is a function of probative force of all positive evidence minus the probative force of all infirmative suppositions.
The complainant of the present case has orally proved the allegations made by him. There is no counter testimonies of the accused persons . General experiences shows that the nature of complaint made is not very rare and people are many times FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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duped in the way complainant is duped and therefore in all probabilities the complainant could have been cheated in the way he alleges. Whatever evidence , the complainant could have produced , he actually produced because he has been pursuing this case since 1999. His patient pursuit to justice for last more than14 years lends credibility to his evidence and the fact that he is pursuing a right cause because generally such a protracted trial is sufficient to destroy the confidence of a frivolous litigant. His oral testimony inspires confidence when tested on the touchstone of the law discussed above. Therefore, in view of the aforesaid discussion, considering the testimony of complainant and other witnesses there is no doubt he was cheated with a sum of Rs 2,90,000/ which he was lured to part with and there is no counter evidence, infirmities in his examination to discredit him, he is found to be a reliable witness, worth believing, there is no harm in coming to the conclusion the he is able to prove his case beyond reasonable doubt. One interesting thing that can be noted here is that the accused persons also made a complainant against the complainant regarding the misappropriation of of some jwellery and car and the accused persons themselves had not taken any documentary acknowledgment regarding the entrustment FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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probably due to the relations between the parties then such a faith can also be expected from the complainant.
28. The next defence is that there is a delay of three years in lodging the FIR. I am of the view that the delay has been reasonably explained. Ld. APP for the State has argued that both the complainant and the accused persons are of the same community and the accused Rajinder Kaur had made the complainant, her brother . All these dealings were done in good faith. It is argued by Ld. APP for the State that the matter was not reported to the police only due to the regard of relations between the parties and in the anticipation that the accused persons will return the money. It was only when the relations become severely strained and the accused persons had filed the false complaint against the complainant regarding misappropriation of jewellery and car, then only complainant decided to lodge a complaint to the police.
29. One of the defences of ld. defence counsel is that the present complaint of the complainant is a counter blast to a complaint filed by accused persons against the complainant. Ld. APP refutes this argument stating that the complaint filed by the complainant was with the sole intention to create a defence and that is the only reason the accused had not pursued the FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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complaint with the police or the court.
30. Be that as it may, the complaint filed by the accused persons has not been proved on record and the fact that this complaint has not been pursued further shows that it might be possible that it was lodged with the sole motive of creating a defence. Therefore in these circumstances , I am of the view that the in the facts and circumstances of the case and the relation between the parties the delay in lodging the FIR was nothing but natural.
31. The next defence counsel is that there are no independent witnesses who support the case of prosecution. I agree with Ld. Defence counsel but the nature allegations of prosecution are such that there is no question of availability of independent witnesses. Therefore simply because there are no prosecution witnesses in the prosecution case, it is not sufficient to throw out the case of the prosecution. In the facts and circumstances of the present case, I do not think that non joining of independent witnesses could be a decisive factor to acquit the accused. It has been a matter of common experience that the public persons are not interested to be made witnesses in criminal cases when they have no concern or interest in the outcome of the case. In the current days of deteriorating law and FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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order situation currently prevalent in the society, strict compliance of the rules regulating search and seizure demands a rational approach. Very few local witnesses have the courage to depose against their powerful neighbours or habitual miscreants obviously for fear of life and honour. In almost all cases local or public witnesses come to the court to say that they signed blank papers on the asking of the law enforcing agency and they did not see the recovery of incriminating articles. A rigid view on the rules of search and seizure should not be blown to far, else we may be strayed in wilderness. In the absence of any special reason evidence of investigation related officials may be safely acted upon.
32. Hon'ble Supreme Court of India in Appabhai v. State of Gujarat ( AIR 1988 SC 696) has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
33. The next defence of the Ld. defence counsel is that the defence witnesses are also reliable. As far as legal preposition is concerned it is a settled law the defence witnesses are entitled to equal weight as attached to the testimony of prosecution witnesses and that the accused has to prove his defence only by way of preponderances of probabilities.
35. Now there are two main defence witnesses. DW1 is Jagan Kumar who simply proved that the accused Gurdeep Singh was having a business of Shirt operated through his shop and DW2 Ms. Manjeet Kaur is the mother in law of accused FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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Gurdeep Singh. She proves the relationship between the parties which corroborates the case of the prosecution in respect of the relation and mutual understanding which the parties were having at the time of incident. However her evidence does not seems to be of any help to the defence because it is not the case of the prosecution that the accused Gurdeep Singh was running a travel agency which she refuted in her evidence.
36. This brings me to last limb of this judgment regarding the liability of individual accused persons. The accused persons are charged with the offences of cheating and criminal conspiracy. As far as the accused Rajinder Singh is concerned, there is no direct evidence that he dishonestly induced the complainant . The prosecution has chargesheeted him for the offence u/s 120B IPC. The rule of evidence for proving criminal conspiracy is provided u/s 10 of Indian Evidence Act. Under this provision there should be a reasonable ground for believing the existence of the criminal conspiracy when anything said or done by the conspirators in reference to their common intention can be an evidence of such conspiracy. Now in the present case the only evidence against the accused Rajinder Singh is that he has welcomed the complainant in Calcutta. This is not sufficient to come to the conclusion that the accused Rajinder Singh was the FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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part of a criminal conspiracy with other accused persons. However as far as the accused Gurdeep and Sukhvinder Kaur is concerned there is sufficient evidence that they are in agreement to cheat the complainant. Complainant has deposed that the accused Gurdeep Singh alongwith his wife came to his residence and invited him with documents like passport etc on the pretext for sending his son to abroad. It is in testimony of a complainant that it was accused Sukhvinder Kaur who asked the complainant to go to Calcutta with Rs. 50,000/.There is direct evidence of dishonest inducement of accused Gurdeep Singh. Therefore it can be concluded that there is no evidence against the accused Rajinder Singh for the offence with which he is charged. There is sufficient evidence against the accused Gurdeep Singh for the offences u/s 420/120B IPC. There is no evidence against the accused Sukhvinder Kaur for the offence u/s 420 IPC as she has not directly induced the complainant but there is sufficient evidence against her that she engaged in a criminal conspiracy to cheat and has therefor committed an offence u/s 120B IPC.
37. This clinches the issue of guilt of the accused persons. The accused Rajinder Singh is acquitted in the present case and accused Gurdeep Singh is convicted for the offence u/s 420/120B IPC and the accused Sukhvinder Kaur is acquitted for FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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the offence u/s 420 IPC but she is convicted for the offence u/s 120B IPC.
Announced in the open court On this 25th November, 2013 (Samar Vishal) MM08, Tis Hazari Courts, Delhi.FIR No. 186/99
STATE VS. Rajinder Singh Dang & ors.
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IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE08,WEST DISTRICT, DELHI STATE VS. Rajinder Singh Dang & ors.FIR NO: 186/99
P. S. Kirti Nagar U/s 420/120B IPC Order on Sentence Present: Ld. APP for State.
The convicts Gurdeep Singh and Sukhvinder Kaur are present on bail with Counsel Sh. B.B.Sharma Sh. J.S.Kathuria, ld. counsel for the complainant is also present.
I have heard Ld. APP for State Sh. B.B.Bhasin and Ld. defence counsel.
It is submitted by ld. APP for the state that the offence with which the accused is charged is punishable with an imprisonment which may extend to seven years and with fine.
Ld. APP for the State has submitted that substantive punishment be given to the convicts as they have committed the offence in breach of trust which the complainant had on the convicts.
On the other hand, ld. defence counsel has argued that the convicts have three children and the convict Gurdeep Singh is the sole bread earner of his family. It is also submitted that the convict faced a protracted trial of almost 14 years. It is also submitted by the ld. defence counsel that the convicts be released on probation. The FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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plea of probation is opposed by Ld. APP for the State and complainant's counsel stating that the convicts were earlier also convicted for similar offence. Ld. defence counsel submitted that order of conviction was set aside by Ld. Sessions Court. In the facts and circumstances of the case therefore no ground is made out to release the convicts on probation.
I considered the submissions advanced by both the sides. The important question after the conviction of the convicts is the adequacy of sentence. Once a person is tried for commission of an offence and found guilty by the court, it is the duty of the court to impose on him such sentence as is prescribed by law. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The main aim of punishment in judicial thought, however, is the protection of society.
The offence for which the accused Sukhvinder is convicted is section 120B IPC. She is therefore punished with simple imprisonment of six months. The convict Gurdeep Singh be punished with rigourous imprisonment of two years. The convict Gurdeep Singh is also directed to pay compensation of Rs. 6 Lacs to the complainant and in default of payment of t his compensation amount FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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he shall undergo for simple imprisonment of six months. Compensation not paid.
Copy of this judgment and order be given to them free of cost immediately under due acknowledgment. It is also made clear that the sentence in this case shall run concurrently with previous sentence of the accused persons, if any by any court, under section 427 Cr.P.C. Benefit of section 428 Cr.P.C if any be also given to the convicts. Counsel for convicts has moved an application that convicts be released on bail U/s 389 Cr.PC for filing appeal. The application is allowed and the convicts are released on bail for a period of 30 days for preferring appeal against the judgment of this Court subject to furnishing personal bond in the sum of Rs.10,000/ and one surety in the like amount. Sentence shall remain suspended for a period of 30 days. Bail bonds furnished and accepted till next date of hearing.
Convict are directed to place on record the order, if any, of the suspension of sentence by Ld. Appellate Court on next date of hearing. Put up on 20.12.2013.
Announced in the open court On this 26th November, 2013 (Samar Vishal) Metropolitan Magistrate08, WEST, Tis Hazari Delhi FIR No. 186/99 STATE VS. Rajinder Singh Dang & ors.
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FIR No. 186/99STATE VS. Rajinder Singh Dang & ors.