Delhi District Court
3.Title :State vs . Nohar Singh on 29 May, 2012
IN THE COURT OF SHRI RAJESH MALIK: MM (WEST) -05
TIS HAZARI COURTS : DELHI
1.FIR No. :223/1995
2.Unique Case ID No. :R0040361995
3.Title :State Vs. Nohar Singh
etc
3(A).Name of complainant :Sh. Kamla Prashad S/o
Mool Chand @ Mulli, R/o
E-235, J.J. Coloney,
Khyala., Tilak Nagar Delhi.
3(B).Name of accused :1). Subhash Yadav, S/o
Hira Singh, R/o E-237, J.J.
Colony, Khyala, New
Delhi.
2). Nohar Singh, S/o
Sukh Ram, R/o E-489, J.J.
Colony, Khyala, Tilak
Nagar, New Delhi.
4.Date of institution of challan :28.09.1996
5.Date of Reserving judgment :29.05.2012
6.Date of pronouncement :29.05.2012
7.Date of commission of offence :29.03.1994
8.Offence complained of :U/s 468/471/448/420/34
IPC
FIR No. 223/95 1/19
9.Offence charged with :U/s 468/471/448/420/34
IPC
10.Plea of the accused :Pleaded not guilty
11.Final order :AcquittedU/s.
468/471/420/34 IPC.
Convicted U/S 448 I.P.C
JUDGMENT
"There is no penance better than peace, no happiness better than satisfaction; there is no disease worse than greed, and no better dharma than kindness." Chanakya This quoted verse of chanakya is as much as significant today as it was at that time. Ironically, in this civilized world, the human actions are largely controlled by the greed. The facts of the present case depict how the greed gave rise to the facts of the present case. With this, I shall discuss the facts in brief to appreciate the case of the prosecution.
1. THE CASE OF THE PROSECUTION: One Janki Devi was the owner of the property no. E-237, 25 sq. yards situated at J.J. Colony, Khyala, hereinafter mentioned as a property in FIR No. 223/95 2/19 question. She was issueless. The accused Nohar Singh was the tenant of the half portion of the property in question. After long illness, Janki Devi died on 29.03.1994 at her home. After her death, the accused Nohar Singh claimed himself to be the owner of the property in question on the basis of documents purportedly executed by the deceased owner, Janki Devi on 29.03.1994. According to the prosecution case, Janki Devi did not execute any such documents in respect of the property in question because she was on the deathbed on the day of alleged execution of those documents.
2. According to the prosecution, the owner i.e Janki Devi, was admitted in the hospital on 28.03.1994 in worse medical conditions and discharged on 29.03.1994 in the same conditions. She died at home on 29.03.1994, the day when the forged documents had been purportedly executed by her. The accused Nohar Singh being the tenant over the property in question forged the documents by taking thump impressions of the deceased owner on the documents. He further tress- passed into the room of the deceased owner, Janaki Devi, and threw away all her articles on the road.
3. Later on, the accused Nohar Singh further sold the property in question to the accused Subhash Yadav by FIR No. 223/95 3/19 executing GPA, affidavit, deed of agreement and receipt all dated 16.03.1995.
4. Thus, after the death of the deceased owner, two sets of documents laid their claim over the property in question. These two sets of documents have been classified here as first set and second set of documents for further reference in this judgment.
5. First set of documents: It consists of GPA, affidavit, agreement to sell & purchase and the payment receipt all dated 29.03.1994 purportedly executed between the deceased owner, Janki Devi, and the accused Nohar Singh. It purportedly bears the thumb impression of the deceased owner, Janki Devi.
6. Second set of documents: It consists of photocopies of GPA, affidavit, deed of agreement and receipt all dated 16.03.1995 purportedly executed between the accused Nohar Singh and the accused Subhash Yadav. It purportedly bears the thumb impression of the accused Nohar Singh.
7. The criminal justice system was set in motion by Smt. FIR No. 223/95 4/19 Janki's brother-in-law. He made the complaint to SHO on 04.04.1994 but as usual no action was taken on his complaint. He at last made the complaint to the Additional Commissioner of Police, New Delhi, stating therein that the property in question had already been bequeathed in favour of his daughter by way of the will dated 04.03.1994 written by Janki Devi i.e, the owner of the property in question and the accused Nohar Singh and Subhash Yadav had forged the documents. Accordingly, the present FIR was registered on 25.03.1995 after the lapse of almost one year. After registration of FIR, the investigating officer seized both sets of documents from the possession of the accused Subhash Yadav vide seizure memo dated 22.06.1995 Ex. PW-11/A. The investigating officer also seized photocopies from stamp registered page no. 21 to 22 from Gulshan Kumar Behal, Stamp Auditor vide seizure memo dated 10.06.1996 Ex. PW-11/B. He also collected discharge slip of the owner Janki Devi from R.B Jain Hospital and the receipt of cremation ground.
8. After completion of investigation, the police filed the final report against the accused persons under Section 420/468/471/448/34 IPC.
FIR No. 223/95 5/199. CHARGE FRAMED AGAINST THE ACCUSED PERSONS: After hearing the accused and the prosecution, both the accused persons were charged under Section 468/471/420/448 read with Section 34 IPC. They pleaded not guilty and claimed trial.
10. Since, the accused persons have been charged under three different categories of offences, therefore it would be convenient to discuss the prosecution evidence separately in respect of each distinct offence.
11. PRINCIPLES OF LAW GOVERNING THE OFFENCE OF FORGERY UNDER SECTION 468/471 IPC:
a) The accused must have made a forged
document or a part of such document
b) The false document was made to deceit or
intention to deceive and secondly, actual or possible injury cause to some person or persons.
c) The document was prepared for the
purpose of cheating.
d) The forged document is used as genuine
with knowledge or reason to believe that
the document is a forged document.
FIR No. 223/95 6/19
12. Now, I shall discuss whether the facts of the prosecution case fit in the frame of ingredients of the offence under section 468/471/34 IPC. The prosecution in order to prove its case has examined as many as eleven witnesses.
13. The first and foremost question is that whether the first set of documents had been forged. In order to answer this question, let's look at the testimony of PW-3. He is a complaint in this case. He deposed that her sister-in-law Janki Devi rented out half portion of her house to the accused Nohar Singh for Rs. 300/- per month. The owner Janki Devi died in the year 1994. Before her death, she made the will in favour of his daughter. After the last rites of her sister-in-law Janki Devi, he found that the accused Nohar Singh had possessed the remaining portion of the property and threw away all the articles of Janki Devi. The accused Nohar Singh had forged the agreement to sell in respect of the property in question on the day when she expired. She was discharged from the hospital on the day of her death at 3:00 PM. He further deposed that the accused Nohar Singh declared himself to be the owner of the property on the basis of the forged documents on the very next day after the death of Janki Devi. The accused claimed to have purchased the property in question for Rs. 50,000/- from FIR No. 223/95 7/19 the owner i.e, Janki Devi.
In his cross- examination, the defense has not challenged the date of the demise of Janki Devi.
14. Now, let's see the testimonies of PW-5 and PW-6. They were the doctors and treated Janki Devi on 29.03.1994. According to their testimonies, Janki Devi was not able to read and write anything and was also unable to take food orally. The general condition of her was poor and hemoglobin was very low. Both the doctors deposed that the patient Janki Devi was suffering from T.B on abdomen, severe lack of blood, low hemoglobin and swelling over the body. In their cross- examinations, the general medical conditions of Janki Devi had not been challenged by the Defence Counsel.
15. Perusal of these testimonies shows that it is not in dispute that Janki Devi died on 29.03.1994. Now, the question arises whether had she executed the first set of documents before her demise? The first set of documents purportedly bears the thumb impression of the owner Janki Devi. They were witnessed by two witnesses and duly attested by the Notary Public namely. G.D. Dahiya. Attestation before Notary Public suggests that the owner Janki Devi had appeared in person before the Notary Public to affix her thumb impression FIR No. 223/95 8/19 on the first set of documents. Janki Devi had also purportedly received Rs. 50,000/- towards the consideration amount for the sale of the property in question. Undisputedly, she was admitted in R.B Jain Hospital on 28.03.1994 in worse medical conditions. The Ex. PW-6/A i.e, letter head of R.B Jain Hospital, shows that she was admitted in the hospital in bed ridden condition for last 5-6 years and did not take any oral food and on that day i.e, 29.03.1994, she was referred to Government Hospital in the same condition. She died at home on 29.03.1994.
16. Therefore, the medical condition of Janki Devi was not such that she could appear before the Notary Public to affix her thumb impression on the day of execution of the first set of documents and could receive Rs. 50,000/- towards the consideration amount for the sale of the property in question. It means that the first set of documents in respect of property in question was not voluntarily executed by the owner Janki Devi. Nevertheless, the accused Nohar Singh has not averred at any stage during trial that the documents had been voluntarily executed by the owner Janki Devi. In his statement under section 313 Cr. P.C he categorically denied to have purchased the property in question from Janki Devi. Therefore, no one has rebutted the inference that the first set of FIR No. 223/95 9/19 documents had been forged. Accordingly, this court held that the prosecution has proved that the first set of documents in respect of the property in question had been forged.
17. WHO FORGED THE DOCUMENTS: The first set of documents carries the seal of Notary Public namely, G.D. Dahiya, thumb impression of the owner namely Janki Devi and the name of two attesting witnesses. The owner, Janki Devi, died on 29.03.1994. The other attesting witnesses namely Ram Krishan and Mukesh Kumar have not been cited as the witnesses in the list of PWs. The Notary Public G.D. Dahiya could not be traced. Thus, no one who allegedly played a part in the execution of first set of documents has appeared before the court. Importantly, the first set of documents does not carry thumb impression/signatures of the accused Nohar Singh. The Stamp papers bearing no. 27872, 27874 and 27873, upon which the first set of documents were written, had been purchased in the name of Janki Devi by one Inder Singh. Who was that Inder Singh could not be revealed during trial? Hence, in the end, it could not be proved who forged the documents. Thus, the prosecution has failed to prove that the accused Nohar Singh in connivance with the accused Subhash Yadav forged the first set of documents. Hence, the charge under Section 468/34 IPC cannot be sustained against FIR No. 223/95 10/19 the accused Nohar Singh and Subhash Yadav.
18. CHARGE UNDER SECTION 471 IPC: The ingredients of Section 471 IPC are that the forged document is used as genuine with knowledge or reason to believe that the document is a forged document.
19. To bring the case under Section 471 IPC, the prosecution alleged that the accused Nohar Singh having executed the second set of documents used the first set of forged documents to sell out the property in question to the accused Subhash Yadav. As stated above, the second set of documents consists of GPA, affidavit, deed of agreement and receipt all dated 16.03.1995 witnessed by one Jagdish Kumar and Khurana. The second set of documents bears thumb impression and name of the accused Nohar Singh. It also bears the name of the accused Subhash Yadav.
20. It is noted here that during the investigation, the original first set of documents and photocopies of second set of documents were seized from the possession of the accused Subhash Yadav on 22.06.1995 vide seizure memo Ex. PW-11/A. The investigating agency failed to recover the original copy of the second set of documents and resultantly, FIR No. 223/95 11/19 the forensic evidence of the execution of second set of documents by the accused Nohar Singh in favour of the accused Subhash Yadav could not be obtained.
21. Further, the accused Nohar Singh and Subhash Yadav in their statements under Section 313 Cr.P.C. categorically denied having dealt with the property in question by any such documents. The accused Nohar Singh stated that he never sold property to the accused Subhash Yadav by any document.
22. During investigation, the thumb impressions of the accused Nohar Singh on the second set of documents were not matched with his thumb impressions to establish that he having executed the second set of documents used the forged first set of documents to sale the property in question to the accused Subhash Yadav. Nor, the Notary Public and attesting witnesses of second set of documents have been examined by the prosecution. Thus, the prosecution has failed to prove that the accused Nohar Singh sold the property in question to the accused Subhash Yadav. The prosecution has also failed to prove that the accused Subhash Yadav was in possession of the said property or he further transacted with the property in question.
FIR No. 223/95 12/1923. RECOVERY OF BOTH SETS OF DOCUMENTS:
Both the set of documents were allegedly recovered from the possession of the accused Subhash Yadav vide Ex. PW11/A. The prosecution has come out with the story that the accused Subhash Yadav purchased the property in question in connivance with the accused Nohar Singh to deprive the lawful owner from the property. First of all, executions of both sets of documents have not been proved. Further, in absence of any positive evidence of common intention to forge the first set of documents by both the accused persons, it cannot be said that the accused Subhash Yadav purchased the property with criminal intent because he purchased the property in question after lapse of about one year. Therefore, mere recovery of the first set and second set of documents from the accused Subhash Yadav is not sufficient to say that forged documents were used by the accused persons.
24. EVIDENCE REGARDING PURCHASE OF STAMP PAPER: The prosecution has examined the stamp vendor as PW-8. He deposed that he stated to the IO that stamp paper nos. 27872 and 27874 were purchased in the name of Janki Devi by a person namely, Inder. He also stated that stamp paper nos. 27875 and 27876 were purchased in the name of FIR No. 223/95 13/19 Nohar Singh and stamp paper no. 27878 and 27879 were purchased in the name of R.P. Gupta. The stamp papers from 27872 to 27874 had been used in the first set of documents. However, how the stamp papers no. 27875 to 27879 are connected with the present case has not been explained by the prosecution because the stamp paper no. 27875 to 27879 are not on judicial file.
25. Further, during prosecution evidence, this court summoned Collector of Stamp, Syam Nath Marg to produce the record regarding paper no. 27872 to 27874. However, the record was found weeded out by the department. Thus, it could not be proved who purchased the stamp paper 27872, 27873 and 27874 except that those papers were purchased in the name of Janki. The record regarding stamp papers of second set of documents has not been brought before the court. Therefore, purchase of stamp papers which were used in forging the first set of documents does not prove who forged the documents and how the forged documents were used.
26. So, there is no evidence on record to prove that the accused Nohar Singh and Subhash Yadav in furtherance of their common intention forged the first set of documents and FIR No. 223/95 14/19 used the same to execute the second set of documents. Therefore, both the accused persons are acquitted under Section 468/471/34 IPC.
27. PRINCIPLES OF LAW GOVERNING THE OFFENCE UNDER SECTION 420 IPC:
a) Dishonest deception to induce someone to deliver any property to any person.
b) To make alter and destroy the whole and any part of the a valuable security
c) Anything which is signed or sealed and which is capable of being converted into a valuable security.
28. Reverting back to the facts of the prosecution case, the gist of the prosecution story is that two sets of documents mentioned above were used to deceive the lawful owner of the property. However, it is not comprehensible how the owner Janki Devi was deceived. As stated above under the heading of forgery, the first set of documents had been forged. They were forged without the knowledge of Janki Devi, who had either been died or been in unconscious condition on the death bed. Thereafter, the first essential ingredient of cheating i.e, deception is missing.
FIR No. 223/95 15/1929. A person who is on the dead bed and whose signatures/thumb impressions are taken on some documents without any deception cannot be said to have been cheated. Therefore, the offence under Section 420/34 IPC is not made out against both the accused persons.
30. HOUSE- TRESSPASS BY THE ACCUSED NOHAR SINGH:
Now, I shall discuss the case of the prosecution to see whether the charge under section 448/34 I.P.C has been proved against the accused persons or not? For this, it is relevant to advert to the testimony of PW-4, PW-7, PW-9 and PW-11.
PW-4 deposed in her examination in chief that she lifted the articles of Janki Devi from the road.
PW-7 Savitri Devi deposed that the accused Nohar Singh broke the lock from inside his rented room and took the possession of the whole house. She deposed that on 08.03.1995, the accused Nohar Singh put the belongings of deceased Janki Devi outside the house.
In her cross-examination, she deposed that the articles of Janki Devi was kept on road by the accused Nohar Singh in her presence and there were 8-9 persons were present when the articles of Janki Devi were thrown or put on the road.
FIR No. 223/95 16/19Further, PW-9 deposed that wife of the accused was putting her house hold articles in the room where Janki Devi was residing.
PW-11 IO S.K. Sharma, in his cross examination, deposed that on 29.03.1995 he found the property in question locked. He further deposed in his cross examination that he carried out investigation regarding the lock on the property in question and found the same were of the accused Subhash Yadav. The articles belonging to Janki Devi which kept outside were put by Kamla Prashad in his house.
31. Here, it is observed that it has not been disputed that the accused Nohar Singh was the tenant of Janki Devi. In the examination of the accused Nohar Singh under Section 313 Cr.P.C, he admitted the fact that he was the tenant of Janki Devi. In the cross-examination of PW-7, the defence did not challenge her deposition that the accused Nohar Singh put the belongings of Janki Devi outside the house. In her cross examination, PW-7 stuck to her stand and further added that the articles of Janki Devi were kept on the road by the accused Nohar Singh in her presence. There is nothing in her cross examination which makes her testimony doubtful.
32. Further, the statement of PW-9 that the wife of the FIR No. 223/95 17/19 accused was putting her articles in the room where Janki Devi was residing has not been challenged in his cross examination as the defence did not put a single question on this point.
33. Thus, reading the testimonies of PW-4, PW-7, PW-9 and PW-11 together shows that the accused Nohar Singh put the lock at the room of Janki Devi and later on threw away her articles on the road. Thus, the prosecution has proved that the accused Nohar Singh committed house tress-pass by entering into the property of Janki Devi.
34. None of these witnesses deposed anything about the accused Subhash Yadav. Therefore, section 34 IPC cannot be resorted to read the testimonies of PW-4, PW-7, PW-9 and PW-11 against the accused Subhash Yadav.
35. Accordingly, this court finds the accused Nohar Singh guilty under Section 448 IPC. He is convicted under Section 448 IPC. The accused Subhash Yadav is acquitted under Section 448 IPC.
CONCLUSION Finally, it is concluded that the prosecution has failed to prove its case against the accused Subhash Yadav under Section 468/471/420/448/34 IPC. Accordingly, he is acquitted FIR No. 223/95 18/19 under Section 468/471/420/448/34 IPC.
Further, the prosecution has failed to prove its case under Section 468/471/420/34 IPC against the accused Nohar Singh. Accordingly, he is acquitted under Section 468/471/420/34 IPC. However, the accused Nohar Singh is found guilty under Section 448 IPC. Accordingly, he is accordingly convicted under Section 448 IPC. Before parting with this judgment, it is observed here that due to lethargic approach of police during enquiry/investigation the guilty persons in such a serious offence could not be brought to the justice. Let the copy of this judgment be sent to the Commissioner of Police, Delhi for his perusal and necessary action thereof.
He shall be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN (RAJESHMALIK)
COURT ON 29.05.2012 MM (WEST)-05/ NEW
DELHI
FIR No. 223/95 19/19