Delhi District Court
State vs . Balbir Singh Etc. on 3 February, 2007
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IN THE COURT OF SHRI POORAN CHAND
METROPOLITICAN MEGISTRATE:
ROHINI COURTS:DELHI
FIR No.351/87
P.S. Vikas Puri
U/s. 448/465/471/34 IPC
State vs. BALBIR SINGH ETC.
Sl. no of the case : 1835/2
Date of commission of : 31.12.1987
offence
Name of Complainant : 1. Tara Chand Chawla S/o Dhola Ram
Chawla R/o 148/187 Char Marla
colony Gurgaon haryana.
2. Jai Lal Dua s/o Tulsi Dass Dua r/o
SA/ 1309, Railway road Rishi Nagar
Sonipat Haryana
Name, parentage and : 1. Inder singh s/o Shiv Lal r/o A-93,
address Hastsal road Uttam Nagar Delhi
(since expired)
2.Smt Sudesh w/o Rajbir singh r/o o
A-93, Hastsal road Uttam Nagar
Delhi (Since expired)
3. Balbir singh s/o Karnail singh r/o
WZ 100, Sant Garh Tilak Nagar
Delhi
4. Ram Kumar s/o Ram Sharan r/o
WZ 200A Hastsal road Uttam Nagar
2
Delhi (Since expired)
5. Vijay Kumar s/o Yad Ram r/o 261/ B,
Hastsal Road Tilak Nagar Delhi
Offence complaint of : U/s 448/465/471 IPC
Plea of accused : Pleaded not guilty.
Final order : Acquitted
Date of order : 3.2.07.
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide order dt. 29.1.94 accused Inder Singh s/o Shiv Lal and Smt. Sudesh w/o Rajbir Singh were charged for offence u/s 448 IPC on the allegations that on or before 15.11.87they in furtherance of their common intention committed house tress pass in plot no.93A Hastsal Road Uttam Nagar.
2. Vide separate charge dt. 29.1.94 accused Balbir Singh s/o Karnail Singh, Ram Kumar s/o Ram Sharan Vijay Kumar s/o Yad Ram were charged for the offence u/s 465/468/471/34 IPC on the allegations that on 14.7.86 they all in furtherance of their common 3 intention prepared forged false deed which was executed by Smt. Bimla Devi in favour of Narinder Kaur on 10.10.1966 and was registered vide registration no. 13714 on 12.10.66 by deleting plot 65 to 93A and by deleting on east plot no. 73 as 100 sq, yard and on west by deleting plot no. 49 as 85 with intend to cause damage to complainant and also they forged sale deed and Vijay Kumar forged himself as Narinder Kaur and sold plot no.93A to Balbir singh on 14.7.86 and on 11.9.86 Balbir singh sold above said plot to accused Inder Singh and smt. Sudesh with intent to that forged document i.e. Sale deed shall be used for purpose of cheating and also they all fraudlently and dishonestly used the sale deed knowing or having the reasons to believe the same forged document thereby all the three accused persons namely above charged for the offence as mention above.
3. It is pertinent to mention that during the pendency of the trial accused Inder Singh, Smt. Sudesh and accused Ram Kumar had expired hence proceedings against all the three accused persons were abated. Presently accused Balbir singh and vijay Kumar are 4 facing trial and in order to prove its case orisecution examined total five witnesses.
4. PW1 Jai Lal Dua who is complainant in the present case and has stated that he purchased plot no.93 A measuring 2100 sq. yards out of 200 sq. yards in in khasra no. 22 Rectangle no. 75 Uttam nagar Hastsal New Delhi bounded as North-Gali, South-Gali East plot no.101 and west remaining 100 sq. yds of plot vide register sale deed no. 16023 dt.2.12.66 volume no. 659 pages no. 113 and 114 and remaining 100 100 sq. yds of plot no. 93A bounded as North-gali, South -gali as remaining 100 sq. yards of Jai Lal Dua i.e. his son and west plot no. 85 purchased by Sh. Tara chand vide register deed no.16022 ondt.2.12.66 from Smt. Sona Devi W/o Bhola Ram . Smt. Sona Devi purchased plot under reference from sh. Devi Ram s/o Makhan Lal vide register sale deed no.15036 dt. 8.11.66 volume no. 646 Devi Ram purchased under reference plot from Smt. Raghubir Singh and Ram Chander s/o Inder Singh vide registered sale deed no. 2451 dt. October 1956. He along with Tara chand used to visit the site of their plot of and on. In April 1985 they got raised boundary 5 wall on the plot . On 15.11.87 he along with Tara chand Chawla went to see their plot and saw that one Sh. Rajbir Singh along with his family and father had occupied their plot entire 200 sq. yds. Illegally unauthorisingly and unlawfully which cause harassment and mental tention to them. Immediately on 15.11.87 he along with Tara chand went to PS Vikas Puri and made complaint Ex.PW1/A which bears signature at point A and stated that Sh. Rajbir singh Illegally unauthorisingly and unlawfully plot no.93A and requested the police togot vacated the said plot . The sale deed of the property in question is ex.PW1/B. The sale deed of other portion is ex.PW1/C, other Sale deed is ex.PW1/D all original seen and returned. After that this witness was cross examined by counel for accused.
5. PW2 SI Hem Chander who has stated that in December 1987 he was posted at PS Vikas Puri as ASI. On that day a written complaint of jai Lal Dua and Tara chand Chawla was marked to him for investigation the same is ex.PW2/A and on the basis of which duty officer recorded FIR 351/97 u/s 448/34 . Threafter he inspected the site and prepared the site plan Ex.PW2/A at the instance of 6 complainant. He recorded the statement of witnesses u/s 161 CrPC and on 5.1.88, he arrested accused Inder Singh and Smt. Sudesh. On 16.2.88 investigation of this case was transferred to Vigilence branch.
6. PW3 Kishan Lal son of Chaman Lal who has stated that he do not know anything about this case and he has no concern with the property in question in this case and he totally hostile . This witness was not cross examined by the Ld. APP as his statement u/s 161 CrPC was not either on judicial file or on police file.
7. PW4 V.K. Khanna Principal Scientific Officer CFSL has stated that he is working on this post since July 1996 and have until now given reports in about 2300 cases involving more than one lacs of exhibits of various kind received from various agencies. He has carefully examined the document and prepared the report Ex.PW4/A which runs into 6 pages. In his report this witness has opined that the disputed signatures are of the persons of whom specimen signatures has been taken. This witness was also cross examined by the counsel for accused.
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8. PW5 Ct. Kulbir Singh who has stated that on 5.1.88 he joined the investigation of this case and IO arrested Sudesh acused in his presence who was not present since expired during trial. No PW was examined by the prosecution.
9. Thereafter both the accused persons have been examined U/s 313 read with Section 281 CrPC in which they denied the prosecution version and claimed to be innocent and further deposed that they have been falsely implicated in this case.
10. In defence accused examined DW1 S.K. Verma UDC, Sub Registrar Office who has proved the record of receipt dated 14.7.88 registered in record book no. 4, Registration no. 19949, Book No. 4, Vol No. 14-15 executed by Smt. Narender Kaur wife of Shri Asis Singh in favour of Balbir Singh son of Karnail Singh in the presence of Registrar.
11. I have heard ld. APP for the State and counsel for the accused and perused the material on record carefully.
12. It is a settled proposition of criminal law that prosecution 8 has to prove its case on the judicial file beyond reasonable doubts and such doubts in the prosecution story entitle the accused to acquittal. In a case reported as Rama Kant Rai Vs. Madan Rai 2003 (8) Scale 243, it has been ruled that a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is however, no absolute standard. What degree of probability amounts of 'proof' is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial. Doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary; triable or a merely possible; but a fare doubt based upon reason and common sense. It must grow out in the evidence of the case. The concepts of probabililty, and the degrees of it, cannot obviously, be 9 expressed in terms of units to be methmatically enumerated as to how may of such units consitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evolution of degrees of probability and quantum of proof. Forensic probability must, in the last analysed rest on a rdust common sense and, ultimately, on the trend intuition of judge.
13. While the protection given by the criminal process to the accused lpersons is not to be eroded, at the same time, uninformed ligitimization of trivailities would make a mockery of administration of criminal justice. In Sucha Singh and Anr. Vs. State of Punjab J.T. 2003(6) S.C. 248 it has been ruled that: exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and ST Vs. SITA RAM sxw thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundered guilty escape than punish an innocen. Letting guilty escape is not doing justice according to law. (See: Gurbachan Singh Vs. Satpal Singh and others J.T. 1989 (4) S.C. 38: AIR 1990 S.C. 209. Preseuction is not required to meet any and every hypothesis put 10 forward by the accused. (See: State of UP Vs. Ashok Kumar Srivastava J.T. 1992(1) S.C. 340: AIR 1992 S.C. 840. A reasonable doubnt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sence. It is must grow of the evidence in the case. If a case is perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whethr if the meticulous hypersensitivity for eliminate a rare innoncent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See: Inder Singh and Anr. Vs State of Delhi Adkmn) AIR 1978 S.C. 1091) Vague hunches cannot takek place of judicial evaluation. A judge does not preside over a crimiinal trial, merely see that no innocent man is punished. Judge also presides to see that a guilty man does not escape. Both are his public duties. Per Viscouint Simon in Stirland Vs Director of Public Prosecution, 1994 AC (P.C) 315 quoted in State of UP Vs. Anil Singh JT 1988 (3) SC 491 AIR 1988 S.C. 1998. Doubts would be called reasonable if they are free from a zest 11 for abstract speculation. Law cannot afford any favourite other than truth.
14. In Visveswaran Vs. State 2003 Rajdhani Law Reporter 350 (SC) Hon'ble Supreme Court of India has ruled that in a criminal trial duty of the courts is not to let off criminals on petty discrepancies and minor contrsadictions. They must show responsibility. Grouind realities must be appreciated. Accused be not allowed the benefit of defective investigation. Prosecution lapses cannot be allowed to become escape route of criminals. If therre is sufficient proof of guilt by border lprobability, court must ignore techinical objections.
15. Now I come to the facts of the present case. In the present case out of total 19 PWS only five PWS could have been examined by the prosecution.
16. Public witnesses namely Tara Chand , Ram Charan and Sardar Asha singh died during the pendency of the trial. Only the complainant i.e. PW1 Jai Lal Dua has been examined in this case as material witness . No police witness in whose presence IO has 12 obtained specimen signatures has been examined by the prosecution despite giving ample opportunities for the same. Even IO who is very important witness to prove this cae has not been examined by the prosecution as it is the investigating officer who has obtained speciment signature of accused Balbir and Vijay Kumar and sent the same for report of hand writing expert CFSL.
17. Ld. Counsel for the accused persons has stated that IO took specimen signatures during investigation without the permission of the court hence the report of CFSL cannot be admissible in evidence. To substantiate the view he has cited the case law 109 (2004) DLT 130 Rakesh Kumar Vs. State where in it is held that 'Specimen signatures /hand writing / thumb/finger printimpression of obtained during investigation by Investigating officer without court permission : Could not be used during trial:Report of Handwriting Expert/Finger print Bureau of no consequence and cannot be used to connect appellants with crime.'
18. He has further stated that for the sake of argument if we read the report of CFSL in evidence then on the basis of this report accused persons cannot be convicted because there is no corroboration for this report and report of CFSL is only corroborative 13 piece of evidence. To substantiate his arguments he has cited another case law Punjab and Haryana High Court (DB) in Criminal appeal No28-DBA/88 in The State of Punjab Vs. Gurjant Singh and others where in it is held that Indian Penal, Code, Section 467/420- Forgery- Alleged frogery of Sale Deed-No cogent evidence available-
Conviction for forgery cannot be based on expert opinions of Director, Finger Print Bureau alone.
19. Ld. Counsel for the accused persons has further argued that in criminal cases the burden of prove is on the prosecution and it is the foremost and important duty of the prosecution. In the present case to establish the fact before the court that the specimen signatures taken by the IO during investigation is only and only of the accused persons and not of the other persons. This fact is not proved by the prosecution in the present case as IO and none of the police witness in whose presence the specimen signature of the accused persons were taken during investigation has been examined in the case by the prosecution. To substantiate his arguments he further cited case law 1983 Crl. LJ 858(Rajasthan High Court) in State of Rajasthan Vs. Dr.J.P. Sharma and others where in it is held that 14 It is the duty of the prosecution to prove that the speciment signatures are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questional documents that they are of the same person, should be relied upon or not. Where the specimen writings and specimen signatures of the accused charged under Ss. 120, 420, 468 of IPC and S. 5(1)(D) of Prevention Corruption Act were taken by a Magistrate who neither knew accused personally not got the accused persons identified before taking the specimen writings, the specimen writing and signatures so taken could not be said to be of the accused person and their comparison with the disputed writings done by the expert would not connect the the accused persons with the crime.
20. On the other hand ld. APP for the state has relied case law AIR 198 Supreme court 791 State of UP Vs. Ram babu Mishra where in it is held that Though a direction by the Magistrate to the accused to give his specimen writing when the cases still under investigation would surely be in the interests 15 of the administration of Justice, the language of S.73 of the Evidence Act does not enable the Magistrate to give such a direction when the case is still under investigation. The section contemplates pendency of some proceedings before a Court. It does not permit a court to give a direction to the accused to give specimen writing for anticipated necessity for comparison in a proceeding which may later be instituted in the court. Further, section 73 of the Evidence Act makes no distinction between a civil and a criminal court. AIR 1970 Mad. 85 & AIR 1960 Cal. 32 & 1973 (77) Cal. WN 865 & 1975 Criminal Law Journal , 884 ,(Punj) and AIR 1957 Madh. Pra. 106 & (1972) 2 Cut WR 1332, approved AIR1962 Pat. 225 (FB) & 1971 Crl. Law Journal 1591 ( Andh. Pra.) overruled.
21. In view of the above judgment ld. State counsel has stated that the Investigating Officer of this case did not seek permission of the Magistrate for obtaining specimen signature of accused persons during investigation because in above case laws Supreme Court has held that Magistrate has no power to give such type of permission in view of section 73 Indian Evidence Act for giving direction to IO for taking specimen signatures or writing. When law bars the IO then there is no question of seeking permission for taking specimen 16 signatures from the Magistrate. He further stated that case law relied by the ld. Counsel for the accused in Rakesh Kumar vs. State where in Justice O.P. Dwivedi of Delhi High Court has held that without the permission of the court if the Specimen signatures /hand writing/thumb/finger print impression of oftained during investigation by Investigating Officer without Court permission:
Could not be used during trial: Report of Handwriting Expert/Fingerprint Bureau of no consequence and cannot be used to cannect appellants with crime. He further states that this case law comes in the year 2004 i.e. after 20 years later for the above said case of Supreme court where in Hon'ble Supreme court in view of section 73 of IPC Magistrate has no power to give permission for obtaining specimen signatures.
22. In view of the submissions made by both the parties and the case laws cited above I am agreed with the argument addressed by the State that the case law declared by Hon'ble Supreme court in case 'State of UP vs. Ram Babu Mishra' was of 1980 and once court was not empower to give permission to the IO for obtaining 17 specimen signatures of accused persons then no question arise to seek such permission as law bars. Hence I am of the view that CFSL report is admissible in evidence. But while reading the report of Scientfic Officer of CFSL, the very first question which comes to my mind whether the specimen signature obtained by the IO during investigation on the basis of which CFSL report i.e. Ex.PW4/A is based are of accused persons only. To this prosecution was under
duty to prove this fact that specimen signatures were taken were of accused Balbir Singh and Vijay Kumar only. Admittedly no attesting witness of the memo of specimen signatures and IO has been examined in this case by the prosecution hence this fact has not been proved beyond reasonable doubt that the specimen signatures were of accused Balbir Singh and Vijay Kumar only.
23. To substantiate the view I take the help of case law cited by accused in State of Rajasthan Vs. Dr. J.P. Sharma(Supra) where in it is held that it is the duty of the prosecution to prove whether the specimen writing is of the accused persons and of none else but in 18 the present case this fact has not been proved. The report of CFSL cannot be read in evidence hence of no avail.
24. So far as testimony of PW1 Jai Lal Dua is concerned he has proved only the original documents of plot bearing no. 93A and has dstated that when he visited the site he found that one Rajbir was residing on the plot with his family. He has not stated in the witness box regarding forgery committed by the accused persons of the documents seized by the IO during investigation. Whether these documents were forged by the accused persons or none else, the trestimony of this witness is of no use except that plot no.93A was belongs to him. But accused Vijay Kumar and Balbir singh were charged for the offence u/s 465/468/471 IPC for which PW1 has not stated anything. Therefore in view of my reasoning I am of the view that prosecution has failed to prove the fact that specimen signatures were of the accused persons only and none else.
26. In view of the above reasoing I am of the considred vidw 19 that prosecution has miserably failed to prove its case beyond reasonable doubt, hence both the accused persons are acquitted. Their BB stand cancelled sureties are discharged. File be consigned to record room.
(Announced in open court on 3.2.2007) (POORAN CHAND) METROPOLITICAN MEGISTRATE NEW DELHI.
20FIR NO. 351/87 03.02.07 Present: Ld. APP for the state.
Both he accused on bail.
Vide my separate judgment announced in the open court today both the accused persons are acquitted. Their BB stands cancelled . Sureties are discharged. File be consigned to record room.
(POORAN CHAND) METROPOLITICAN MEGISTRATE NEW DELHI. 3.2.07 21 22