Punjab-Haryana High Court
Shyam Sunder @ Shyam Sunder Aggarwal vs Rameshwar Dayal & Others on 13 August, 2010
Author: Sabina
Bench: Sabina
Crl. Appeal No.S-977-SB of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.S-977-SB of 2010 (O&M)
Date of Decision: August 13, 2010
Shyam Sunder @ Shyam Sunder Aggarwal ........Appellant
Versus
Rameshwar Dayal & others ........Respondents
******
CORAM : HON'BLE MRS. JUSTICE SABINA
Present: Mr. Rahul Vats, Advocate
for the appellant.
SABINA, J.
Complainant Shyam Sunder filed a complaint under Sections 420,465,467,468,471,120-B of Indian Penal Code (in short 'IPC'), Police Station Kanina against the respondents. Vide impugned judgment dated 12.1.2010, learned trial Court acquitted the respondents of the charge framed against them. The complainant has filed this application under Section 378 (4) of the Code of Criminal Procedure (in short 'Cr.P.C.') with a prayer for grant of leave to file an appeal against the order mentioned above.
The case of the complainant, as noticed by the trial Court in para No.2 of its judgment, reads as under :-
"2 Brief facts of prosecution case are that complainant in the case Shyam Sunder son of Dhani Ram had filed a complaint which was sent for investigation under Section 156(3) Cr.P.C. and on which police has registered the present FIR No.82 dated 9.4.2003. It was a Crl. Appeal No.S-977-SB of 2010 (O&M) 2 complaint under Sections 420,465,467,468,471 IPC wherein complainant had provided the pedigree table of his family members as below :-
Jamni Shai Dhanni Ram Rudmal Shiv Dayal Mahadevi-Jagdish-Gyarshi Lal-Rameshwar-Om Parkash-Murari Lal Kalawati-- Sharda--Vidhya----Mani Devi,---Sunita---Shyam Sunder, Mahesh----Pawan-----Mahabir.
It was stated by him that his grand father was Jamni Shai and in the life time of his grand father, father of complainant Dhani Ram died in 1969. Dhani Ram had two wives first Maha Devi died and thereafter Dhani Ram married Kulwati who is mother of present complainant. Dhani Ram had sons Jagdish, Gyarshi Lal, Rameshwar Dayal, Om Parkash, Murari, Shayam Sunder (present complainant) Mahesh, Pawan and Mahabir Parshad and daughters Sharda, Savatri, Vidhya, Mani Devi and Sunita. It was also stated that when his father Dhani Ram died in 1978 his mother Kalawati was alive. According to the complainant his grand father Jamni Shai was owner in possession of 18 kanal 9 marla land of khasra no. 76/144 as per jamabandi for the year 1984-85 situated in village Bhojawas, Tehsil and District Mohindergarh and on his death on 31.3.76 the above legal heirs of Dhani Ram and other sons of Jamni Shai, Rudmal and Shiv Dayal should have become owner in possession by way of succession. It is alleged in the complaint that accused Rameshwar Dayal Crl. Appeal No.S-977-SB of 2010 (O&M) 3 is the step brother of complainant and reside in Narnaul while remaining brothers of complainant reside outside the village. Rameshwar Dayal had dishonest intention to grab the property of their grand father and in furtherance of his common intention in connivance with revenue officials showing himself to be the lone legal heir of Jamni Shai got mutation no.1767 dated 13.3.90, however, the same was dismissed in default on 8.6.90 and the land continued to be in the name of Jamni Shai. According to the complaint accused Rameshwar in connivance with accused Prem Kumar and Gobind Ram entered into a criminal conspiracy in furtherance of which accused Rameshwar gave a general power of attorney in favour of accused Prem Kumar on 19.4.90 on which Gobind Ram signed as a witness. It is alleged in the complaint that this general power of attorney was registered as document no.15/04 with Sub Registrar office Narnaul and in this accused Rameshwar had shown himself to the owner by way of mutation no. 1767 while in fact that mutation no.1767 was dismissed in default thus it is alleged that valuable security was forged. It is further alleged in the complaint that accused Rameshwar and Prem Kumar in connivance with Om Parkash and Krishan Kumar executed registered sale deed no.90 dated 23.4.90 for 18 kanal land in favour of Om Parkash and Krishan Kumar for the land owned by Jamni Shai while on that date Rameshwar Dayal was not owner. It is further alleged Crl. Appeal No.S-977-SB of 2010 (O&M) 4 that Rameshwar Dayal continued to have dishonest intention to grab remaining 9 marla land and in furtherance of which in connivance with accused Prem Kumar, Sanwal and Shiv Lal got mutation n.1801of succession of Jamni Shai for 18 kanal 9 marla land incorporated on 5.9.90 and thus mutation was incorporated on the basis of verification of Shiv Lal, Sanwal and Prem Kumar and Rapat no.1 dated 1.9.90 and Rapat no.260 dated 13.3.90 was made by halka Patwari village Bhojawas. It is further stated in the complaint that continuing his dishonest intention and fraudulent moves accused Rameshwar in connivance with accused Prem Kumar sold remaining 9 marla land by way of sale deed no.1447 dated 11.8.97 to Somdutt, Bijender, Rambir and Narender sons of Chandgi Ram and in mutation of sale deed no.257 dated 22.9.97 was allowed to be incorporated. Complainant had stated that he was residing outside Narnaul at Mumbai and on 29.8.02 had come to know about the alleged offences. During investigation accused Om Parkash and Krishan were found to be innocent and thus completing the investigation report under Section 173 Cr.P.C. was filed against the present accused for offence under Sections 420/465/467/468/471/120B IPC for trial."
After hearing learned counsel for the appellant, I am of the opinion that the instant application deserves dismissal.
The trial court in paras 8, 9 and 10 of the impugned judgment has Crl. Appeal No.S-977-SB of 2010 (O&M) 5 held as under :-
"In the case in hand perusal of prosecution evidence shows that prosecution has succeeded to examine only three material witnesses PW4 Shayam Sunder, PW6 Virender Singh Patwari, PW8 Narender Singh ASI whose evidence have direct bearing on the prosecution cases. After considering the complaint Ex.PW/A and the statement of PW4 complainant Shayam Sunder it is coming up that Jamni Shai grand father of complainant Shayam Sunder and accused Rameshwar had properties in village Pachari in Rajasthan and in village Bhojawas district Mohindergarh and complainant admits in is cross examination that the 1 and of village Pachari was ancestral and the land of village Bhojawas was not ancestral 1 and. He also admitted that Jamni Shai in his life time had given ½ share of the land of Pachari village to him and remaining ½ share was given to Rameshwar Dayal. On behalf of accused there has been no denial to the documents being executed by them and there is no dispute that the document did not bear their signatures or the documents have been executed without their knowledge or consent. Accused Rameshwar has put up a defence that Jamni Shai in his life time has had made some family settlement/partition under which the land of village Bhojawas in regard to the alleged documents have been forged, had fallen in the share of Rameshwar. Accused has examined Om Parkash DW1 Crl. Appeal No.S-977-SB of 2010 (O&M) 6 who is the ral brother and in his examination in chief this witness DW1 has deposed about the fact of family settlement and he has also deposed that not only he but other legal heirs of Dhanni Ram, Mahabir Parshad, Jagdish Parshad, Guyarshi Lal and Murari Lal sons, Vidhya Devi, Savatri, Sharda daughters of Shivdann Singh son of Jamni Shai have given their affidavits Ex. DW1/B To Ex.DW1/1 in favour of the accused about the fact of family settlement. Ex.DX certified copy of judgment dated 20.9.02 from the court of Assistant Collector Khetri district Jhunjhunu Rajasthan in case no.145/1997 titled Kalawati Vs. Rameshwar Dayal has been tendered to prove that the fact of family settlement by Jamni Shai in his life time was the matter in issue and same was relied at the time of passing this judgment by the court in Rajasthan for the land of village Pachari. Although learned APP has opposed the exhibit of documents affidavits tendered by legal heirs and has contended that these deponent should have appeared, I am of the considered view even these affidavits of legal heirs are struck off from the evidence of accused it does given opportunity for this court to consider why apart from complainant Shayam Sunder no other legal heir of Jamni Shai or Dhani Ram appeared in support of the prosecution case to depose that there had been no family settlement of partition by Dhansi Ram or Jamni Shai. Complainant PW4 admits in his cross examination that at no point of time he Crl. Appeal No.S-977-SB of 2010 (O&M) 7 resided in village Bhojawas where the land is situated. The fact that he has sold his share of land of village Pachari is not denied by him and he admits that apart from present criminal case in no civil court any proceedings about the succession of Jamni shai or Dhanni Ram is pending.
9. The allegations against the accused and the charges framed are primarily in regard to forgery of documents and criminal conspiracy. A thorough appreciation of prosecution evidence establishes that accused themselves did not forged any document for the purpose of Section 464 IPC. The only contention which was raised forcefully by leanred counsel for complainant and learned APP was that Rapat roznamcha Ex.PW6/B and Ex.PW6/C was got incorporated showing Rameshwar son of Dhansi ram to be the lone successor but how that makes a case of forgery remains unexplained by the prosecution. Even if any false claim was raised by accused Ramniwas before revenue authorities about being the lone successor of Jamni Shai that does not make out any offence as alleged by the prosecution and to my mind it was only revenue officials who if had found the claim false could have initiated the prosecution. The sale of land showing himself to be rightful owner by way of sale deeds also does not make out any offence as alleged by the prosecution since admittedly accused Rameshwar was one of the legal heirs and if wrong recital is made same may give rise to Crl. Appeal No.S-977-SB of 2010 (O&M) 8 civil consequences but not the criminal specially when the vendees under the sale deed were not joined in investigation or produced as prosecution witnesses to depose that they were dishonestly induced by accused Rameshwar or his GPA accused Prem Singh.
10. Even otherwise it is coming up on perusal of the cross examination of PW4 complainant that he admits that even after the alleged acts the land continues to be in the name of Jamni Shai and no mutation has been incorporated. And in regard to the accused Lekh Ram the statement of PW6 Virender Singh Patwari is relevant wherein he has stated that in sanctioning the mutation there was no fraud on the part of then patwri. He also made material admission that Tehsildar after making a public enquiry and after satisfaction sanctioned the mutation and thus the Rapats allegedly by which accused Rameshwar claimed himself to be the sole heir are of no legal effect."
The reasons given by the trial Court, while acquitting the respondents, are sound reasons.
The case set up by the appellant Shyam Sunder was that the land in question had come to him in a family settlement. The said family settlement put up by respondent Rameshwar Dayal was duly supported by the other legal heirs of deceased Jamni Shai. The learned trial court after appreciating the evidence led on record has given a finding that the appellant had failed to establish forgery of documents. Crl. Appeal No.S-977-SB of 2010 (O&M) 9
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Learned counsel has failed to show any mis-reading of evidence on record by the trial Court. Hence, no ground is made out to grant leave to file an appeal.
Accordingly, this application is dismissed.
(SABINA)
August 13, 2010 JUDGE
Anand