Delhi District Court
Sudershan Sharma (Aged 56 Years) vs State on 28 February, 2017
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
Criminal Appeal No.54422/2016
Sudershan Sharma (Aged 56 years),
W/o Sh. Sudershan Sharma,
R/o F384, Karam Pura,
New Delhi - 110015. .....Petitioner.
Versus
1. State
2. Smt. Shashi
W/o Sh. Harish Chander,
3. Sh. Harish Chander,
S/o Sh. Tulsi Ram,
Both R/o C110, Karampura,
New Delhi - 110015. .....Respondents.
Date of filing of petition. : 02.12.2015. Date of Arguments. : 01.02.2017. Date of Judgment. : 28.02.2017. :J U D G M E N T :
1. Aggrieved by the judgment dated 29.10.2015 passed by Ld. MM 04, West District, Tis Hazari Courts, Delhi in a case bearing FIR No.586/1995 U/s 342/387/506/34 IPC, PS Moti Nagar titled as State Vs. Harish Chand & Ors., whereby the accused persons (respondents no.2 Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.1 of pages 11 and 3 herein) were acquitted of the offence U/s 342/387/506/34 IPC, the complainant (appellant herein) has preferred the present appeal u/s 372 Cr. P.C on 02.12.2015 interalia praying for setting aside the impugned judgment.
2. The facts in brief, as per the Prosecution are that complainant Smt. Sudershan had taken certain sum of money from accused Smt. Shashi on loan. Accused Shashi charged exorbitant rate of interest on the loan amount, hence after some time, the complainant failed to pay the interest amount. Thereafter, complainant executed an Agreement in favour of Shashi which was executed on 12.10.1995 wherein it was agreed that the complainant would pay a sum of Rs.1,50,000/ to accused Shashi within a period of three months and on failure on the part of the complainant to pay that money, accused Shashi would have the right to sell or transfer the said property in favour of anybody on the basis of registered GPA and Will and shall also have full right to get the said property in her possession. It is alleged that on 25.10.1995 at about 10.30 PM at C123, Karampura, Delhi, accused Shashi, her husband Harish Chand, mother Santosh Kumar (since expired) alongwith two other persons entered into the house of complainant, wrongfully confined the entire family of the complainant including her three children and her husband. Thereafter, in the morning under the threat of death or grievous hurt and by putting children of the complainant in fear caused the complainant to execute certain documents regarding property no. C123, Karampura, Delhi before SubRegistrar, Kashmere Gate. After execution Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.2 of pages 11 of the documents, accused and her family taken possession of the house bearing No.C123, Karampura, Delhi and complainant and her family went to the house of a relative. After 1415 days, complainant lodged an FIR against the accused persons. Accordingly, after the investigation, police filed the present charge sheet against the accused, cognizance was taken and the charge for the offence punishable u/s 342/387/506/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial. During the course of trial, accused Santosh Kumari expired on 26.04.2010 and proceedings against her were abated vide order dated 15.12.2011.
3. To prove its case, the prosecution examined as many as eight witnesses. Thereafter, the statement of accused u/s 313 Cr. P.C was recorded and then after hearing the submissions of Ld. APP for the state as well as of the Counsel for the respondents, vide the impugned judgment dated 29.10.2015, the respondents no.2 & 3 were acquitted of the offence U/s 342/387/506/34 IPC and feeling aggrieved by the said judgment, complainant (appellant herein) is impugning the same on various grounds mentioned in the petition itself.
4. I have heard the respective rival submissions of Ld. Counsel for the appellant/complainant as well as of Ld. counsel for respondents no.2 & 3 herein and have also perused the entire material on record including the Trial court record, the contents of the instant appeal particularly the grounds taken therein. I have also perused the reply filed on behalf of respondents no.2 & 3 to the instant petition and also the rejoinder of the Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.3 of pages 11 appellant to the reply of respondents no.2 & 3.
5. It is submitted by Ld. Counsel for complainant/appellant herein that the impugned order as passed by Ld. Trial Court is bad in facts and on law. While passing the impugned judgment, Ld. Trial Court did not advert to the material aspects of the case in correct perspective. Ld. Trial Court has failed to appreciate that appellant's stand in the civil litigation as well as in the present complaint/FIR and its prosecution has remained consistent and unwavering while the stand of the accused has substantially changed from the inception/its earlier stand/version. This fact ought to have been taken judicial note by Ld. Trial Court. Ld. Trial Court returned a perverse finding which is against the canons of justice and settled principles of law while acquitting the respondent no.2 and 3 as Ld. Trial Court incentivized the perpetrators of crime. Ld. Trial Court ought not to have lost sight of the fact that real and substantive justice ought to have been done visavis the complaint/FIR lodged by the appellant and heinous crime committed against the appellant by respondent no.2 and 3 herein, who under the extreme threat and duress, compelled the involuntary execution of the deeds of sale / transfer of ownership of complainant's / appellant's property. Ld. Trial Court ought not to have lost sight of the fact that qua the title of the property and possession even on date, the appellant is in settled, exclusive and peaceful possession fortified by the decree/ direction of the Hon'ble High Court of Delhi passed in R.F.A No. 596/2004 and R.S.A. No.232/2004 vide order dated 16.03.2005 while on the other hand, accused/respondent no.2 and her accomplice / Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.4 of pages 11 respondent no.3 herein could not establish their bonafide to invoke indulgence from the Hon'ble High Court in their favour. Ld. Trial Court ought not to have ignored/overlooked the material aspect that the accused/respondent no.2 could not prove/corroborate/establish the payment of consideration, as alleged. Thereby, failure of accused/ respondent no.2 and 3 herein to that count conclusively fortifies the commission of alleged offence in the manner stated in the FIR by the complainant/appellant herein, which Ld. Trial Court ought not to have overlooked in an extremely casual manner. Ld. Trial Court ought not to have ignored to take judicial note of the fact that appellant's testimony as PW5, her son Sh. Sachin Sharma as PW6 and her husband Sh. Sudershan Kumar as PW4, have stood the cross examination and come out unscathed. Ld. Trial Court ought not to have committed grave miscarriage of justice while it overlooked the material fact that the FIR No.586/95 was registered U/s 342/387/506/34 IPC at PS Moti Nagar, Delhi on 09.11.1995; that the possession of the premises i.e. C123, Karampura, Delhi was restored to the appellant/complainant on the directions of Hon'ble High Court of Delhi vide order dated 16.03.2005 and till that time, no suit for possession was filed by the respondent no.2 and 3 which conclusively goes on to infer that till that time, the respondents no.2 and 3 / accused persons had no legally tenable right, title and interest in the property of the complainant/appellant i.e. C123, Karampura, Delhi. Ld. Trial Court grossly erred in appreciating the material fact with judicial mind that if accused persons/respondent no.2 and 3 herein had substantial/substantive interest in the property of the complainant/ Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.5 of pages 11 appellant i.e. C123, Karampura, Delhi, they could not have waited for registration of FIR No.586/95 U/s 342/387/506/34 IPC at PS Moti Nagar on 09.11.1995 till date without filing the quashing proceedings for their false implications/private complaint for registration of cross case/FIR. By not doing so, almost for two decades, the involvement of respondents no.2 and 3 is materially implicit. Ld. Trial Court has failed to correctly appreciate the correct perspective and application of law and facts while reasoning to disbelieve the prosecution version in para 18(a) of the impugned judgment while attributing admission of execution of agreement dated 12.10.1995 and receipt of sum of Rs.1,50,000/ overlooking the material aspect that the agreement dated 12.10.1995 and other documents were got cancelled in the month of November, 1995 by the appellant as these were without any legitimate and proper consideration. Noteworthy to point out that a notice dated 09.11.1995 was sent to the respondent no.2 which was duly served and replied to by her on 25.11.1995. Thus, Ld. Trial Court ought not to have overlooked inescapable inference that the alleged documents and the story perpetuated by accused/respondents no.2 and 3 as the defence is highly implausible and not otherwise would have held this circumstance against the complainant/appellant and in favour of the respondents no.2 & 3. Ld. Trial Court grossly erred in laying extreme stress/emphasis as fatal to prosecution case over nonciting of Sh. R.K. Burman as prosecution witness because it is of not much consequence due to steadfast and coherent deposition by the star witnesses PW4, PW 5 and PW6. Therefore, non citing of Sh. R.K. Burman was of not much consequence. Ld. Trial Court patently add in holding that evidence of Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.6 of pages 11 coercion is not very clear. The observation of Ld. Trial Court in para 18(h) while holding the want of evidence of coercion against the complainant/appellant is absolutely based on conjectures and surmises overlooking the fact that complainant and her family were extremely traumatized by the organized gang of extortionist led by the respondents no.2 and 3/accused persons in the FIR. Ld. Trial Court in para 19 of the impugned judgment committed manifest error in hypothetically assuming in the absence of any defence witness that the complainant, after executing the documents of transfer of the property in favour of accused on 26.10.1995 changed her mind and lodged the false FIR with intent to get back the property. Ld. Trial Court grossly erred in overlooking the material aspect of the case that perpetrators of the grizzly crime i.e. respondents no.2 and 3 (and their accomplices) were never staked claims to the household belongings/items/goods lying in the shop on the ground floor of the appellant's property and inside the beauty parlor besides the household items/goods/items/articles. Ld. Trial Court has wrongly held that at the time of execution of agreement dated 12.10.1995, appellant had received a sum of Rs.1,50,000/ from accused persons (especially respondent no.2). Whereas, the appellant had categorically stated in her examinationinchief and crossexamination that the said Agreement was of Rs.1,50,000/ but she had not received any amount towards the sale consideration of the property, as alleged by respondent no.2. The case of the appellant is/was that she has received an amount of Rs.50,000/ as loan from respondent no.2/Shashi on interest from expansion of her business. Ld. MM has wrongly held that the appellant had voluntarily Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.7 of pages 11 executed the Agreement dated 12.10.1995 in favour of respondent no.2/Shashi and empowered her to sell the property and there was no need for the respondent no.2 to compel the appellant to sign other documents in favour of respondent no.2/ Shashi. Ld. Trial Court has also wrongly held that if accused persons/respondents no.2 & 3 and others, indulged in any such coercive actions as mentioned in the FIR, the appellant/ complainant would have immediately lodged the FIR. Ld. Trial Court has failed to note that both the respondents no.2 & 3 have prevaricated from their stand earlier taken by them as their defence and in their statement recorded U/s 313 Cr.P.C. More so, no evidence whatsoever has been given by the respondents no.2 & 3 in their defence except that the statement recorded U/s 313 Cr.P.C.
6. Per contra, according to Ld. Counsel for respondents no.2 & 3, the instant appeal as preferred is devoid of merits as it has been failed to pinpoint any patent error or material infirmity in the impugned judgment of acquittal. It is a well reasoned judgment and does not require any interference therein. The story as brought up by the complainant/appellant is imaginary and unbelievable.
7. Having heard the submissions and counter submissions made before me and carefully perusing the entire material placed on record, I am of the considered opinion that the instant appeal as filed liable to fail as it has been failed to point out any patent error or material infirmity in the impugned judgment. The unexplained inordinate delay of 14 days in lodging the FIR was fatal.
Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.8 of pages 11
8. In order to prove its case, the prosecution had examined three witnesses of the incident i.e. PW4 Sh. Sudershan Kumar, PW5 Smt. Sudarshan Sharma and PW6 Sh. Sachin Sharma and perusal of the testimonies of these witnesses can not be relied upon completely and as such Ld. Trial court has rightly acquitted the accused persons/respondents no.2 & 3 herein. Admittedly there is a delay of 14 days in lodging the FIR and in this regard, I am in complete agreement with the findings of Ld. Trial Court that had the accused indulged in any such coercive actions, as are alleged, the complainant would have immediately lodged the FIR. Perusal of the testimony of complainant i.e. PW5 Smt. Sudershan Sharma reveals that there is no denial of execution of agreement dated 12.10.1995 and loan transaction. Even in her testimony, she has admitted that at the time of execution of agreement dated 12.10.1995, she had received a sum of Rs.1,50,000/ from the accused and perusal of said documents reveals that if the complainant fails to pay the amount, then accused had full right to get the said property in her possession and also to execute other sale documents. In such circumstances, it has been rightly observed by Ld. Trial Court that the agreement voluntarily executed by the complainant on 12.10.1995 was enough for the accused to sell the property.
As regards to the claim of prosecution witnesses that accused persons were accompanied by two other unknown person, who were carrying knives and on this aspect Ld. Trial Court has given his elaborated observations. It has been rightly observed by Ld. Trial Court that neither Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.9 of pages 11 in the complaint nor in the statements recorded U/s 161 Cr.P.C any description of such persons have been given. Even PW5 could not tell anything about them in her testimony and even no investigation on this aspect has been carried out in the matter. Thus I am in conformity with the observations of Ld. Trial Court that this conduct on behalf of the police makes it probable that there were no such two other persons involved in the incident in question.
I am also in complete agreement with the observation of Ld. Trial Court that it is highly improbable that a family would have been wrongfully confined and beaten up whole night despite that they would not require any medical attention on the next date, as in their respective testimonies PW4 & PW5 have claimed that neither of them nor their children were given any medical treatment or first aid after the incident dated 25.10.1995/ 26.10.1995.
Further the Ld. Trial Court has also rightly observed that in the circumstances when none of the prosecution witnesses has alleged any imputation against Sh. R.K. Burman, the Advocate, who stood as a witness to the execution of GPA, SPA and Will at the office of Registrar at Kashmere Gate, which are on record file with the charge sheet, the non examining of said witness to reach at the true position creates doubt about the story of prosecution in the circumstances where no reason has been put forth by IO in this regard.
Further as regards to the plea of appellant that observation of Ld. Trial Court in para 18(h) while holding the want of evidence of coercion Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.10 of pages 11 against the complainant/appellant is absolutely based on conjectures and surmises overlooking the plea of complainant that she and her family were extremely traumatized by the organized gang of extortionist led by the respondents no.2 and 3/accused persons in the FIR, I find no substance in it and completely agree with the observations recorded by Ld. Trial Court in this regard. Ld. Trial Court has rightly observed that in a crowded city like Delhi, it is not easy for anyone to so coerce another to sign documents, especially when the coercion is stated to have been begun in the night and continued till the next date culminating in the office of Sub Registrar. This fact is further strengthen by the complainant herself while admitting in her cross examination that the property is surrounded by other houses and also admitted spending of three and a half hours at the office of SubRegistrar in getting the documents prepared.
9. In view of above, I find no reason to interfere with the findings recorded by Ld. Trial Court. Resultantly, the instant appeal is hereby dismissed.
10. With this, the appeal stands disposed off.
11. Copy of this judgment be sent to the Ld. Trial Court alongwith TCR for information.
12. Appeal file be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1)
on 28 February, 2017) Addl. Sessions Judge/Special
th
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
Sudershan Sharma Vs. State & Ors. (CA No.54422/2016) Page No.11 of pages 11