IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL NO.577 OF 2010 BETWEEN 1. BHEEMESH @ BHEEMANNA S/O J. LAKSHMAN, AGED ABOUT 33 YEARS, SOMATHANAHALLI VILLAGE, 2. J. KEMPEGOWDA, S/O LATE BHEEMAPPA, AGED ABOUT 57 YEARS, SOMATHANAHALLI VILLAGE.
3. JAGADISH, S/O CHIKKAPPAIAH, AGED ABOUT 45 YEARS, KAMBALIPURA VILLAGE, HOSAKOTE TALUK.
(BY SRI H V SUBRAMANYA, ADVOCATE) AND STATE OF KARNATAKA BY DEVANAHALLI POLICE STATION, BANGALORE RURAL DISTRICT.
(BY SRI ROHITH B J, HCGP) ...APPELLANTS …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCED DATED:07.05.2010 PASSED BY THE II ADDITIONAL SESSIONS JUDGE AND SPL. JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN SPL.C.C.NO.117/2006 CONVICTING THE APPELLANTS NOS.1 TO 3/ACCUSED NOS.1 TO 3 FOR THE OFFENCE P/U/S 419, 506 R/W 34 OF IPC AND SEC.3(I)(V) OF THE SC AND ST (PREVENTION OF ATROCITIES) ACT, 1989 AND ACCUSED NO.1 CONVICTED FOR THE OFFENCE P/U/S 468 OF IPC AND ACCUSED NOS.2 AND 3 ARE CONVICTED FOR THE OFFENCE P/U/S 114 R/W SEC.468 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is preferred against the judgment of conviction and sentence passed by the II Addl. Sessions Judge And Special Judge, Bangalore Rural District in Special Case No.117/2006 for the offences punishable under Sections 419, 468, 114, 506 read with Section 34 of Indian Penal Code and Section 3 (1) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The Trial Court has sentenced the accused persons to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- for the offence under Section 419 of Indian Penal Code, simple imprisonment for a period of one year and Rs.1,000/- fine for the offence under Section 506 read with Section 34 of Indian Penal Code, simple imprisonment for a period of six months and Rs.2,000/- fine for the offence under Section 3 Sub- clause (1) Sub-clause (v) of Scheduled Castes and Scheduled Tribes Act, 1989, simple imprisonment for a period of two years and fine of Rs.5,000/- for the offence under Section 468 of Indian Penal Code and also simple imprisonment for a period of two years and Rs.5,000/- fine for the offence under Section 114 read with Section 468 of Indian Penal Code with default sentences.
3. Before adverting to the grounds urged before this Court by the learned Counsel for the appellants and as countered by the learned HCGP, it is just and necessary to have the brief factual matrix of the case.
4. The case of the prosecution is that a land bearing Sy.No.232 measuring 2 acres 19 guntas of Somathanahalli Village, was originally granted to one Sonnappa S/o Nanjappa, who is none other than the grandfather of PW5 and great grandfather of PW6. The said Sonnappa died long back. About 20 years after his death, the accused No.1 created a person as Sonnappa S/o Nanjappa and got a registered sale deed in respect of the said survey number vide registered sale deed dated 31.05.2005. Accused nos.2 and 3 are the attestors to the said document. The allegations are that the accused Nos.1 to 3 knowing fully well that the executant was not the person by name Sonnappa S/o Nanjappa, but he impersonated the said Sonnappa S/o Nanjappa and executed the sale deed. Therefore, it is alleged that all the accused persons colluded with each other in creating a fake person as Sonnappa S/o Nanjappa and got executed the sale deed. It is also the further case of the prosecution that when PWs.5 and 6 have requested accused No.1 to re-execute the sale deed in their favour and give up the property, the accused Nos.1 to 3 have threatened him with dire consequences and also abused them in filthy language referring to their caste and thereby it is the case of the prosecution that the accused persons have committed the above said offences alleged against them. The Special Court/Trial Court after securing the presence of the accused persons framed charges against them for the above said offences for which they were convicted. The accused persons have denied the allegations made against them and claimed to be tried.
5. The prosecution in order to bring home the guilt of the accused, examined 11 witnesses as PWs.1 to 11 and got marked Exs.P1 to P16. The accused were also examined under Section 313 Cr.P.C. but they did not choose to lead any defence evidence as such. After hearing both the sides, the Trial Court has recorded a judgment of conviction and order on sentence against the accused persons for the above said offences.
6. The learned Counsel for the appellants strenuously contends before the Court that there is absolutely no evidence before the Court in order to prove the guilt of the accused for the offences for which they were charged. The perfunctory investigation has been made and even accepting the examination-in-chief of all the witnesses, no case is made out against the accused persons. The Trial Court instead of putting the burden on the prosecution has wrongly put the burden on the accused stating that it is the accused persons who should have examined the executant of the sale deed so as to prove their title over the said property. Therefore, the Trial Court on that assumption and by means of conjectures and surmises, recorded the judgment of conviction which in no way stand to the judicial scrutiny and the same is liable to be set aside.
7. Per contra, the learned HCGP submitted that the Trial Court has passed a detailed and lengthy order discussing the evidence placed before the Court and therefore, there is no room to interfere with the said judgment of conviction and sentence passed by the Trial Court.
8. The learned Counsel for the appellants has taken me through the entire evidence. The evidence of the prosecution shows that PW1 is the person who was examined for the purpose of establishing some other transaction between the accused persons as well as one Narayanappa for the purpose of showing that the accused persons have also created one more sale deed with reference to the father of said Narayanappa, but on quarrel between them, they re-executed a sale deed in favour of Narayanappa, but that is not a fact in issue so far as this particular case is concerned. Even otherwise the said witness PW1 examined for the said purpose has not supported the case of the prosecution.
9. PW2 is the deed writer who prepared Ex.P4.
Ex.P4 is the sale deed alleged to have been executed by one Sonnappa S/o Ningappa in favour of accused No.1 to which accused Nos.2 and 3 are attestors. In fact the prosecution has favoured the accused persons by examining this PW2 because PW2 has stated that actually Sonnappa S/o Nanjappa has executed the sale deed in favour of accused No.1. He has identified the photographs of Sonnappa and Bheemesh in the sale deed Ex.P4 and he has also identified the signatures of accused Nos.2 and 3 as attestors to the said document. There is nothing elicited from the mouth of this witness that this person knowing fully well that the executant was not actually Sonnappa S/o Ningappa inspite of that, he prepared the sale deed and he also participated in registration of the said document. Not even a single suggestion has been made by the prosecution in this regard. It is only elicited that the police have told this witness that the said document is a fake sale deed and Sonnappa has not executed the said sale deed. That shows that this witness has absolutely no personal knowledge about the said sale deed actually who executed the same, but in the examination-in-chief, he has stated that Sonnappa S/o Nanjappa has executed the sale deed Ex.P4 in favour of accused No.1.
10. PWs.3 and 4 are the mahazar witnesses to Exs.P5 and P6. The said documents were drawn near the place of the said land wherein the accused persons were alleged to have abused and threatened PWs.5 and 6 when they asked for reconveyance of a document in their favour. These two witnesses have also not supported the case of the prosecution.
PWs.5 and 6 are the star witnesses to the prosecution. I would like to discuss the evidence of these two witnesses little later.
PW7 is the formal witness who registered the case on the basis of the complaint lodged by the paternal Uncle of PW5.
PW8 is the Sub-Registrar whose evidence is little bit relevant here itself. PW8 was working as a Sub-Registrar at that relevant point of time at Ramanagara. He has stated that on 31.05.2005 one Sonnappa S/o Ningappa aged 65 years of Kambalipura Village came to the Sub-Registrar Office along with accused No.1 Bheemesh, S/o Lakshman and executed a registered sale deed in favour of accused No.1. The said sale deed was with reference to Sy.No.232 measuring 2 acres 19 guntas. This witness also identified the photograph, signatures of Sonnappa S/o Ningappa as well as accused No.1 on the said sale deed. It is elicited from the mouth of this witness that he cannot say whether the said sale deed is a fake document and impersonated by some other person on behalf of Sonnappa S/o Ningappa. Therefore, except eliciting from the mouth of this witness in the examination- in-chief that Sonnappa has executed a sale deed in favour of accused No.1, nothing worth has been elicited from this witness so as to come to any conclusion that it is an impersonated document. On the other hand, the presumption has to be raised in respect of a registered document unless the contrary is proved that the persons whose names find a place in the sale deed are the persons who have entered into such transaction unless otherwise it is established before the Court that the said document was not actually entered into between those persons. No such suggestion has been made so far as this witness is concerned. It is also not forthcoming in the evidence of this witness that this witness and the document writers knew about Sonnappa S/o Ningappa and the person who actually executed the said document was not Sonnappa S/o Ningappa but some other person. In the absence of elucidating such materials from these two witnesses, in my opinion, the prosecution has not adequately established the case through these witnesses.
PW9 is the witness who has attested Ex.P6. It is another mahazar which is nothing but replica of Ex.P5 mahazar.
PWs.10 and 11 are the Investigating Officers. Before referring to the evidence of PWs.10 and 11, let me consider the evidence of PWs.5 and 6 who are the major witnesses to the case of the prosecution, as there are no serious discrepancies in the evidence of these two witnesses and they have almost spoken to in a similar manner in their examination-in-chief.
PW5 claims that he is none other than the grandson of the said Sonnappa S/o Ningappa and PW6 is the great grandson of the said Sonnappa S/o Ningappa. Both of them have stated in their evidence that Sonnappa died about 20 years ago. However, the revenue records pertaining to Sy.No.232 measuring 2 acres 19 guntas of Somathanahalli continued in the name of the said Sonnappa S/o Ningappa. Accused Nos.1 and 2 were known to this witness, but accused No.3 was not known. It is stated that accused No.1 has clandestinely secured a fake person from Kambalipura Village stating that the said person was Sonnappa S/o Ningappa and got executed the sale deed in his favour as per Ex.P4.
In fact, PWs.5 and 6 have stated that since the said sale deed was a bogus sale deed, they requested accused No.1 to execute a re-conveyance deed in favour of PWs.5 and 6, but he has not done so. On the other hand, he abused PWs.5 and 6 in filthy language referring to his caste and also attempted to assault these two witnesses. These two witnesses have stated that they were present at the time of drawing up of the mahazar witnesses-PWs.5 and 6 who are of no serious significance in this particular case. He has stated that the photograph and the signature and thumb impression found on Ex.P4 were not that of Sonnappa S/o Ningappa, but it belongs to some other person. Except this, these two witnesses have not stated anything about the impersonation of the said document, if so, by whom.
11. On careful scrutiny of the cross- examination and examination-in-chief of these two witnesses, they never produced before the Investigating Officer the photograph of Sonnappa S/o Ningappa or his thumb impression on any other earlier documents or his signature on other earlier documents so as to enable the Investigating Officer to compare the said photograph as well as the signature of the thumb impression with that of the photograph or thumb impression and signature found on Ex.P4 nor they have produced any document before the Court to show that the said Sonnappa S/o Ningappa died about 20 years ago and that as on the date of the said sale deed, he was not in existence. These are all important crux of the matter which ought to have been proved by means of producing certain documents for the purpose of facilitating the Investigating Officer. Therefore, the examination-in-chief led by the prosecution itself is so inadequate that no person or prudent man can come to any conclusion that the offences alleged against the appellants-accused persons have been proved.
12. In the above said backdrop, now let me consider the evidence of PWs.10 and 11 who are the responsible Investigating Officers of the cadre of Deputy Superintendent of Police. On careful perusal of the evidence of these two witnesses, they have also not made any efforts to secure any material atleast photograph of Sonnappa S/o Ningappa and the death certificate of the said person as well as any documents containing his signature or thumb impression so as to compare the same with that of the sale deed Ex.P4 whether the said document is actually forged by anyone or impersonated by anyone. Therefore, looking to the above said facts and circumstances as rightly contended by the learned Counsel for the appellants, there is absolutely no evidence against the accused persons.
13. In order to prove Section 419 of Indian Penal Code, the prosecution has to prove the definition as contained under Section 416, that is, to say a person in order to ‘cheat by personation’ if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
14. Therefore, the prosecution has to prove a person has cheated by pretending to be another person and by means of cheating that person, he must have represented himself or someother person represented himself as that of a person who was really not in existence or really not the person who actually ought to have executed a document. Only in such an eventuality, the offence can be said to have been proved. In this case, particular person who actually impersonated is not at all before the Court and no material is placed that actually some other person has represented Sonnappa S/o Nanjappa at the time of execution of the said sale deed Ex.P4.
15. Likewise, in order to establish the offence under Section 468 i.e., ‘forgery’, for the purpose of cheating, this also says that “whoever makes any false document or false electronic record or part of a document or electronic record with an intent to cause damage or injury to the public or any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. Therefore, in order to commit the forgery he must make signs or execute a document or part of a document as if he is the same person who was the original person who ought to have executed that document. Then only the definition of ‘forgery’ is attracted. In this case, no such person or no such documents are produced before the Court to show that actually Sonnappa S/o Ningappa was not in existence and he has not actually executed the said document so as to come to a conclusion that some other person has executed the said document impersonating the said Sonnappa S/o Nanjappa.
16. Therefore, the offences under Sections 468 and 419 of IPC as relied upon by the prosecution are not established. Even Section 114 of IPC also will not come to the help for the prosecution when these two major offences are not proved.
17. So far as Section 506 of IPC and Section 3 Sub-clause (1) and Sub-clause (v) of The Scheduled Castes and Scheduled Tribes Act, is concerned, the allegation in one sentence stated by PWs.5 and 6 is that they have requested the accused No.1 to reconvey the document in their favour, but he has abused them in filthy language by referring to his caste as ‘holeya’ and also attempted to assault him. But except the evidence of these two witnesses, no corroborative material is available on record. Further, added to that, it is not stated where actually at which place, at what time and before whom the said abusive words have been used by the accused persons. In order to attract the provisions under the Scheduled Castes and Scheduled Tribes Act, there must be abusive words used by the accused persons in the public view. No such allegations are there nor it is stated in the evidence that any other public was present at the time of that particular incident. Therefore, in the absence of any corroborative material to the evidence of these two witnesses, it cannot be said with all conclusiveness that the prosecution has proved the case beyond reasonable doubt.
18. As I have already narrated that the Trial Court after narrating the evidence of all the witnesses at paragraph-22 has thrown the burden on the accused instead of the prosecution. It has stated that the accused persons have not examined the executant of the sale deed to enter the witness box and other witnesses to prove their defence.
Here the defence of the accused is that the original Sonnappa S/o Nanjappa himself has executed the sale deed. According to PWs.5 and 6, the said Sonnappa is no more. So the question of the accused persons getting the executant to the witness box and examine that man does not arise. Therefore, this is a superfluous observation made by the Trial Court and has unnecessarily discussed the evidence in a perfunctory manner for the purpose of drawing the assumption with reference to the guilt of the accused without there being any iota of evidence the Court has imagined something and directed itself in a wrong manner to convict the accused. Therefore, the judgment of conviction and sentence passed against the accused persons is liable to be set aside.
19. Hence the following:
ORDER (i) The appeal is allowed.
(ii) The judgment of conviction and sentence passed by the II Additional Sessions Judge And Special Judge, Bangalore Rural District, Bangalore in Special Case No.117/2006 dated 07.05.2010 for the offence under Sections 419, 468, 114, 506 read with Section 34 of Indian Penal Code and Section 3 (1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hereby set aside.
(iii) Consequently, accused nos.1 to 3 are hereby acquitted of the charges leveled against them. If any fine amount is already deposited by them before the Trial Court, the same is directed to be refunded to them on proper acknowledgement.
JT/-
Sd/- JUDGE