Bail SlipThe v. State rep byThe Inspector of Police,Pochampalli Police Station

Bail SlipThe Appellants/Accused 1.Raju, 2.Saradhi @Rajammal , were directed to bereleased on Bail in and by the order of this court dated 6.12.2000 made inCrl.Mp.No. 9094 of 2000 in Crl.A.No.1134 of 2000 on the file of the Highcourt Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 13.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1134 of 20001.Raju2.Saradh @ Rajammal.. Appellant/AccusedVs.State rep byThe Inspector of Police,Pochampalli Police Station. .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated07.11.2000 made in S.C.No.192 of 1998 on the file of the III AdditionalSessions Judge, KrishnagiriFor Appellant :Mr.C.R.MalarvannanFor Respondent :Mr.V.R.BalasubramaninanAdditional Public ProsecutorJUDGMENTThe appellants, who have been charged under Section 419, 467 & 468IPC, challenge their conviction and sentence of 2 years RI under Section467 and a fine of Rs.1,000/- with default sentence and 2 years RI underSection 468 IPC with Rs.1000/- fine with default sentence and 2years RI under Section 419 IPC passed in S.C.No.192 of 1998 on the file ofthe III Additional Sessions Judge, Krishnagiri, in this appeal.bs2.The case of the prosecution is that both A1 and A2 have forged anagreement of sale dated 18.6.1994 as though it was executed by oneThimiyammal, the aunt of A2, in order to grab at the property of thedeceased Thimiyammal. The accused have also been charged under Sections302, 404 & 201 IPC. But the trial Court has acquitted both the accused https://hcservices.ecourts.gov.in/hcservices/ against the charge under Section 302, 404 & 201 IPC on the ground that theprosecution has failed to prove the guilt of the accused under Section302, 404 & 201 IPC.3.After taking cognizance of the offence, the learned JudicialMagistrate, Uthangarai, had issued summons to the accused and on theirappearance copies under Section 207 of Cr.P.C., were furnished to theaccused and since the case is triable by the Court of Sessions, thelearned Judicial Magistrate had committed the case under Section 209 ofCr.P.C., to the Court of Sessions. The learned Sessions Judge, who hadtried the case, on appearance of the accused framed charges under Section419, 467, 468, 302, 404 & 201 IPC and when questioned, the accused pleadednot guilty.4.Before the trial Court P.W.1 to P.W.19 were examined and Ex.P.1 toEx.P.32 were exhibited and M.O.1 to M.O.19 were marked.5.P.W.1 is a nephew of the deceased Thimiyammal. He is the son ofthe complainant Raji Naidu. He would admit that the deceased Thimiyammalwas the sister of Raji Naidu, his father, and that the deceasedThimiyammal was a widow and she had no issues and that he (P.W.1) and hissister A2 were brought up by the deceased Thimiyammal. He would admitthat A1 is also the son of his another aunt to whom A2, his sister, wasgiven in marriage. He would further admit that his aunt Thimiyammal wasgiven in marriage to one Govindasamy as a second wife and when A1 tried toplough the land belonging to Thimiyammal, the son born to Govindarajan,husband of Thimiyammal, through his first wife obstructed and there is acivil suit pending between A1 and Murugesan, the son born to Govindarajanthrough his first wife. There was also a panchayat took place in thisregard and in the panchayat it was decided that the land conveyed byGovindarajan in favour of the deceased Thimiyammal should be reconveyed inthe name of Murugesan, the son born through the first wife of Govindarajanand it has further been resolved in the said panchayat that 50 cents oflands shall be conveyed in favour of A1 and also a sum of Rs.12,000/- tobe given by Thimiyammal in favour of A1 for he having borne the medicalexpenses of Thimiyammal and her husband Govindarajan. He would furtherdepose that his father came to his house at Hosur and enquired whetherThimiyammal came to his house and further informed that her whereaboutswere not known for the past one week. According to P.W.1, the informationhe had received from his father was that on 17.6.1994, A1 had invitedThimiyammal to Hosur. He would further depose that his uncle MegalaiNaidu also enqired about Thimiyammal with A1, but A1 had replied that hisaunt Thimiyammal had already conveyed her land in his name, but he did notknow the whereabouts of Thimiyammal. On suspicion his father hadpreferred Ex.P.1-complaint against the accused and that his father isalso now no more. According to him, on 26.7.1994 he saw A1 in Burgoorpolice Station at about 9.00 am while he was giving confession statementbefore the Inspector of Police and that he also accompanied with theInspector of Police and other witnesses along with A1 to the place ofoccurrence where he had identified the corpse of his aunt Thimiyammal https://hcservices.ecourts.gov.in/hcservices/ through the wearing apparels of the deceased and also identified the hairof Thimiyammal. M.O.1 & M.O.2 are the wearing apparels of Thimiyammal andM.O.3 is the hair of Thimiyammal. According to him, even while his auntThimiyammal was alive she had conveyed her ear-stud and gold thali chainweighing about 9 soverigns to A1.6.P.W.2 has not supported the case of the prosecution.7.P.W.3 is the then VAO of Parandampalli, who had recorded thestatement of A1 on 29.6.1994 at about 12 noon. Ex.P.3 is the confessionstatement of A1. He has prepared Ex.P.4-report and handed over A1 to thepolice along with his confession statement. Ex.P.5 is the admissibleportion of the confession statement of A1. M.O.4 & M.O.5, the ear stud andtholi were recovered from the house of A1 by the Inspector of Police inhis presence under Ex.P.6-mahazar. Ex.P.7-document was also recoveredfrom one Krishnan under Ex.P.8 in his presence by the Inspector of Police.8.P.W.4, P.W.5 & P.W.6 have turned hostile. 9.P.W.7 is a witness in Ex.P.7-document alleged to have been forgedby A1 and A2. He would identify Ex.P.10 & Ex.P.11 are his signatures.Thereafter, he has not supported the case of the prosecution. Hence, hewas also treated as hostile witness.10.P.W.8 is the person who had seen the corpse of the deceasedThimiyammal near Thima Goundanur, in a ucalyptus garden in a decomposedstage and that he immediately rushed to the Sikkarnapalli VAO andpreferred Ex.P.12-complaint.11.P.W.9 is the then VAO of Sikkarnapalli who would depose that on20.6.1994 P.W.8 came to his office and informed about the lying of acorpse in a decomposed stage and that immediately he went there and sawthe corpse and prepared Ex.P.13-report and thereafter informed the policeand that the Sub-Inspector of police immediately rushed to the place wherethe corpse was lying and seized the lazer blade near the corpse.12.P.W.12 is the doctor, who had conduced autopsy on the corpse ofThimiyammal and issued Ex.P.15-postmortem certificate. 13.P.W.11 is the retired Sub-Registrar. He was the sub-registrar ofUthangarai at the relevant point of time. He would admit that Ex.P.7agreement of sale was registered in Uthangarai Sub-Registrar's officewhile he was working as the sub-registrar in the said office. He speaksabout the procedure for registering a document. For registering Ex.P.7both the vendor Thimiyammal as well as the vendee Raji have affixed thethump impression and signature respectively in the register maintainedfor the said purpose in his office. The said document Ex.P.7 was producedon 15.6.1994 and the same was registered on 20.6.1996 and both the partiesalong with the witnesses have signed in the document in his presence on15.6.1994. https://hcservices.ecourts.gov.in/hcservices/

14.P.W.12 has not supported the case of the prosecution.15.P.W.13, who knows about the accused as well as the deceasedThimiyammal, would admit that there are civil suit and criminal casepending between the A1, deceased Thimiyammal and Murugesan, the foster sonof Thimiyammal. He also speaks about the panchayat which took place about6 or 8 months before the death of Thimiyammal and that in the panchayat ithas been decided that Thimiyammal shall give 50 cents of land to A1 andalso Rs.12,000/- and another 90 cents of land to her foster son Murugesan. 16.P.W.14 is the postmortem constable, who had produced the corpse ofThimiyammal before the doctor, who had conducted the postmortem on21.6.1994 and after the postmortem, P.W.14 had removed the saree, jacketand metti from the corpse and handed over the same to the Sub-Inspector ofpolice. He has identified M.O.1 and M.O.2 as the saree and jacket removedfrom the corpse of Thimiyammal.17.P.W.15 is the then Sub-Inspector of Police, Bargoor PoliceStation, who had received Ex.P.12 and Ex.P.13 viz. Extra-judicialconfession statement of the accused and the report of the VAO, andregistered the case against the accused under Cr.No.171 of 1994 underSection 174 of Cr.P.C. Ex.P.16 is the FIR. He had visited the place ofoccurrence and saw the decomposed corpse of the deceased Thimiyammal.Ex.P.17 is the rough sketch prepared by him. Ex.P.10 is the observationmahazar prepared by him in the presence of the witnesses. He has alsorecovered M.O.6-lazer blade under Ex.P.19 from the place of occurrence.Ex.P.20 is the inquest report. Ex.P.2 (series) are the photoes taken forthe corpse. He had handed over the records to the Inspector of Police forfurther investigation.18.P.W.16 is the then Inspector of Police at Pochampalli PoliceStation, to whom the deceased Raju Naidu had preferred Ex.P.1-complaint on27.06.1994 at about 10.00 am. He had registered the case under Cr.No.183of 1994 on the basis of Ex.P.1 as woman missing. Ex.P.22 is the FIR.Ex.P.21 is the endorsement made in the complaint. He had examined thewitnesses and recorded their statements. On 29.6.1994 P.W.3-VAO hadproduced the accused at about 12 noon along with the extra-judicialconfession statement recorded by him along with his special report.P.W.16 had altered the charge to section 302 IPC and prepared a copy ofexpress FIR under Ex.P.23. 19.P.W.17 is the expert witness. He is working as an Inspector inForensic Science Laboratory in the finger print wing. According toP.W.17, she had received some finger prints connected with this case forexamination along with Ex.P.24-requisition from the Court. She has markedthe finger prints in the sale agreement as D1 to D.4 and the admittedthumb impression in a vakalat as D5. She had marked the finger prints inthe deed of compromise as D6. She has also assigned S1 to the left thumbimpression of A2 and S2 to the left thumb impression of A1. She hadcompared the disputed thumb impression in D1 to D4 with that of the https://hcservices.ecourts.gov.in/hcservices/ admitted thumb impression of A1 and A2 in S1 and S2 and D5 and D6, and hasopined that the disputed thumb impression in D1 to D4 belongs to A1 andA2. Ex.P.26 is the report submitted by P.W.17, the finger print expert.20.P.W.18 is the Inspector of Police, who had conducted furtherinvestigation in this case. He had recorded the confession statement ofA1 and seized his wearing apparels M.O.7 to M.O.9 and visited the place ofoccurrence and also perused the record relating to Cr.No.174 of 1994,which was registered under 174 of Cr.P.C., by the Bargoor police. He hadreceived M.O.1 to M.O.4 seized by Bargoor police from the corpse. WitnessNaidu has also identified M.O.1 to M.O.4 as the wearing apparels of thedeceased. He has also seized M.O.4, a pair of ear stud under Ex.P.3-mahazar in the presence of the witnesses Kamalesan and Shanmugam. He hasalso recovered Ex.P.7-agreement from one Krishnan in the presence of thesame witnesses under Ex.P.6-mahazar. He has also examined the witnessesand recorded their statements. He has received the file from the Bargoorpolice station relating to crime No.174 of 1994. Ex.P.26 is the letter ofrequisition given to the Forensic Science Laboratory for getting expert'sopinion in respect of the disputed thumb impression in the sale agreementwith that of the admitted thumb impression of the accused. Ex.P.23 is theexpert's opinion and Ex.P.28 is the Serologist's report. He has arrestedA2 on 23.11.1994 and recorded her confession statement in the presence ofthe witnesses Shanmugam and Annamalai and has produced A2 before theMagistrate for judicial remand. He has also received the documentsconnected with this case under Ex.P.30. Ex.P.31 is the letter ofrequisition addressed to the Judicial Magistrate for sending the materialobjects connected with this case for chemical examination.21.P.W.19 is the Inspector of Police, who is a successor of P.W.18.After following the other formalities, P.W.19 has filed the final reportagainst the accused under Section 467, 468, 302, 419, 404 & 201 IPC on29.11.1996.22.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., they denied their complicity with the crime.After going through the evidence both oral and documentary, the learnedtrial judge has come to the conclusion that the charge under Section 302,404 and 201 IPC have not been proved against the accused, but the chargeunder Section 419, 467 & 468 IPC have been proved against the accused andaccordingly convicted both A1 & A2 under Section 419 IPC and sentenced toundergo 2 years RI and convicted A1 & A2 under Section 467 IPC andsentenced to undergo 2 years RI and a fine of Rs.1000/- with defaultsentence and convicted A1 & A2 under Section 468 IPC and sentenced toundergo 2 years RI and to pay a fine of Rs.1000/- with default sentence.Aggrieved by the findings of the learned trial judge the accused havepreferred this appeal.23.Now the point for determination in this appeal is whether theconviction and sentence under Section 419, 467 & 468 IPC are sustainableor to be set aside for the reasons stated in the memorandum of appeal? https://hcservices.ecourts.gov.in/hcservices/

24.The Point:- 24(a) The impugned registered agreement of sale saidto have been forged by A1 and A2 in the name of Thimiyammal, the deceased,is Ex.P.7. P.W.7 is the witness, who speaks about the registration ofEx.P.7 by A1 and A2. Even though P.W.7 was treated as a hostile witnesshe would admit in the chief examination that Ex.P.10 & Ex.P.11, signaturesin Ex.P.7, belong to him. He would specifically state that only at therequest of A1, he had signed in Ex.P.7 in two places. He has alsoidentified Ex.P.7 as the document in which he has put Ex.P.10 & Ex.P.11signatures. He would further depose to the fact that A1 had informed himthat he is going to register a settlement and sale deed. In the cross-examination he would admit that only one document alone was registered onthat date.24(b)P.W.11 is the then Sub-Registrar of Uthangarai. He would admitthat Ex.P.7, impugned document, was registered in his office. He wouldadmit that both A1 and A2 have signed and affixed their thumb impressionrespectively in Ex.P.7 and that Ex.P.7-document was produced in the officeon 15.6.1994 and registered on 20.6.1994. The prosecution has relied onthe evidence of P.W.17, who is a finger print expert, who had compared thedisputed finger prints in Ex.P.7, which were marked as D1 to D4 with thatof the admitted finger prints of A1 & A2 in S1 & S2, and has givenEx.P.25-report. Basing on the evidence of P.W.17, P.W.11 & P.W.7 and alsoon the report of P.W.17 under Ex.P.25, the learned trial judge has come tothe unassailable conclusion that the charges against the accused underSection 419, 467 & 468 IPC have been proved beyond any reasonable doubt. 24(c) The learned counsel appearing for the appellantsMr.C.R.Malarvannan relying on AIR 1963 SC 1572 (Dr.Vimla Vs. The DelhiAdministration), would contend that to fasten with the liability underSection 467, 468 IPC it must be proved that the person affected must havebeen deceived and injured. The learned counsel would submit that theexpression 'defraud' involves two elements, namely, deceit and injury tothe person deceived. Injury is something other than economic loss thatis, deprivation of property, whether movable or immovable, or of money,and it will include any harm whatever caused to any person in body, mind,reputation or such others, as held by the Honourable Apex Court in theabove cited ratio, and that there is absolutely no evidence in this caseto show that a person deceived had not deprived of any property, but onlythe accused have executed Ex.P.7, which is only a sale agreement and not asale deed. The facts of the above cited ratio is that:"the appellant is the wife of one Siri Chand Kaviraj. OnJanuary 20, 1953, she purchased an Austin 10 Horse Power Car withthe registration No.DLA-4796 from Dewan Ram Swarup in the name ofher minor daughter Nalini aged about six month at that time. Theprice for the car was paid by Dr.Vimla. The transfer of the carwas notified in the name of Nalini to the Motor RegistrationAuthority. The car at that time was insured against a policyissued by the Bharat Fire and General Insurance Co., Ltd., andthe policy was due to expire sometime in April, 1953. On a https://hcservices.ecourts.gov.in/hcservices/ request made by Dewan Ram Swarup, the said policy was transferredin the name of Nalini. In that connection, Dr.Vimla visited theInsurance Company's Officer and signed the proposal form asNalini. Subsequently, she also filed two claims on the groundthat the car met with accidents. In connection with theseclaims, she signed the claim forms as Nalini and also thereceipts acknowledging the payments of the compensation money asNalini. On a complaint made by the company alleging fraud on thepart of Dr.Vimla and her husband, the police made investigationand prosecuted Dr.Vimla and her husband Siri Chand Kaviraj in theCourt of Magistrate 1st Class Delhi. Both the accused werecharged under Section 120-B, 419, 467 & 468 of the Indian PenalCode. The learned Sessions Judge had acquitted both the accusedon the ground that no case has been made out against them. TheState had preferred an appeal before the High Court at Punjab,which also confirmed the order of acquittal passed by the trialJudge under Section 419 IPC, but set aside the order of acquittalunder Section 467 & 468 IPC and accordingly convicted andsentenced both the accused till raising of the Court and to pay afine of Rs.100/- with default sentence. Dr.Vimla has preferredan appeal before the Honourable Apex Court. While allowing theappeal preferred by Dr.Vimala, the Honourable Apex Court hasobserved as follows:-"the expression "defraud" involves two elements, namelydeceit and injury to the person deceived. Injury is somethingother than economic loss that is, deprivation of property,whether movable or immovable, or of money, and it willinclude any harm whatever caused to any person in body, mind,reputation or such others. In short, it is a non-economic ornon-pecuniary loss. A benefit or advantage to the deceiverwill almost always cause loss or detriment to the deceived.Even in those rare cases where there is a benefit oradvantage to the deceiver, but no corresponding loss to thedeceived, the second condition is satisfied.Now let us apply the said principles to the facts of thepresent case. Certainly, Dr.Vimla was guilty of deceit, forthough her name was Vimla, she signed in all the relevantpapers as Nalini and made the insurance company believe thather name was Nalini, but the said deceit did not eithersecure to her advantage or cause any non-economic loss orinjury to the insurance Company. The charge does notdisclose any such advantage or injury nor is there anyevidence to prove the same. The fact that Dr.Vimla said thatthe owner of the car who sold it to her suggested that thetaking of the sale of the car in the name of Nalini would beuseful for income-tax purposes is not of any relevance in thepresent case, for one reason, the said owner did not say so,in his evidence and for the other, it was not indicated inthe charge or in the evidence. In the charge framed, she wasalleged to have defrauded the insurance company and the only https://hcservices.ecourts.gov.in/hcservices/ evidence given was that if it was disclosed that Nlini was aminor, the insurance company might not have paid the money.But as we have pointed out earlier, the entire transactionwas that of Dr.Vimla and it was only put through in the nameof her minor daughter for reasons best known to herself. Onthe evidence as disclosed, neither was she benefited nor theinsurance company in curved loss in any sense of the term."The above said dictum will not be applicable to the present facts of thecase on hand because it has been proved in this case through P.W.17 andP.W.11 that A2, wife of A1, had signed in Ex.P.7 as impersonator ofThimiyammal, the deceased, as a vendor. A1 has signed in Ex.P.7 as avendee so as to appear that Thimiyammal had executed the agreement of salein respect of her property in favour of A1. Unfortunately in this casethree days later Thimiyammal died under mysterious circumstance. Even inEx.P.1-complaint preferred by the father of A2, it is clear that both A1and A2 have an eye over the property of Thimiyammal. Only to get awrongful gain and to make a wrongful loss to Thimiyammal both the accusedhave forged Ex.P.7-document. Under such circumstances, the conviction ofA1 and A2 by the learned trial judge under Section 419, 467, & 468 IPCcannot be held to be erroneous.24(d) The learned counsel appearing for the appellants relying on AIR1976 SC 1139 (Krishan Lal Vs. State of Delhi), would contend that theoffence alleged to have been committed by A1 & A2 is not so grave andhence some leniency can be shown on the accused regarding punishment. Inthe above cited dictum the accused who is a postal employee had forged thesignature of a payee to get money order amount. The relevant observationin the above said dictum relied on by the learned counsel for theappellants is as follows:-"It is also true, as observed by Mr.Justice Krishna Iyer inhis order dated 8.7.1975 in the Special Leave petition(Criminal) No.586 of 1975 (SC) that "It is the lesser minionswho get caught and purging public life of maxi-corruption bydeterrent sentences is more desirable but less feasible." Butat the same time it must be remembered that the gravity ofoffences such as this committed by public officials cannot beallowed to be minimised by misconceived judicial compassion. Wedo not think that in the circumstances of the case the sentenceof six months' imprisonment imposed by the High Court can besaid to be harsh or unjustified."Relying on the above said dictum the learned counsel would contend that ifthis Court comes to the conclusion that the conviction of A1 & A2 underSection 419, 467 & 468 IPC cannot be set aside, then it may award lesserpunishment of six months RI to both the accused. It is admitted that thedeceased Thimiyammal is none other than the aunt of A2 and the factremains that she was issueless widow having some properties. It is alsoadmitted that the said Thimiyammal had a foster son by name Murugesan bornthrough her husband through his first wife and that there was a civildispute pending between the said Murugesan and A1, who made an attempt to https://hcservices.ecourts.gov.in/hcservices/ plough the land belonging to Thimiyammal was obstructed by the saidMurugesan. Under such circumstances, it is clear that only to grab at theproperty of Thimiyammal the accused have connived together and committedthe crime. Even though they have been acquitted from the charge underSection 302 IPC, for want of evidence, for having committed the murder ofThimiyammal they have been rightly convicted by the learned trial judge onthe basis of the evidence available against them under Section 419, 467 &468 IPC. Taking into consideration the circumstances of the case and alsothe fact that A1 is now aged about 58 years and A2 is aged about 42 andalso the representation made by the learned counsel that the accused arehaving a female child, I am of the view that some leniency can be shown onthe sentence. Point is answered accordingly.25.In the result, the appeal is dismissed confirming the convictionpassed by the III Additional Sessions Judge, Krishnagiri, in S.C.No.192 of1998, but the sentence alone under Sections 419, 467 & 468 IPC is modifiedto that of one year RI each instead of 2 years RI each respectively. Inother respects the findings of the learned trial judge is herebyconfirmed. The trial Court is directed to secure the accused and sentthem to prison to undergo the unexpended portion of the sentence.sd/-Asst.Registrar/true copy/Sub Asst.Registrarssv To,1.The III Additional Sessions Judge, Dharmapuri at Krishnagiri.2.-do-The District and Sessions Judge, Dharmapuri at Krishnagiri.3.The Judicial Magistrate, Uhangarai.4.-do-The Chief Judicial Magistrate, Krishnagiri.5.The Public Prosecutor, High Court, Madras.6.The Inspector of Police, Pochampalli Police Station. 1 cc to Mr.N.Mohideen basha Advocate SR.NO.42606AKR(co)RD 24.7.07Crl.A.No.1134 of 2000