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2000 DIGILAW 294 (PAT)

Shushila Devi v. Ram Naresh Bhagat

2000-02-21

INDU PRABHA SINGH

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Judgment I.P.Singh, J. 1. This revision petition is directed against the judgment and order dated 20.12.1996 passed by the Judicial Magistrate 1st Class, Muzaffarpur, in G.R. No. 731/85, TR No. 87/96, whereby the learned Magistrate has acquitted the members of the opposite party for the offences punishable under Sections 419, 420 and 423 of the Indian Penal Code. 2. In short the prosecution case is that on 20th March, 1995, the petitioner filed a complaint petition bearing Complaint Case No. 111/95 against the accused persons with reference to the occurrence dated 21.3.1984 to 26.4.1984 for the offences punishable under Sections 419, 420 and 423 of the Indian Penal Code stating therein that the father of the petitioner, Jagdish Bhagat have three brothers, namely, Ram Sahay Bhagat, Ram Naresh Bhagat and Ram Pravesh Bhagat, who were living separately after partition. It has been stated that the wife of Jagdish Bhagat died in the life-time of their father and thus, the petitioner is sole heir and legal representative after the death of her father in the year 1976. The petitioner has acquired about 5 bighas land, house and sairat. The opposite-party No. 2, who is the uncle of the petitioner, told the petitioner to execute kebala, but she refused to do so. The opposite-party No. 3 is a minor son of opposite-party No. 1 in whose name opposite-party No. 1 got registered-deed of gift executed by another lady impersonating her and the rest of the accused persons knowingly identified her and became witness on the deed. The deed-writer opposite-party No. 5 has created false documents. On 30.12.1984, the petitioner reached at her house but the opposite-party turned her out. Thereafter, the petitioner rushed to the Registry Office and came to know about the false and created deed of gift and after knowing this fact she organised a panchayati of independent persons, who were also witnesses of the case in which opposite-party No. 2 has accepted his guilt and gave assurance that he would execute the document of ladavi, but he always delayed the matter and on 19.3.1985 the opposite-party No. 2 refused to comply the decision of the panchayati and as such the accused persons have created a false registered-deed of gift in the name of the opposite-party No. 2 with respect to 5 bighas of land. 3. 3. The learned Judicial Magistrate forwarded the complaint petition under Section 156(3), Cr PC to the officer-in-charge Town PS, Muzaffarpur for instituting a case and submitting a report after completion of the investigation. Accordingly, Case No. 168/85 under Sections 419, 420 and 423 of the Indian Penal Code was registered and after completion of the investigation charge-sheet under the aforesaid Sections was submitted against the accused persons including the minor son of opposite-party No. 1. Thereafter, cognizance was taken and the trial concluded with the result as stated above. 4. The case of the petitioner is that she inherited paternal property and her uncle Ram Naresh Bhagat set up some other lady naming her Shushila Devi (petitioner) and obtained a gift-deed of the paternal property which the informant had inherited in the name of his minor son and the accused persons committed criminal offence of cheating. Thereafter, the petitioner also organised panchayati but the same ended with no result. The defence version is that the parents of the petitioner died when the petitioner was hardly of five years and she was brought by the uncle Ram Naresh Bhagat, who also got her married with a suitable match. According to defence, the petitioner voluntarily executed the gift-deed of her paternal property in favour of younger cousin (son of Ram Naresh Bhagat). The petitioner on the influence of maternal uncle has filed a case in Consolidation Court and in Criminal Court. The Consolidation Court upheld the mutation in the name of the son of Ram Naresh Bhagat and a writ against the judgment and order of Consolidation Court was filed by the petitioner which has been disposed of by this Court but the same is subjected in the Court below. 5. In this case, the relevant evidence for consideration is whether the thumb impression of the informant, Shushila Devi is there on the deed or not which could only be ascertained by the evidence of the expert. In this case PW 8, Md. Shamim Alam has been examined as expert witness by the prosecution. The expert opinion on the record was given by one Shri Mahendra Narayan Singh, Chief Examiner, Directorate of Finger Expert Bureau, Bihar. In this case PW 8, Md. Shamim Alam has been examined as expert witness by the prosecution. The expert opinion on the record was given by one Shri Mahendra Narayan Singh, Chief Examiner, Directorate of Finger Expert Bureau, Bihar. The opinion is that the examination was carried by Krishna Kumar, Dina Nath and Shamim Alam and the trial Court rejected the evidence of PW 8 as he did not give any written information and did not sign the report placed on the record. Of course, the case was an old one. The learned Magistrate has not taken any effective step to swear in affidavit by Mahendra Nr. Singh, who was a minor witness in this case, while hearing the case. The learned Magistrate was required to call upon the minor witness to depose in the case for taking appropriate decision. But, the Court below failed to take such decision which was very necessary for deciding the case. Accordingly, the order and judgment passed by the learned Magistrate is set aside and the case is remitted to the Court below to examine the material witness. Mahendra Narayan and also after giving opportunity to the accused persons to examine any expert, if so. After closure of the evidence, the Court below shall write out fresh judgment on the facts available on the record. Accordingly, this revision petition is allowed.