Rajasthan High Court - Jaipur
Chauthu Ram And Ors. vs State Of Rajasthan And Anr. on 23 November, 2004
Equivalent citations: 2005CRILJ1051, RLW2005(2)RAJ775, 2005(1)WLC663
Author: Prakash Tatia
Bench: Prakash Tatia
ORDER Prakash Tatia, J.
1. The facts of the case are that the complainant-Manga Ram submitted a criminal complaint under Sections 420, 465, 466, 467 and 468, I.P.C. read with Section 120B. I.P.C. against 11 persons alleging therein that the complainant and the accused Nos. 1 to 4 namely, Ramu, Chautu, Sua and Chhotu were the co-sharers in agricultural land bearing Khasra Nos. 231/1, 432/1, 426, 381 and 189 situated in village Sunariya and Dalatpura. Since the complainant-Manga Ram was not keeping the good health, therefore, his all four brothers (accused) were cultivating the land. The complainant, in his complaint, stated that the accused Nos. 2 to 4 were not giving share in the crop also and they started quarrelling with him. Not only this but the accused persons by forging thump impression of the complainant, sold the land by registered sale deed dated 14-7-1982. In the complaint, it is submitted that out of two accused, Jeevan and Kushla, one put his thumb impression representing himself to be the complainant. The complaint was forwarded under Section 156(3), Cr.P.C. to the concerned police station, upon which Case No. 86/1982 was registered. After investigation, the challan was filed against seven accused persons, namely, Chauthu, Chhotu, Sua, Jeewan, Mal Singh, Kushala Ram and Shanker Puri for offences under Sections 465, 466, 467, 419, 420 and 120B, I.P.C. On 30-11-1984, cognizance against three more persons was taken by the Court. Those were Sohan, Bhag Chand and Madan-Lal. Accused Kushal Ram died and proceedings against him was dropped by the trial Court vide order dated 1-9-1988. After hearing the arguments for framing the charge, the trial Court vide order dated 14-12-1988 framed the charges against the above persons except Kushala Ram for offences under Section 468 read with Sections 120B and 419 read with Section 120B, I.P.C. only.
2. The prosecution produced witness P.W. 1 Balwant Singh, who was Tehsildar at the relevant time when the sale-deed Ex. P. 1 was registered, P. W. 2 Kana Ram s/o complainant-Manga Ram, P. W. 3 Bhagwan Sahat, Clerk in the office of the Sub-Registrar, P.W. 4 Mohan Lal, Deed Writer, P.W. 5 Hanuman Singh, P. W. 6 Magan Singh, P. W. 7 Ganesh, P. W. 8 Amar Singh, P. W. 9 Gheesa Lal and P. W. 10 Banshidhar, Patwari. The accused persons were examined under Section 313, Cr.P.C. The accused persons produced no evidence in defence.
3. The trial Court vide judgment dated 14-8-1991 acquitted the accused Sohan Lal, Bhag Chand and Madan Lal from the charge under Sections 468/120B, 419/120B, I.P.C. The trial Court also acquitted accused Chautu, Sua, Mal Singh and Shanker Puri from the charge under Section 419/120B and acquitted Jeewan from the charge of offence under Section 468/120B, I.P.C.
4. The accused Chauthu, Sua, Chhotu, Mal Singh and Shanker Puri were convicted under Section 468/120B and sentenced them to undergo simple imprisonment for two years and a fine of Rs. 500/- and in default of payment of fine to further undergo three months' simple imprisonment and convicted Jeewan under Section 419/120B, I.P.C. and sentenced him to undergo one year's simple imprisonment and a fine of Rs. 100/- and in default of payment of fine, to further undergo one month's simple imprisonment.
5. The main witness and complainant-Manga Ram and Ramu Ram whose thumb impressions are alleged to have been forged on the sale deeds died, hence their statements were not recorded. The trial Court considered the statements of the witnesses but more relied upon the statement of P.W. 2 Kana Ram son of complainant. He stated that the land in question was the joint property of accused persons and of his father. His statement finds support from statement of P.W. 10 Banshi Dhar who was the Patwari of the area and who produced copy of the Jamabandi of the land in dispute Ex. P. 8 wherein names of Ramu, Chautu, Mangala, Sua and Chhotu all sons of Mewa were entered as Khatedar tenants. In the trial Court, the prosecution did not produce Fingerprint Expert nor tendered in evidence the report of the Fingerprint Expert though the fingerprint report was obtained from the office of the Finger Print Bureau, Rajasthan, Jaipur. The trial Court held that since the fingerprint report is admissible in evidence under Section 293(iv)(g), therefore, it can be looked into and relying upon the said report, held that the thumb impressions of Mangala and Kushala Ram on the sale-deed Ex. P. 1 are forged one and are not of said Mangala and Kushala. The trial Court also observed that accused Mal Singh and Shanker Purl, knowingly identified Kushala as Ramu and Jeewan as Mangala despite the fact that they knew it well that those persons are not Ramu and Mangala.
6. The accused Chautu, Sua, Chhotu, Shanker, Jeewan and Mal Singh preferred appeal against the judgment of the trial Court dated 14-8-1991. During the pendency of the appeal, Mal Singh died and, therefore, the appeal remained pending for rest of the five accused. The appellate Court dismissed the appeal of all the accused-persons vide judgment dated 12-7-1994. Hence this revision by the five accused-persons.
7. Heard learned counsel for the petitioners and the learned Public Prosecutor and perused the record.
8. The learned counsel for the petitioners vehemently submitted that both the Courts below have committed serious error of law in convicting petitioners for the offences under Sections 468/120B and 419/ 120B, I.P.C. According to the learned counsel for the petitioner, the prosecution failed to prove that the thumb impression of any of the persons on the sale-deed dated 14-7-1982 (Ex. P. 1) is forged one. According to the learned counsel for the petitioners, out of 10 witnesses, three witnesses P.W. 5 Hanuman Singh, P.W. 6 Magan Singh and P. W. 7 Ganesh turned hostile. From the statements of the rest of the witnesses even remotely it cannot be gathered that they have proved thumb impressions of any of the executants as forged one. The best evidence which was available to the prosecution was Fingerprint Expert and his report but neither Fingerprint Expert was produced nor even the finger print report was tendered in evidence. Even no question was put to the accused about the said report, therefore, the entire finding passed on the alleged finger print report is a finding based on no evidence. Both the Courts below misconstrued the Section 293(iv)(g), Cr.P.C. (wrongly mentioned as Clause (g) in the judgment of the trial Court, the relevant is Clause (c))., A document which is admissible in evidence but has not been tendered in evidence and which has not been proved in accordance with law, is not evidence in the eye of law. The Courts below failed to draw distinction between admissibility of a document and its proof. It is also submitted that mere production of document or tendering it in evidence is not sufficient. It is required to be proved in accordance with law. The opinion of Expert is only an opinion and the Expert is required to prove his opinion and unless an opportunity of cross-examination is provided, the evidence of Fingerprint Expert also is of no value. According to the learned counsel for the petitioners, it is a case of no evidence, therefore, this Court can well within its revisional jurisdiction to interfere with the order of the Courts below and the order of conviction is absolutely without jurisdiction as the same is based on no evidence. The learned counsel for the petitioners further submitted that there is no eyewitness who has seen putting thumb impressions of Ramu or Mangala on the document executed. Contrary to it, the evidence of P.W. 1 Balwant Singh, Tehslidar-cum-Sub-Registrar, P.W. 4 Mohan Lal, Deed Writer fully proved that the deed was executed by all the executants of the sale-deed dated 14-7-1982.
9. The learned P. P. supported the judgments of the two Courts-below and submitted that both the two Courts-below after appreciation of the evidence, recorded finding of fact against the petitioners-accused persons and held them guilty for the offences under Sections 468/120B and 419/120B, IPC. The learned P. P. admitted that the finger print report was not tendered in evidence and Fingerprint Expert himself was not produced by the prosecution but at the same time, the learned P. P. submits that the report is admissible in evidence and the court can look into the report itself to find out the truth. The trial Court as well as the appellate Court, therefore, rightly considered the report of the Fingerprint Expert and they rightly arrived at the conclusion that thumb impression of Mangala and Ramu have been fabricated and forged on Ex.P. 1 sale-deed dated 14-7-1982.
10. I considered the submissions of the learned counsel for the parties and perused the record.
11. The main thrust of the argument of the learned counsel for the petitioner is that the only evidence about putting the forged thumb impression of Mangala and Ramu, relied upon by the two courts-below, is finger print report. It is true that the said report was never tendered in evidence nor any exhibit mark has been put on this report. Section 293, Cr.P.C. says that any document purporting to be a report under the hand of Government Scientific Expert to whom Section 293 applies, given after examination or analysis by him in the course of any proceeding under the Code of Criminal Procedure may be used as evidence, not only in an enquiry but also in trial and other proceeding under the Code of Criminal Procedure. However Sub-section (2) of Section 293, Cr.P.C. Provides that the Court may if thinks fit, summon and examine any such Expert. Therefore, the report which is already available on record and issued by the Director, Finger Print Bureau, Rajasthan, Jaipur, could have been looked into by the courts-below. However, this may make the report a piece of evidence and not more than that even under Section 293, Cr.P.C.
12. Section 313, Cr.P.C. provides that the accused is required to be given opportunity to explain any circumstance appearing in the evidence against him. If the prosecution intends to use the said report as a piece of evidence, as circumstance appearing against the accused persons, then it should have been put to the knowledge of the accused by the Court by pointing out the accused about the said report so that the accused persons could have explained the circumstances. Since there is no eyewitness to prove the fact that someone else has put thumb impressions of Mangala and Ramu over the disputed sale-deeds, therefore, the fingerprint report was the important piece of evidence and such evidence had not been brought to the notice of the accused persons during trial then said piece of evidence cannot be used against the accused persons. The first appellate Court strangely held that since the fingerprint report was not exhibited in evidence, therefore, there was no cause for putting any question to the accused about the fingerprint report. The reasons given by the first appellate Court appears to be contrary to law. If the argument is accepted that even without tendering in evidence and without exhibiting the fingerprint report, that report can be used as evidence against the accused-petitioners then this is evidence only and not conclusive proof of fact stated in the report. If the prosecution intends to rely upon this report as circumstance against the accused persons then the Section 313, Cr.P.C. definitely requires that that circumstance should have been brought to the notice of the accused. The report of the Finger-print Expert is an important document and the entire allegation of having the forged thumb impressions of Mangala and Ramu over the sale-deeds is based upon this report only. In these circumstances, even if it is held that the Fingerprint Expert's report is a piece of evidence, as per Sub-section (1) of Section 293, Cr.P.C. even then this cannot be used against the accused persons as it was never brought to the notice of the accused persons nor the accused-persons were given opportunity to explain the circumstance under Section 313, Cr.P.C. Merely on this ground alone, the accused persons deserve acquittal.
13. Apart from above legal position, it appears from the evidence produced by the prosecution itself that PW-1 Balwant Singh who was Sub-Registrar at the relevant time, stated on oath before the trial Court that the sale-deed was got registered by Ramu, Mangala, Chautu, Sua and Chhotu. He further stated that signatures of executants and witnesses were obtained before Bhagwan Sahai, who was the concerned clerk in the office of the Sub-Registrar. The prosecution witness PW-3 Bhagwan Sahai also stated on oath that in the register (Ex.P.2) at S.No. 401, entries were made by him in his handwriting. He further stated that Ex.P2 bears the thumb impressions of Ramu, Mangala, Chautu, Sua, Chhotu, Mal Singh and Shanker. These persons were identified by Mohan Lal, Deed Writer. The Deed Writer Mohan Lal appeared as prosecution witness PW-4 and he stated on oath that he wrote the sale-deed Ex.P. 1 dated 13-7-1982 as per the instructions of Ramu, Mangala, Chautu, Sua and Chhotu. The executants were identified by Mal Singh and Shanker and he identified Mal Singh and Shanker in the tehsil office. The other witnesses PW-5 Hanuman Singh, PW-6 Magan Singh and PW-7 Ganesh turned hostile and they have not supported the prosecution case. There is no evidence available on record to prove that sale-deed Ex.P.1 bears the forged thumb impressions of Mangala and Ramu. The statement of PW-2 Kana Ram cannot help to the prosecution because neither he was present at the time of execution of the sale-deeds nor he could have any knowledge about the fact whether Ramu and Mangala put their thumb impressions over the sale-deeds or not.
14. In view of the above discussion, it is clear that the courts-below merely by influence of a document available on record though was not tendered in evidence nor proved nor any question was put to the accused about the fingerprint report, reached to the conclusion that Ex.P. 11 sale-deed dated 14-7-1982 bears the forged signature of Ramu and Mangala and by this, committed serious error of law. Therefore, the judgment of both the courts-below deserve to be set aside.
15. Hence, the revision petition is allowed. The judgment of the courts-below dated 14-8-1991 and 12-7-1994 passed by the court of Judicial Magistrate, Dataramgarh in Criminal Case No. 170/1984 and appellate judgment passed by the court of learned Addl. Sessions Judge, Sikar in Criminal Appeal No. 1/92/(27/91) are set aside. The accused are acquitted from the charges under Sections 468/120B and 419/120B. The accused are already on bail as ordered by this Court on 1-8-1994. The bail bonds of the accused persons cancelled and they need not to surrender.