Gauhati High Court
Ranjit Debnath And Anr vs The State Of Assam on 30 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 313, (2019) 8 GAU LR 77
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/5
GAHC010008882011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 401/2011
1:RANJIT DEBNATH and ANR.
2: SRI JADULAL DEBNATH
BOTH SONS OF LT. BRAJA MOHAN DEBNATH R/O CHANDMARI
DIBRUGARH TOWN
P.O.
P.S. and DIST. DIBRUGARH
ASSAM
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR.R HAZARIKA
Advocate for the Respondent :
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
JUDGMENT
Date : 30-04-2019 This Revision is preferred against the order dated 31.03.2011 passed by the learned Sessions Judge, Dibrugarh in Criminal Appeal No.19(3)/2010, whereby the learned court has affirmed the judgment of conviction passed by the learned CJM in GR Case No. 934/2000 convicting the accused/petitioners under Section 468/471 IPC and sentenced them to Page No.# 2/5 undergo RI for 1 and ½ years and fine of Rs.5,000/- each in default SI for another 3 months under.
2. I have heard Mr. GP Bhowmik, learned counsel for the revision petitioners. I have also heard Mr. B Goswami, learned counsel appearing on behalf of the respondents.
3. The case in nutshell is that one Rabin Khamikar, SI of Police(Border), Dibrugarh lodged an FIR on 12.07.2000 in Dibrugarh PS contending interalia that on being suspected about the nationality of the accused persons, the matter referred to the Foreigners Tribunal, Dibrugarh for adjudication. Both the accused persons appeared before the Foreigners Tribunal, Dibrugarh and filed some documents including a citizenship certificate issued in the name of Braja Mohan Debnath from the office of the Deputy Commissioner, Nagaon. On being suspected about the genuineness of the said certificate the learned Member of the Foreigners Tribunal called for a report from the office of the Deputy Commissioner, Nagaon regarding issuance of said certificate. After enquiry a report was submitted from the office of the Deputy Commissioner, Nagaon that no such certificate was issued from the office in the name of Braja Mohan Debnath.
4. That the learned Foreigners Tribunal Dibrugarh by passing the common Judgment dated 29.06.2000 in FT Case No.2/2000 (PE No.6/1999) and FT Case No.3/2000 (PW No.7/1999)) declaring the accused persons (opposite party there in) foreigners of 1966-71 stream and directed the opposite parties to register their names as foreigners. In the said judgment dated 29.06.2000 the learned Tribunal further observed that Opposite Parties have submitted fake copy of citizenship certificate before the Tribunal which is a serious matter and required to be proved by the competent authority.
5. That on receipt of the said Judgmetn of the learned Foreigners Tribunal, the Sub- Inspector of police, Dibrugarh PS lodged the FIR on the basis of which Dibrugarh PS case No.231/2000 u/s 468 IPC was registered against the accused persons. After completion of investigation police submitted the charge-sheet on 23.4.2011 against the accused persons u/s 468 IPC and trial commenced as GR Case No.934/2000..
6. Accused persons denied the charges in course of trial. Prosecution examined as many as 3 witnesses. And the statement of the accused persons u/s 313 Cr.P.C. was recorded and finally Page No.# 3/5 on 12.5.2004 passed the judgment convicting the accused persons. Against the said order of conviction the accused persons preferred an appeal before the learned Sessions Judge, Dibrugarh being Criminal Appeal No.20(2)/04. The learned Sessiosn Judge after hearing the parties remanded the matter back to the trial Court with a direction to examine the Addl. Deputy Commissioner, Nagaon and UD Asstt of Nagaon Court. As such the prosecution side examined said two witnesses as PW-4 and PW-5.
7. That after completion of trial the learned trial court passed the judgment on 02.09.2010 convicting the accused persons u/s468/471 IPC, sentencing each of them to undergo RI for 2 ½ years and fine of Rs.10,000/- in default to undergo SI for three months.
8. That against the said Judgment of the trial court the accused persons preferred an appeal before the learned Sessions Judge, Dibrugarh being Criminal Appeal No.19(3)/2010. The learned Sessions Judge after hearing the parties and perusal of records passed the impugned Judgment on 31.03.2011 modified the judgment dated 02.09.2010 passed by the trial court by reducing the sentence to 1 ½ years and fine to Rs.5,000/- respectively.
9. Challenging the aforesaid conviction by the Sessions Judge, the present revision has been preferred challenging the legality and validity of the aforesaid judgment. I have gone through the document so annexed in the impugned judgment and order. The learned revision petitioner has vehemently submitted that only on the basis of the evidence of Officer from the Deputy Commissioner, Nagaon, without any supporting documents, the office cannot concluded that such document was not issued on their part. It is contended that the father of the accused petitioners duly obtained the said certificate from the office concerned and accordingly the same has been filed by the petitioner before Foreigners Tribunal when their citizenship was questioned by the Tribunal. It has been seriously contended that although the two officers of the Deputy Commissioner, Nagaon has been examined to support that the said document is not issued from the said office but as a matter of fact while submitting the said report by the said office they have not indicated any sort of document register etc. on the basis of which they issued such report about none issuance of such certificate. In this context the evidence of PW-4 and 5 has been referred.
10. I have also heard the learned counsel for the State respondent, who has submitted that the document obviously is very old document of 1965 and the present petitioner being the Page No.# 4/5 legal heir of their father has produced the same before the Tribunal and the Officers from the Deputy Commissioner has testified that no such certificate was issued by them.
11. On careful examination of the evidence on record it reveals that particularly the evidence of PW-4, Additional Deputy Commissioner, Nagaon and PW-5, UDA of the Deputy Commissioner, Nagaon is relevant. In their evidence both of them has stated that they have submitted a report (Ext-6) that they have not issued any citizenship certificate in that serial number that has been mentioned in the said certificate but as has been contended by the learned counsel for the petitioner it is to be noted that while saying so the said witnesses has not produce any relevant register or document etc. to submit that there was no such serial number in their office. That being so, I found sufficient force in the submission of the learned counsel for the petitioner that such a report has been given from the office of the Deputy Commissioner in a vague manner without any supporting document, whereas the learned trial court as well as appellate court has mostly relied in their evidence. Of course, they have given a negative evidence about none issuance of such certificate but the same aspect has not been properly proved by any supporting document.
12. On perusal of exhibit-1, the citizenship certificate that was produced before the Tribunal it is to be noted that same was issued in the name of Braja Mohan Debnath, whose signature is reflected in the said certificate, which was procured by the present petitioner. Now this present two petitioners being the children of said Braja Mohan Debnath obviously produced the said certificate before the Tribunal claiming citizenship. The learned tribunal also by relying upon the said document declared them to be foreigner of the stream of 1966-71 and by virtue of such declaration they can register their name as Indian citizen after elapse of 10 years. It cannot be understood as to on what basis the learned tribunal can pass such an order if there was serious doubt about the genuineness of the document.
13. Be that as it may, if we consider the ingredient of the 471 IPC it will be found that to use such document as genuine must have reason to believe that the same is forged one under Section 471 read as follows:
"471. Using as genuine a forged [document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall Page No.# 5/5 be punished in the same manner as if he had forged such [document or electronic record."
14. Now in the instant case although these two petitioners produced and relied the said documents as genuine document as it was procured by their father but there was nothing to show that they have reason to believe the same document to be a forged one because it was procured by his father far back in the year 1965 which they produced in 2000. In absence of such specific evidence which is the prime ingredient of the Section 471 of the IPC using the fake document believing to be a forged, conviction to legally unsustainable. A court of law has to appreciate the entire matter in the legal perspective as well as facts also. It may be a matter of fact that father of the present petitioner obtained a citizenship certificate in his name but in the eye of law there is no substantial evidence that these two accused/petitioners were aware about such fact that the same has been procured by his father fraudulently or dishonestly.
15. It has also been discussed that there is no clear evidence about the fact that the said document is forged one.
16. Having regard to the entire matters on record the evidence that has been discussed is found that the learned trial court as well as appellate court has failed to appreciate the aforesaid material aspect in proper perspective of law and facts. Consequently the conviction and sentence that has been passed by the trial court and the appellate court is hereby quashed and set aside. Both the accused/persons are set at liberty forthwith.
17. Send down the LCR along with a copy of this order.
JUDGE Comparing Assistant