Himachal Pradesh High Court
______________________________________________________________________ vs Davinder Kumar And Others on 8 August, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 112 of 2012
Reserved on : 19.07.2016
.
Date of Decision: 08.08.2016
______________________________________________________________________
State of Himachal Pradesh .....Appellant.
Vs.
Davinder Kumar and others .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
For the appellant:
rt
Whether approved for reporting?1 Yes.
Mr. V.S. Chauhan, Addl. Advocate
General, with Mr. Vikram Thakur, Dy.
Advocate General.
For the respondents: Mr. Anupinder Rohal, Advocate, for
respondent No. 1.
Mr. H.S. Rangra, Advocate, for
respondent No. 2.
Ms. Leena Guleria, Advocate, vice Mr.
G.R. Palsra, Advocate, for respondent No.
3.
Ajay Mohan Goel, J. :
By way of present appeal, the State has challenged the judgment passed by the Court of learned Special Judge, Kullu in Sessions Trial No. 3 of 2007 dated 27.10.2011 vide which, learned trial Court has acquitted the accused for commission of offences punishable Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 2under Sections 419, 420, 467, 471, 120-B of the Indian Penal Code and also Section 13(2) of the Prevention of Corruption Act.
2. Case of the prosecution was that a complaint Ex. PW31/B .
was addressed to the Director (Vigilance), which was sent to the Superintendent of Police, NR Dharamshala vide letter Ex. PW31/A to the effect that Manorama Devi, wife of Shri Kamal Kishore, who was working as a teacher at Bajaura Senior Secondary School and Kamal Kishor, her of husband, who was working as Superintendent in Larji Hydel Project at Throat Division No. VII, Larji Project knowingly committed an offence of rt purchasing land from a minor girl, namely Asha Kumari, daughter of late Shri Hari Chand of Phati Shilidhar, Kothi Kot Kandhi, Tehsil and District Kullu vide registry No. 439 dated 02.03.1993. Besides this, there were other allegations also levelled against the said two persons and accordingly, it was stated therein that Kamal Kishor in connivance with his wife had earned lacs of rupees by misappropriating Govt. money and this required investigation. It was also mentioned therein that the said two persons had pocketed Government money in connivance with the private contractors and Government officials etc. On the basis of the said complaint, an inquiry was conducted and apart from other irregularities committed by Kamal Kishor, it also came to the notice of Inquiry Officer that one sale deed Ex. PW5/A was executed in favour of accused Davinder Kumar, who was a non-Himachali, in connivance with other accused persons by way of cheating and impersonation. As per the ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 3 prosecution, in the sale deed Ex. PW5/A, Davinder Kumar was shown as son of deceased Kamal Kishor and Sumit Kumar, who is son of Kamal Kishor was shown as son of Harinder Bhalla, who is father of Davinder .
Kumar Bhalla. These persons were identified before the Registrar by Namberdar Bhag Chand and agriculturist certificate Ex. PW4/C was misused fraudulently in favour of Davinder Kumar in connivance with other accused persons. Pursuant to the said inquiry, FIR Ex. PW32/A of was registered against accused Davinder Kumar, Kamal Kishor, Sumit Kumar, Bhag Chand, Surender Kumar and Manmohan Singh etc. and
3. rt the matter was got investigated.
After the completion of investigation, challan was filed against the accused and as a prima facie case was found against them, accordingly they were charged for commission of offences punishable under Sections 419, 420, 467, 468, 471, 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, to which they pleaded not guilty and claimed trial.
4. Learned trial Court on the appreciation of material placed on record by the prosecution, concluded that the prosecution had failed to bring home the guilt of the accused persons and accordingly it acquitted all the accused persons of the offences levelled against them by giving them benefit of doubt. Said judgment passed by learned trial Court is challenged by way of present appeal.
::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 45. Mr. V.S. Chauhan, learned Additional Advocate General has vehemently argued that the judgment of acquittal passed by learned Court below is perverse and the findings to this effect returned by learned .
trial Court are not sustainable either in law or on facts. According to Mr. Chauhan, the prosecution had proved its case against the accused beyond reasonable doubt and had nailed the guilt of the accused, however, learned trial Court disbelieved the case of the prosecution in a of totally slipshod manner and has wrongly acquitted the accused. Mr. Chauhan submitted that cheating and impersonation stood established rt on record, but despite this, learned trial Court disbelieved the cogent and reliable evidence adduced in this regard by the prosecution on conjectures and surmises. He further argued that the findings returned by learned trial Court in support of acquitting the accused were not borne out from the records of the case.
6. On the other hand, learned counsel for the respondents submitted that there was no merit in the present appeal and the learned trial Court had rightly acquitted the accused for the offences alleged against them because the accused were innocent and the prosecution was not able to prove the guilt of the accused. It was submitted that learned trial Court after perusal of the material placed on record by the prosecution rightly came to the conclusion that the prosecution had not been able to prove its case against the accused because the evidence placed on record by the prosecution, both ocular and documentary did ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 5 not connect the accused with the commission of offence. It was further submitted that the judgment of acquittal passed by learned trial Court thus does not warrant any interference.
.
7. We have heard the learned counsel for the parties and also gone through the judgment passed by learned trial Court as well as the records of the case.
8. In the present case, four accused were charged for the of commission of offences under Sections 419, 420,467,468,471, 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption rt Act. Out of four accused, Kamal Kishore died during the pendency of the trial.
9. In order to appreciate the rival contentions of the parties as well as whether the learned trial Court has rightly come to the conclusion that the prosecution was not able to prove its case against the accused, we shall deal with each accused independently vis-à-vis the allegations levelled against them.
Accused Davinder Kumar:
10. As per the prosecution, allegation against Davinder Kumar was that he is a non-Himachali, non-agriculturist resident of Hoshiarpur, Punjab. He in connivance with accused persons and by cheating and impersonation got sale deed Ex. PW5/A executed in his favour.
11. Before proceeding any further, it is pertinent to take note of the fact, which otherwise finds mention in the judgment passed by ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 6 learned trial Court that the defence of accused Davinder Kumar before learned trial Court was that prosecution had failed to prove the offences levelled against him and since Divisional Commissioner, Mandi had .
directed the State Government to grant ex post facto sanction in favour of accused Davinder Kumar, hence no offence had been committed by him.
It is pertinent to mention at this stage that in view of the fact that Davinder Kumar was a non-agriculturist in Himachal Pradesh, he could of not have purchased agricultural land in the State of Himachal Pradesh except with the prior permission of the Government of Himachal Pradesh rt in view of the provisions contemplated in Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act. The factum of accused Davinder Kumar being a non-agriculturist in the State of Himachal Pradesh and further being a resident of Hoshiarpur, Punjab is not in dispute. The sale deed executed by accused in favour of Davinder Kumar by way of cheating and impersonation is Ex. PW5/A.
12. A perusal of Ex. PW5/A, i.e. sale deed dated 06.08.2001 reveals that one Surinder Pal, S/o Maan Singh sold land measuring 0-9- 18 bighas, situated in Mohal Bhiri/508, Sub-Tehsil Aut, Khata Khatoni No. 206/292, Khasra No. 861/120 in favour of Davinder Kumar, S/o Kamal Kishore, R/o Phati Shilidhar, Kothi Kotkandi, Tehsil and District Kullu. The sale deed has been duly signed by Surinder and Davinder Kumar in the present of witnesses Sumit Kumar, S/o Harinder Kumar ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 7 and Manmohan Singh, S/o Balwant Singh and identifier Bhag Chand, Namberdar.
13. Sh. Ved Parkash entered the witness box as PW-4 and stated .
that on 22.02.2006, he was posted as Patwari, Patwar Circle Kharahal, District Kullu. He produced the original receipt book bearing No. 3 dated 07.08.2001 by virtue of which, Government fee for issuance of parcha Jamabandi as well as agriculturist certificate were issued in favour of one of Sumit, S/o Shri Kamal Kishor. The copy of agriculturist certificate is on record as Ex. PW4/C, which as per PW-4 Ved Parkash was issued to
14. rt Sumit, S/o Kamal Kishor.
PW-6 Hari Chand has deposed that he was working as Deed Writer in Sub Tehsil, Aut from 1992 and on 06.08.2001, he scribed a sale deed in which Surender Pal was Vender and Davinder, S/o Kamal Kishore was the Vendee. Vide sale deed, Surender Pal sold land measuring 0-9-18 bighas in favour of Davinder, S/o Kamal Kishor for a sale consideration of `74,500/- and the land was situated in Mohal Jhiti.
He further stated that after scribing the sale deed, he entered the same in his register maintained by him at Sr. No. 180. He also stated that the vendor, vendee and attesting witnesses signed the sale deed in his presence and when vendor and vendee came, he demanded agriculturist certificate in the name of Davinder Kumar. Upon this, father of vendee Kamal Kishore assured him that he will prepare the sale deed and he will bring the agriculturist certificate from the Patwari, but the concerned ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 8 Patwari had not issued the agriculturist certificate in favour of Davinder Kumar. He also deposed that thereafter they came back to him with agriculturist certificate issued in the name of Kamal Kishor and disclosed .
that Davinder had shown his inability to issue agriculturist certificate in favour of Davinder Kumar during the life time of his father and accordingly, in these circumstance, he mentioned the name of Davinder Kumar, S/o Kamal Kishor as vendee. He further deposed that the vendor of and vendee were identified by Manmohan Singh and Bhag Chand, Lamberdar, Halqa Nagwain.
15. rt PW-16 Gautam Singh Guleria stated that from the year 1999 till May, 2003, he remained posted as Naib Tehsildar-cum Sub Registrar, Aut, District Mandi and during his posting as a Sub Registrar, he had registered a sale deed Ex. PW5/A executed by Surender Pal, S/o Sh. Man Singh in favour of Davinder Kumar, S/o Kamal Kishor. He also stated that the vendee and vendor were identified by Namberdar Bhag Chand of village Nagwain. He also stated that other witnesses were also identified by Namberdar Bhag Chand. He further stated that vendor of the land was also known to him as he was working in Cooperative Bank and was posted at Nagwain. He also stated that the purchaser Davinder Kumar was also known to him and that he could identify him. According to PW-
16, Manmohan Singh who signed the sale deed was also known to him.
This witness further deposed that before registering the sale deed, he demanded agriculturist certificate from the purchaser. The purchaser ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 9 showed him agriculturist certificate in the name of Kamal Kishor. When the same deed was executed, Kamal Kishor was also present, who disclosed to him that Davinder Kumar was his son. Sale deed Ex. PW5/A .
was registered on 07.08.2001 and at that time, agriculturist certificate and copy of Jamabandi for the proof of title were also produced before him.
16. PW-17 Surender Pal stated that he was posted as Office of Assistant in Himachal Pradesh Cooperative Bank, Nagwain Branch in the year 2001 and he owned land measuring 0-9-18 bighas in village Jhiri.
rt He sold the said land to Davinder Kumar, S/o Shri Kamal Kishor for a sale consideration of `74,500/- and he was also called by Kamal Kishor at the time of sanction of mutation. He also stated that Davinder, S/o Kamal Kishor was also present at the time of execution of sale deed and its registration as well as at the time of sanction of mutation. PW-17 also deposed that the sale deed was witnessed by Bhag Chand, Namberdar and Manmohan Singh and Lamberdar was the identifier in the sale deed.
He also stated that for the purpose of registration, he was identified by Lamberdar Bhag Chand before the Sub Registrar. As the said witness has resiled from his earlier statement, he was permitted to be cross-examined by learned Public Prosecutor and in his cross-examinaton, he was confronted with the statement made under Section 161 of the Code of Criminal Proceudure, wherein it was stated by him that accused Davinder was also identified by Bhag Chand.
::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 1017. Manmohan Singh entered the witness box as PW-18 and stated that he was running a shop at Aut and had signed Ex. PW5/A as an attesting witness. As per him, he was called by Kamal Kishor and .
except Kamal Kishor, he did not knew any other person. This witness has stated that Kamal Kishor took him to Tehsil Office on the pretext that sale deed was to be executed in favour of his son and he had signed as attesting witness on the same.
of
18. Before proceeding further, it is relevant to refer at this stage to Ex. DW1/A, which is copy of order dated 02.09.2008 passed by the rt Court of Commissioner, Mandi Division in appeal under Section 118(3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. This appeal was filed by accused Davinder Kumar by mentioning his particulars as under:
"Sh. Davinder Kumar, S/o Sh. Harinder Kumar, R/o Village Jhiri, Sub-Tehsil Aut, District Mandi (HP)."
19. It is not in dispute that the property subject matter of the abovementioned appeal is the same which was subject matter of the sale deed Ex. PW5/A. Incidentally, as is apparent from the contents of the said appeal, the case of the accused in the said appeal was to the effect that he had purchased the land in issue from his own sources and after he gained knowledge of being trapped in the matter by Kamal Kishor, he has also applied for ex post facto sanction which was still awaited. The ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 11 appeal in fact has been disposed of by Commissioner, Mandi Division by directing the appellant therein, i.e. the present accused Davinder Kumar to apply afresh to the H.P. State Government through proper channel for .
ex post facto permission to purchase the disputed land as required under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The purpose as to why this order has been referred to at this stage is that the defence which has been taken by the accused is that he was of not party to the sale deed allegedly executed vide Ex. PW5/A and that he has falsely implicated in the case and further he was not even present at rt the time when the said sale deed was executed. It is apparent from the contents of Ex. DW1/A that the accused is not a stranger as far as the land subject matter of sale deed Ex. PW5/A is concerned and in fact according to him, the land has been purchased by him out of his own sources and vide order passed by Commissioner, Mandi Division, he has been permitted to apply to the Government of Himachal Pradesh for ex post facto sanction as is required under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, which also categorically proves the fact that the accused is a non-agriculturist and could not have purchased agricultural land in the State of Himachal Pradesh in the absence of a permission granted in his favour by the State Government.
20. Another very important and relevant aspect of the matter which has been ignored by learned trial Court is that PW-14 Kapil Dev who remained as Pradhan of Gram Panchayat, Jhiri from the year 2000 ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 12 to 2010 has very categorically stated that father of accused Davinder Bhala, namely Harinder Bhalla was known to him and was having his residential house at village Jhiri. He has further stated that accused .
Davinder Bhalla was also known to him and Surender Pal was also known to him. Said witness has thereafter stated that Surender Pal had purchased 10 biswas of land in village Jhiri and he had sold the said land. Thereafter, though he has stated that he did not know to whom the of land has been sold, but he voluntarily stated that accused Davinder had constructed house on the said land and this was a two storeyed house.
rt There is no cross-examinantion of this witness to the effect that Davinder had not constructed a house over the land subject matter of the sale deed Ex. PW5/A.
21. Thus, the prosecution had proved that Devinder was not only in possession of the land in issue but he had also constructed a two storeyed house over the same. Davinder Kumar could also not substantiate as to what was the motive of Kamal Kishor for falsely implicating him as alleged.
22. Learned trial Court while acquitting Davinder Kumar has held that PW-6 Hari Chand, PW-16 Gautam Singh and PW-31 Prem Singh in their cross-examinations have specifically denied that Davinder Kumar was known to them and further if Davinder was personally known to PW-16 Gautam Singh, then how did be believe the parentage of Davinder Kumar and Sumit is a circumstance, which remained ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 13 unexplained. Learned trial Court also held that the report of Expert Ex.
PW33/A was not admissible in evidence and therefore, it could not be said that accused Davinder was present at the time of execution of sale .
deed and he has signed the sale deed as a vendee. It also relied upon Ex.DW1/A to come to the conclusion that the prosecution had not been able to prove its case against accused Davinder Kumar.
23. In our considered view, the conclusion so arrived by learned of trial Court to the effect that the prosecution was not able to prove its case against accused Davinder Kumar is totally perverse. Statements of PW-6 rt Hari Chand, Deed Writer, PW-16 Gautam Singh Guleria, Naib Tehsildar-
cum-Sub Registrar, Aut, District Mandi and PW-17 Surender Pal proved beyond any reasonable doubt that accused Davinder Kumar was present when sale deed Ex. PW5/A was executed and registered and besides this, he played an active role in the preparation of the said sale deed. The conclusions drawn to the contrary by learned trial Court are not in consonance with the evidence on record as would be evident from the following:
(a) PW-6 Hari Chand, Deed Writer has categorically stated that he had scribed sale deed Ex. PW5/A on 06.08.2001 and to substantiate this, he had produced the abstract of register as Ex. PW6/B, in which the factum of scribing of said sale deed was duly registered. He unequivocally stated that the vendor and vendee and attesting witnesses signed the sale deed in his presence. A perusal of his cross-examination will demonstrate ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 14 that there is no suggestion put on behalf of accused Davinder that he was not present at the time when sale deed Ex. PW5/A was scribed. Not only this, there is no cross-examination of this witness to the effect that the .
vendor and vendee and attesting witnesses did not sign the sale deed in his presence.
(b) Similarly, a perusal of the statement of PW-16 Gautam Singh Guleria demonstrates that he has also categorically stated that sale deed of Ex. PW5/A was registered by him and the vendor and vendee were identified before him by Namberdar Bhag Chand of Nagwain. This witness rt also stated that purchaser Davinder Kumar was known to him and that he could identify him. He further stated that Kamal Kishor was also present when the sale deed was executed and when agriculturist certificate was demanded from Davinder Kumar, Kamal Kishor presented an agriculturist certificate in his name and disclosed that Davinder Kumar was his son. Incidentally, a perusal of his cross-examination on behalf of accused Davinder Kumar demonstrates that there is no suggestion to the effect that Devinder was not present at the time of registration of sale deed. On the contrary, the suggestions which have been given to PW-16 on behalf of accused Davinder Kumar are that the same deed can be executed in favour of landless person carrying on allied pursuits without agriculturist certificate and that he did not knew the fact whether higher revenue officer may accord ex port facto sanction.
Though he has admitted the suggestion that accused Davinder was not ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 15 personally known to him on 07.08.2001, but it is not as if in his examination-in-chief, he had stated that Davinder Kumar was personally known to him. All that he had stated was that Davinder Kumar was .
known to him. Learned trial Court while disbelieving the testimony of said witness had drown inferences by reading something in the cross-
examination of the said witness, which otherwise is not on record.
Learned trial Court has held that PW-16 specifically stated in his of examinantion-in-chief that all persons were personally known to him and thereafter learned trial Court went on to hold that if that was so, how did rt Davinder Kumar will believe the parentage of Davinder Kumar and Sumit is a circumstance which remained unexplained. In our considered view, learned trial Court has completely misread the statement of PW-16. PW-
16 has nowhere mentioned in his examination-in-chief that all the persons were personally known to him. This inference drawn by learned trial Court about the testimony of PW-16 is totally perverse and contrary to records. Similarly, because PW16 mentioned in his examination-in-chief that he knew Davinder Kumar, this did not mean that he was also supposed to know about the parentage of Davinder Kumar. Further, as has already been observed by us above, no suggestion was put to the said witness in his cross-examination on behalf of accused Davinder Kumar that Davinder Kumar was not present before him when PW5/A was registered.
::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 16(c) Similarly, PW-17 Surender Pal has very clearly and categorically stated that he had sold the land subject matter of sale deed Ex. PW5/A to accused Davinder Kumar through Kamal Kishore. He has .
stated that Davinder, S/o Kamal Kishor was also present at the time of execution of sale deed and its registration as well as at the time of sanction of mutation. He deposed that sale deed was duly witnessed by Bhag Chand, Namberdar and Manmohan Singh and that Lamberdar was of identifier in the sale deed. Though the said witness resiled from his earlier statement given to the police under Section 161 of the Code of rt Criminal Procedure, yet the fact still remains that in his examination-in-
chief, he admitted the factum of selling the land vide sale deed Ex.
PW5/A to Davinder and the factum of Davinder Kumar being present at the time of execution of sale deed and registration of the same. A perusal of the judgment passed by learned trial Court demonstrates that the testimony of PW-17 has not been appreciated by learned trial Court in its true perspective. The same has been dealt with by learned trial Court in a slip shod manner and the testimony which supported the version of the prosecution has been whimsically brushed aside.
24. In our considered view, testimonies of abovementioned witnesses, i.e. PW-6Hari Chand, PW-16 Gautam Singh and PW-17 Surender Pal duly proved the presence of all accused both at the time of execution of the sale deed as well as at the time of registration of the same. During the course of cross-examination of these witnesses, no ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 17 suggestion has been given on behalf of accused Davinder Kumar that neither the sale deed was prepared in his presence nor was he signatory to it or that he was not present before the authority when the same was .
registered. In this view of the matter, the conclusion which have been drawn by learned trial Court to the effect that it was not proved beyond reasonable doubt that accused Davinder Kumar was present at the time of attestation of sale deed Ex. PW5/A is totally perverse and the same is of accordingly set aside and the accused is held guilty of impersonating and cheating under Sections 419 and 420 read with Section 120-B of the rt Indian Penal Code. However, in our considered view, no offence under Sections 467 and 471 of the Indian Penal Code is made out against the accused as the ingredients of forgery have not been proved by the prosecution in the present case.
Sumit Kumar:
25. Now, we come to accused Sumit Kumar. A perusal of Ex.
PW5/A, i.e. sale deed will demonstrate that the said sale deed has been witnessed by Sumit Kumar. Said Sumit Kumar has given his particulars as " Shri Sumit Kumar, S/o Shri Harinder Kumar, R/o Shadawai Colony, Tehsil and District Kullu."
26. It is pertinent to mention at this stage that incidentally the name of father of accused Davinder Kumar is Harinder Kumar and name of father of Sumit Kumar is Kamal Kishor. The case of the prosecution against Sumit Kumar is that Sumit Kumar, who actually was the son of ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 18 Kamal Kishore (who helped Davinder Kumar in the execution of sale deed by projecting Davinder Kumar to be his son) facilitated the execution of said sale deed by appearing therein as one of the witnesses. Therefore, .
said Sumit Kumar was a part of the conspiracy that was hatched by accused. A perusal of the judgment passed by learned trial Court will demonstrate that Sumit Kumar inter alia has been acquitted on the ground that PW-6 Hari Chand, PW-14 Kapil Dev, PW-16 Gautam Singh of and PW-17 Surender Pal and PW-18 Manmohan Singh have not stated that accused Sumit Kumar was known to them and he has put his
27. rt signatures on Ex. PW5/A in their presence.
In our considered view, the findings so returned by learned trial Court are also unsustainable because while returning these findings, learned trial Court has totally misread the evidence on record. It has completely lost site of the role which has been played by accused Sumit Kumar in connivance and conspiracy with other accused. PW-6 Hari Chand, Deed Writer has categorically stated that sale deed Ex. PW5/A was scribed him and the same was signed in his presence by vendor, vendee and attesting witnesses. There is no cross-examination of the said witness on behalf of accused Sumit to the effect that neither he was present at the time when the sale deed was scribed nor did he sign the same.
28. As far as PW-14 Kapil Dev is concerned, this witness is neither a witness to the execution of the sale deed nor he is witness to the ::: Downloaded on - 15/04/2017 20:59:23 :::HCHP 19 registration of the same. Therefore, the conclusions drawn by learned trial Court from the testimony of the said witness that presence of Sumit Kumar was not proved either at the time of preparation of the sale deed .
or at the time of its registration is totally misplaced. The only suggestion which has been put on behalf of accused Sumit to PW-16 is that accused Sumit was not personally known to him.
29. Copy of the agriculturist certificate which was issued in of favour of Kamal Kishore by the competent revenue authority is Ex.
PW4/C. PW-4 Ved Parkash, who at the relevant time was posted as rt Patwari at Patwar Circle, Kharahal, District Kullu produced the relevant records to demonstrate that amongst other documents, agricultural certificate Ex. PW4/C was issued to accused Sumit, S/o Kamal Kishor.
Case of the prosecution also in fact is this that the conspiracy which in fact was hatched by accused was to this effect that in order to enable accused Davinder to execute a sale deed of agricultural land in Himachal Pradesh, which he otherwise could not have purchased, help of an agriculturist certificate issued in favour of accused Kamal Kishor, father of accused Sumit was taken and in fact Kamal Kishor represented that Davinder Kumar was his son and on the basis of this conspiracy which was hatched by accused, Ex. PW5/A was executed and registered. It stands established on record by the prosecution that Sumit Kumar had obtained the necessary agriculturist certificate issued in favour of Kamal Kishor from revenue authorities. It also stands proved by the prosecution ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 20 that Sumit Kumar was an attesting witness to the execution of sale deed Ex. PW5/A and his presence has been duly substantiated by the Deed Writer. Therefore, in our considered view, keeping in view the said facts, .
the conclusions arrived at by learned trial Court to the effect that the prosecution had not been able to prove the involvement of accused Sumit Kumar in the present case is not sustainable. On the contrary, the prosecution has proved the involvement of Sumit Kumar, which was in of connivance with other accused beyond any reasonable doubt.
Involvement of Sumit Kumar is also apparent from the following. PW-6 rt Hari Chand has deposed that Surender Pal and accused Davinder had approached him on 06.08.2001 to scribe the sale deed. He has further stated that when the vendor and vendee came to him, he demanded agriculturist certificate in the name of Davinder Kumar. On this, father of vendee, i.e. Kamal Kishore assured him that PW-6 should prepare the sale deed and he will bring the agriculturist certificate from the Patwari, as the concerned Patwari has not issued agriculturist certificate in the name of Davinder Kumar. He has thereafter deposed that subsequently the vendor and vendee came to him with agriculturist certificated issued in the name of Kamal Kishor and they also disclosed to him that Patwari had shown his inability to issue agriculturist certificate in favour of Davinder Kumar during the life time of his father, i.e. Kamal Kishor and accordingly upon this, he mentioned the name of Davinder Kumar, son of Kamal Kishor as vendee. In this sequence, if we have a look at the ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 21 statements of PW-4 and PW-6, one thing which is apparent and evident is this that the agriculturist certificate in favour of Kamal Kishor which was procured by accused Sumit was obtained on 08.08.2001, which is evident .
from the testimony of PW-5 Dole Ram, Senior Assistant, who has categorically stated in his cross-examination that agriculturist certificate Ex. PW4/C is countersigned by Tehsildar on 08.08.2001. From this, it is clear that on 06.08.2001 after the Deed Writer called upon vendor and of vendee, namely Surender Pal and Davinder Kumar to produce agriculturist certificate in favour of the purchaser, an agriculturist rt certificate was procured by Sumit Kumar in the name of his father Kamal Kishor on 08.08.2001 alongwith other relevant records and this agriculturist certificate was used in the execution of sale deed by impersonating the purchaser accused Davinder Kumar as son of Kamal Kishor. Therefore, these facts categorically demonstrates that accused Sumit was a part of the conspiracy and this very important aspect of the matter has also been ignored by learned trial Court. Thus, findings returned by learned trial Court to the effect that prosecution was not able to prove its case against accused Sumit Kumar are also not sustainable and accordingly he is also held guilty for commission of offences under Sections 419, 420 read with Section 120-B of the Indian Penal Code.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 22Accused Bhag Chand:
30. As far as accused Bhag Chand, Namberdar is concerned, his defence was that he in fact had identified only Surender Kumar, i.e. .
vendor and in these circumstance, no case was made out against him.
31. A perusal of the judgment passed by learned trial Court will demonstrate that learned trial Court has held that no documentary or oral evidence is there on record to prove that Bhag Chand had identified of any of the accused persons. On these basis, it was held that he could not be held guilty on the basis of presumption that since he had signed the rt sale deed, so he may have identified all the accused. Learned trial Court further held that PW-17 Surender Pal corroborated the defence of the said accused that he had only identified accused Bhag Chand.
32. A perusal of the cross-examination of PW-6 demonstrates that he had admitted therein that accused Bhag Chand only identified Surender Pal, S/o Man Singh
33. In our considered view, as both PW-6 Hari Chand and PW-17 Surender Pal have deposed that Bhag Chand has identified Surender Pal only, therefore, the prosecution has not proved beyond reasonable doubt that Bhag Chand had identified accused Davinder Kumar as son of Kamal Kishor or that he was a part of the conspiracy which otherwise was hatched by remaining accused. Therefore, the judgment of acquittal returned by learned trial Court is maintained.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 2334. As far as the adjudication by learned trial Court on the factum of learned trial Court having jurisdiction to adjudicate upon the case is concerned, in our considered view, the jurisdiction was there with .
learned trial Court at Kullu to adjudicate upon the matter because part of the cause of action has arisen in District Kullu. From the discussion held above, it is clear that as the sequence of events unfold the vendor and vendee alongwith accused Kamal Kishor and Sumit had initially of approached the Deed Writer on 06.08.2001 for scribing the sale deed and on his asking, the agriculturist certificate was obtained from the rt concerned revenue authorities in District Kullu on 08.08.2001 and subsequently on the basis of this agriculturist certificate, the sale deed was executed by impersonating accused Davinder Kumar as son of Kamal Kishor. Therefore, the observations of learned trial Court that Court at Kullu was not having any jurisdiction to adjudicate upon the matter is also incorrect because the above facts categorically demonstrate that part of cause of action had also occurred in District Kullu from where the agriculturist certificate was obtained in the name of Kamal Kishor with a dishonest intent by misusing it subsequently.
35. The findings returned by learned trial Court to the effect that it is not the case of the prosecution that accused persons had deceived any person and there is no wrongful loss to any party with the registration of sale deed Ex. PW5/A and hence Section 420 of the Indian Penal Code is not attracted on the basis of evidence led by the ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 24 prosecution is also a completely perverse finding. Further finding recorded by learned trial Court to the effect that the prosecution failed to prove that the accused had cheated by impersonation is also perverse .
finding. While returning these findings, learned trial Court has lost site of the fact that by impersonating and cheating, the accused had induced the State machinery to register sale deed Ex. PW5/A in favour of accused Davinder Kumar which otherwise was not permissible in law.
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36. As far as the opinion of the Handwriting Expert is concerned, though the same has been disbelieved by learned trial Court on the rt ground that it was not admissible to have obtained the specimen signatures of the accused before Executive Magistrate, but the fact of the matter still remains that the report of Handwriting Expert is only corroborative evidence and not primary evidence. In the present case, prosecution otherwise has proved the case against the accused to the effect that a conspiracy was hatched by them and as a result of which conspiracy, sale deed Ex. PW5/A was executed by impersonating vendee Davinder Kumar as son of Kamal Kishor to defeat the law and taking advantage of the fact that Kamal Kishor was an agriculturist.
37. In our considered view, the judgment passed by learned trial Court to the effect that the prosecution was not able to prove its case against the accused is not sustainable. Learned trial Court has committed grave illegality by misreading and overlooking the material evidence placed on record by the prosecution, which proved beyond any ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 25 reasonable doubt that the accused were guilty of offences of impersonation and cheating. Learned trial Court failed to appreciate that the prosecution had been able to prove beyond reasonable doubt that .
impersonation and cheating were committed by the accused in conspiracy with each other resulting in the execution and registration of sale deed Ex. PW5/A in favour of accused Davinder which registration would otherwise not have had been entered into by the Government of agencies as accused Davinder Kumar was not legally entitled to purchase agricultural land in the State of Himachal Pradesh in contravention of the rt provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. In the present case, the accused were successful in cheating the State machinery while getting the sale deed registered by impersonating accused Davinder Kumar as son of Kamal Kishor.
38. Accordingly, present appeal is partly allowed and the judgment of acquittal passed in favour of the accused Davinder Kumar and Sumit Kumar is set aside. We hold the said accused guilty and convict for commission of offences under Sections 419, 420 read with Section 120-B of the Indian Penal Code. It has to be appreciated that making of any false document, in view of the definition of "forgery" is the sine qua non therefore. What would amount to making of a false document is specified in Section 464 of the Indian Penal Code. What is, therefore, necessary is to execute a document with the intention of causing it to be believed that such document inter alia was made by the ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP 26 authority of a person by whom or by whose authority he knows that it was not made. That not being the case herein, accordingly in our considered view, Sections 467 and 471 of the Indian Penal Code were not .
attracted {See Devendra and others Vs. State of Uttar Pradesh and another (2009) 7 Supreme Court Cases 495}.
As far as the judgment of acquittal by learned trial Court qua accused Bhag Chand is concerned, the same is maintained.
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39. Bail bonds furnished by the accused-convict stand cancelled.
For the purpose of hearing them on the quantum of sentence, the appeal rt be listed on 30.08.2016. They be produced in the Court on the said date.
Copy of the judgment be supplied to accused free of cost. Appeal stands disposed of.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge August 08, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP