Himachal Pradesh High Court
Amar Singh vs State Of Himachal Pradesh on 27 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 145 of 2008.
Date of Decision: 27.5.2016.
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______________________________ _____________________________
[
Amar Singh .........Petitioner.
Versus
State of Himachal Pradesh ............Respondent.
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner:rt Mr. Rakesh Dhaulta, Advocate.
For the respondent: Mr. D.S. Nainta, Additional Advocate
General.
________________________________________________________
Sandeep Sharma, J.
The present criminal revision petition filed under Section 397 Cr.PC read with Section 401 Cr.PC, is directed against the judgment dated 11.8.2008, passed by the learned Additional Sessions Judge, Sirmaur District at Nahan, HP, in Criminal Appeal No. 3-N/4 of 2007 titled "Amar Singh v. State of Himachal Pradesh", affirming the judgment of conviction and sentence dated 28.6.2007, passed by the learned Chief Judicial Magistrate, Ist Class, Rajgarh, District Sirmour, HP, in Criminal Case No. 1/2 of 2003 titled "State of Himachal Pradesh v. Amar Singh," whereby Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -2-petitioner (herein after referred to as the "accused" for the sake of brevity) has been convicted and sentenced to undergo as .
follows:-
"To undergo rigorous imprisonment for two years for having committed offence under Section 420 IPC and to pay fine of Rs. 1,000/-. Under Section 468 IPC, he is again sentenced to undergo rigorous imprisonment for of two years and to pay fine of Rs. 1000/-. Under Section 471, he is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1000/- All sentences rt shall run concurrently."
2. Briefly stated facts necessary for adjudication of the present case are that on 29.1.2002, on the basis of complaint received from Medical Superintendent, Zonal Hospital, Nahan, FIR Ext.PW-11/B was registered with the Police Station Nahan, HP, wherein, it was complained that accused has committed forgery of disability certificate. Aforesaid factum came to the notice of authorities when the accused appeared before the medical board comprising Dr. Saneha Gupta (PW-3), M.S. Regional Hospital Nahan, Dr. M.L. Gupta and Dr. Oberoy for renewal of certificate on 29.1.2002, where he produced the disability certificate Ext.PW-
1/B, wherein disability was mentioned to the extent of 83%. Since ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -3- on the certificate produced by the accused for renewal had overwriting, medical board got suspicious and called for the .
records maintained by the Hospital. After inspection of the record, it transpired that disability was mentioned 03% on the certificate, which was originally issued to the accused on 28.5.1998. After perusing the record of the hospital, Ex.PW1/B disability certificate, of was found forged and, as such, matter was reported to the police station, Rajgarh. Police after receiving the aforesaid complaint, rt lodged the FIR i.e. Ext.11/B. During investigation, police procured the duplicate certificate in which the disability was mentioned to be 03% vide memo Ext.PW1/C from Tarsem Kumar (PW1) in the presence of Arun Sharma (PW2)along with original disability certificate and one identity card issued in the name of the accused in which disability was mentioned 83%, which are Ext.PW5/A, Ext.PW1/A and Ext.PW1/B. The abstract of register showing issuance of identity card was also taken into possession vide recovery memo Ext.PW4/A. During investigation, it also revealed that accused also procured concessional pass on the basis of forged disability certificate from the HRTC department.
Police after taking documents in custody sent the same to FSL, ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -4- Junga, and report Ext.PW11/A was obtained wherein documents Ext. P1 to P21 were sought to be examined. Investigation of the .
present case was conducted by PW-12 ASI Mohan Singh. On 8.3.2002, abstract of register regarding issuance of identify card was also obtained by the police from Shri Kulbhushan (PW-5) the then Senior Assistant, HRTC, Nahan in the presence of Ranvir-PW4.
of Specimen signatures of accused were also obtained on 18.3.2002.
Application of one Suresh Kumar was taken into possession vide rt memo Ext.PW6/A from Surender Kumar (PW6) the then BMO, Sarahan, in the presence of Sanjeev Arora (PW7). Accordingly, specimen signatures of the accused and admitted writings of Suresh Kumar were sent to FSL Junga for the purpose of comparison along with disputed writings on the disability certificate and opinion of Dr. Minakshi Mahajan (PW14) Assistant Director, FSL Junga, was obtained vide Ext.PW11A, wherein she concluded that blue enclosed signatures stamped and marked as S-13 to S-16 and red enclosed signatures stamped and marked as Q-1 to Q-6 are written by one and the same person but it is not possible to express any opinion on altered questioned item No. Q-8 to Q-13. The statements of the witnesses were recorded by ASI ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -5- Mohan Singh (PW12), Inspector Laxman Dass (PW11) and SI Dhan Singh (PW8) as per their version under Section 161 Cr.PC.
.
3. After conclusion of the investigation, police filed challan under Section 173 Cr.PC before the competent court of law against the accused for having committed offences punishable under Sections 420, 468 and 471 of the Indian Penal of Code. The court of learned Judicial Magistrate, Ist Class Rajgarh, after satisfying itself that the prima facie case exists against the rt accused, framed charges against him. However, accused pleaded not guilty and claimed trial. Prosecution with a view to prove its case examined as many as 14 witnesses and statement of the accused was also recorded under Section 313 Cr.PC, wherein he denied the case of the prosecution in toto and claimed that he has been falsely implicated in the case. However, he did not lead any evidence in his defence.
4. Learned trial Court on the basis of evidence available on record found accused guilty of offences having committed under Sections 420, 468 and 471 of the Indian Penal Code and sentenced him as per the description already given above.
::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -6-5. Accused, feeling aggrieved and dissatisfied with the judgment of conviction of learned trial Court filed an appeal .
under Section 374 Cr.PC in the Court of learned Additional District Judge, Sirmour at Nahan, HP, which was partly allowed and sentence recorded against the accused for offence having been committed under Section 468 Cr.PC was set-aside and the of remaining sentence imposed by the learned trial Court was upheld. Hence this revision petition before this Court.
6. rt At this stage, it may be noticed that State did not file any appeal against the judgment of learned Additional Sessions Judge, whereby punishment and conviction recorded by the learned trial court under Section 468 of the Indian Penal Code was set-aside. One thing emerges from the record is that original record pertaining to the case got destroyed due to fire in the court, however, same was reconstructed on the direction of this Court and photocopies of the documents placed by the parties during the trial were relied upon in evidence.
7. Mr. Rakesh Dhaulta, Advocate, appearing for the accused vehemently argued that judgments passed by both the courts below holding him guilty of offences under Sections 420 and ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -7- 471 are not sustainable as the same are not based on the proper appreciation of the material available on record. He further .
contended that bare perusal of the findings recorded by both the courts below suggests that evidence available on record has been not appreciated in its right perspective; rather, same is based upon the conjectures and surmises. He further contended of that there is no cogent and convincing evidence adduced on record by the prosecution, which could result in passing of rt conviction order, as has been done in the case of the accused. It is also contended on behalf of the accused that once the appellate Court came to the conclusion that prosecution has not been able to prove that documents has been forged by the accused, it is not understood that how on the basis of some set of evidence, court below came to the conclusion that accused deliberately used that document for obtaining concessions from the other departments of the State. Mr. Dhaulta, strenuously argued that once the court below had concluded that accused is an illiterate person, who could not even write or read English and Hindi, there is no question of his knowing fully well that what would be the consequence of using this forged documents, which as per ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -8- him, was a valid and genuine one. Mr. Dhaulta while making his submissions before this Court also invited attention of this Court to .
the statements of various prosecution witnesses to demonstrate that there are material contradictions as well as infirmities, wherein PW-12 (Mohan Singh) admitted in his cross-examination that accused is an illiterate person and neither he knows Hindi nor of English and his specimen signatures were also not obtained in English since he was not knowing English, whereas perusal of the rt disability certificate Ext.PW-1/B suggests that it is written in English.
He also invited attention of this Court to the statement of PW-14 (Dr. Minakshi Mahajan), Forensic Expert, wherein she stated that the blue enclosed signatures stamped and marked as S-13 to S-16 and red enclosed signatures stamped and marked as Q-1 to Q-6 have all been written by one and the same person but it has not been possible to express any opinion on altered questioned item No. Q-8 to Q-13 in the aforesaid document. Mr. Dhaulta prayed that judgments passed by the courts below deserve to be quashed and set-aside.
8. On the other hand, Mr. D.S. Nainta, learned Additional Advocate General, submitted that no interference, whatsoever, of ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP -9- this Court is warranted in the present case, where the prosecution has proved its case beyond reasonable doubt. He forcefully .
contended that material available on record clearly suggests that accused forged the disability certificate and on the strength of the same, he procured concessional passes from HRTC and District Welfare departments. Mr. Nainta, strenuously argued that once it of stands proved on record that disability certificate was forged by the accused; plea with regard to his illiteracy as well as not rt knowing English could not be a ground for his acquittal. He also submitted that jurisdiction of this Court is very limited while exercising power under Section 397 Cr.PC, especially, in view of the fact that when it clearly emerges from the record that both the courts below have meticulously dealt with each and every aspect of the matter and prayed that judgments passed by both the courts below deserve to be upheld and accused deserves no leniency in the matter.
9. I have heard learned counsel for the parties as well carefully gone through the record.
10. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically .
examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
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11. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the rt Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is .
very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or rt miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
12. Before adverting to the evidence led on record by the prosecution, it would be apt to reproduce the provisions of Section 420 and 471 Indian Penal Code so that evidence adduced on record is analyzed /examined vis-à-vis the ingredients of aforesaid sections:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
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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 be punished in of the same manner as if he had forged such [document or electronic record]."
13. It emerges from the record that accused was charge rt sheeted under Section 420, 468 and 471 of the Indian Penal Code by the learned trial Court for having committed offences punishable under Sections 420, 468 and 470 of the Indian Penal Code. However, in appeal preferred by the accused before learned appellate Court, the appellate court acquitted him of the offence punishable under Section 468 of the Indian Penal Code by specifically recording therein that there is no evidence worth the name on record that accused has committed forgery in the certificate. Learned appellate Court while recording aforesaid findings specifically referred to the statement made by PW-12 (ASI Mohan Singh), who admittedly, in his cross-examination stated that accused is an illiterate man having no knowledge of Hindi and ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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English. It also came in his statement that specimen of writing of the accused in English was also not obtained as he was not having .
knowledge of English but perusal of Ext.PW1/B (the forged certificate) clearly depicts that same is in English, rather, careful perusal of the same also suggests that ahead of word "three" the word "eighty three" has been inserted and even the figure which of was "0" has been altered to 8 to make it "83". Learned appellate Court also drew strength from the statement of PW-14 Minakshi rt Mahajan, Assistant Director, who opined vide Ext.11/A that it is not possible to express any opinion qua Q.8 to Q.13. It also emerges from her cross-examination that opinion regarding figure and word in the certificate cannot be given due to overwriting, poor quality and the quantity of the specimen writing sent for comparison on the basis of aforesaid evidence. Learned appellate Court came to the conclusion that prosecution has not been able to prove that document in question was actually forged by the accused.
Accordingly, sentence imposed under Section 468 of the Indian Penal Code was set-aside.
14. Now this Court solely with a view to ascertain that the judgments/findings recorded by the courts below holding ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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accused guilty for offences committed under Section 420 and 471 Indian Penal Code are based on the correct appreciation of .
evidence available on record undertook an exercise to critically examine the witnesses put forth by the prosecution in this regard.
15. As per prosecution story Dr. Sneh Gupta PW3, Medical Superintendent, discovered that accused has forged disability of certificate Ext.1/B when accused appeared before the Medical Board for renewal of disability certificate. Since there were certain rt overwritings and insertions in the disability certificate, Medical Board got suspicious and called for the records from the hospital and found that Ext.1/B has been actually tampered by altering '03%' to '83%'. In the disability certificate, percentage was mentioned in words as well as in figures and it was found that from '0" it was made '8" and in figures word "Eighty" was inserted before word "Three". Cross-examination of PW3 clearly suggests that she stuck to her stand taken by her in examination-in-chief and defence was not able to impeach her statement in any manner. Though, it came in her cross-examination that documents produced by the accused were also having identity card issued by welfare department but in cross-examination, no ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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suggestion worth the name was put to her from where it can be inferred that she deposed against the accused to falsely implicate .
him in the case. Though, it also emerges from her statement that accused was also having identity card issued by the welfare department, wherein disability was shown to be 83% but the collective reading of the evidence available on record suggests of that accused had actually procured the identity card on the strength of that forged document where allegedly, he altered this rt from 03% to 83%.
16. PW-1 Tarsem, Junior Assistant in Regional Hospital, Nahan at that relevant time, specifically stated that he had given a copy of disability certificate to police on 8.3.2002 issued in the name of the accused, wherein disability certificate was mentioned to the extent of 03% not only in figures but also in words along with another disability certificate in which it was altered to 83% and one identity card signed by the District Magistrate was also handed over to the police vide memo Ext.PW1/C, where it was also mentioned 83%, which was duly signed by him as well as PW2 Arun Kumar. PW2, fully endorsed the view of PW1 in his cross-
examination, rather, perusal of cross-examination of PWs 1 and 2 ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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nowhere suggests that there is any kind of discrepancy or contradiction in the statements given by both the persons. Rather, .
in their cross-examination, no suggestion worth the name was put to them which could shatter their testimony or suggest that there was any prior animosity/enmity or motive, if any, to depose against the accused.
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17. PW4 Ranvir Singh, Senior Assistant in HRTC Nahan, testified that in his presence (PW4) and Joginder Singh, Kulbhushan rt (PW5) had produced the copy of identity card issued by the HRTC regarding concessional pass for the handicap along with copy of register mark 'x' to the police vide memo Ext.PW4/A, which was signed by him along with Joginder Singh and Kulbhushan.
18. PW5 Kulbhushan, Senior Assistant HRTC Nahan stated on 21.10.1999, accused came to office of HRTC and produced identity card issued by the welfare department, wherein disability was mentioned as 83%. Accordingly, on the basis of same, free travelling pass, valid from 21.10.1999 to 20.10.2003, was issued in his favour, which was signed by Regional Manger. Ext.PW5/A, which was taken into possession by the police vide memo Ext.PW4/A. Defence has not been able to elicit anything contrary from these ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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PWs in cross-examination. Rather statement given by PW-5 fully corroborates the statement given by accused under Section 313 .
Cr.PC, wherein he admitted the fact of obtaining free traveling pass from the State Transport Corporation. Though, it has come in the Statement recorded under Section 313 that he did not know that it is a forged document.
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19. PWs-6 & 7 namely uSrender Kumar and Sanjiv Arora, are the formal witnesses, who only proved the documents on rt record. PW-8 S.I. Dhan Singh, who was Investigating Officer for some time, stated that Clerk, Surender Singh of the office of District Welfare Office, Nahan had prepared abstract Ext.PW8/A and Ext.PW8/B, which were handed over to him vide memo Ext.PW-8/C in the presence of one Achhpal and Surender Singh. Even in his cross-examination he admitted that he had prepared the memo in the office of District Welfare Office in the presence of witnesses.
20. PW9 Taresem Singh stated that on the asking of the accused, he had given two forms to him in his office. As per his statement, accused affixed his photographs and filled it and gave it to the department. He further stated that accused along with blank identity card and form having appended photographs on it, ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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was sent by him to Medical Board, where the disability certificate of "03%" was issued in favour of the accused and one copy of the .
same was kept for record for their office. He also stated that in Medical Board, Dr. SS Rathore, Dr. Gulshan Narang, and Dr. Gurdarshan Gupta were the members and the accused was not issued disability certificate by the Medical Board. In his cross-
of examination, he also stated that accused had come to the office on 28.5.1998.
21. rt PW-10 Surender Singh, Clerk in the office of District Welfare Office, who was responsible for issuing identity cards to disabled persons stated that he maintains record of identity cards.
He also produced register of issuing of disability certificates/ identity cards in the Court. According to him, at Serial No. 121 of 98 at page No. 59, one identity card was issued to Amar Singh, S/o Almu Ram i.e. accused. It also came in his statement that abstract of Ext.PW8/A and PW8/B are correct as per the original, which was handed over to police vide memo Ext.PW1/C. He also identified the accused present in the court and stated that he had come to the office for making identity card which was made on the basis of disability certificate Ext.PW10/A. ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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22. PW11 Inspector Laxman Dass, in his cross-examination, admitted that no complaint was either received from the transport .
authority with regard to misuse of the pass by the accused.
23. PW12 S.I. Mohan Singh, who had also partly investigated the matter stated that no Transport Officer ever reported the matter to the police qua the use of false certificate of by the accused for procuring concessional passes from departments. It also came in his cross-examination that accused rt was uneducated and he did not know reading and writing Hindi and English, which fact was enquired by him from his villagers. He also admitted that his specimen of writing in English could not be procured as he did not know English. He also denied of taking any document in possession from transport, welfare as well as medical department, rather, recovery, if any, of disability certificate from accused was denied by him.
24. PW13 Dr. SS Rathore stated that on 28.5.1998, accused was examined by him and was issued disability certificate to the extent of 03%, which was signed by all the members of the Medical Board. He also testified that on the certificate Ext.PW10/A, photograph was of the same person (accused), who ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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was present in the court. He categorically stated that disability certificate has been tampered from 03% to 83% both in the letters .
as well as in words. In his cross-examination, he stated that he cannot say that address part and words in circle A, B resemble as he is not a handwriting expert and he cannot say that who had tampered with the figures and words on the certificate in question.
of He categorically denied that tampering could be the clerical mistake of his clerk, because the column of percentage of rt disability was filled by him (PW-13).
25. PW14, Dr. Minakshi Mahajan, Forensic expert stated that specimen was received in envelop bearing seal intact containing item No. Q1 to Q12 and specimen document S1 to S16.
She stated that her report is Ext.PW11/A bears her signatures along with reasons. In her cross-examination, she testified that opinion regarding Ext.P1 to P4 could not be furnished due to the subsequent additions and overwriting/ poor quality and quantity of specimen writing but she categorically denied that similar signatures can be done by a different person and she reported wrongly regarding similarity of signatures.
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26. Conjoint reading of evidence discussed herein above clearly suggests that Ext.PW1/A was forged, whereby figure '03%' .
was altered to '83%'. All the prosecution witnesses unequivocally stated that on 28th May, 1998, the then Medical Board had issued disability certificate in favour of the accused, wherein the then Medical Officer Dr. SS Rathore (PW13) after examining right hand of thumb of the accused had granted disability certificate to the accused because of post traumatic stiffness on right thumb, which rt was duly signed by other three members of the Medical Board.
27. Careful reading of the cross-examination of the prosecution witnesses suggests that there are no inconsistencies, material contradictions and discrepancies. Rather in their cross-
examination, they have stuck to their statements in the examination-in-chief, as has been observed above. No suggestion worth the name was put to these prosecution witnesses by the defence that there was any prior animosity or enmity and motive to depose against the accused falsely. It also stands proved on record that on the basis of disability certificate, accused actually availed the benefit of concessional certificates issued by HRTC as well as District Welfare departments.
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28. But now question, which remains to be examined by this Court in this case is that once appellate court after careful .
perusal of the evidence on record came to the conclusion that prosecution has not been able to prove its case beyond reasonable doubt that document in question was actually forged by the accused and accordingly, accused was acquitted of of having committed offence under Section 468 of the Indian Penal Code, could the accused be held guilty for committing offences rt under Sections 420 and 471 Indian Penal Code on the same set of evidence available on record?
29. During the arguments having been made by the learned counsel for the parties, this Court had an occasion to look into the documentary evidence available on record. This court has no hesitation to conclude that finding returned by the learned first appellate court to the effect that 'there is no material available on record to suggest that actually accused forged this document because entire evidence, which has been led in the present case by the prosecution though suggests that disability certificate was issued to the extent of "03%",' which was subsequently altered to "83%" but admittedly, no evidence worth ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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the name has been led on record to prove the forgery having been committed by the accused. Rather, it has come in the .
statement of the majority of the prosecution witnesses that accused is an illiterate person, who did not even know to write/read English and Hindi. Moreover, it also emerges from the record that no specimens, which were sent to the FSL, Junga, were of taken in English as accused was unable to read and write English.
Now, if the statement given by the accused under Section 313 rt Cr.PC is analyzed in view of the aforesaid statements of PWs qua illiteracy of accused and his having no knowledge of English and Hindi, then it can be presumed that stand taken by the accused wherein he stated that "he did not know that document is a forged one", appears to have some force. At this stage, it is pertinent to notice that had the accused forged the document and had full knowledge that it is a forged document, he would have certainly hesitated to appear before the Medical Board convened at the time of the renewal. It has come in the statement of the members of the medical board, as has been referred above, that they got suspicion since there was overwriting on the document and then only matter was got inquired from the ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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records. As observed above, had the accused known that document, which was sought to be reviewed by him, was a .
forged document, then probably, he would have never gone to the Medical Board. It has nowhere come in the statement of any of the prosecution witnesses that at the time of renewal, the accused appeared to be shaky, from where it could be inferred of that he tried to hide something. One thing also emerges from statement of PW-10 Surender that on the asking of the accused, rt two forms were supplied to him, which were filled by him and after affixing photographs, were sent before the Medical Board, for granting him disability certificate. But it also appears in his statement that there has been procedure, where after filing the forms, same are sent directly to the Medical Board for its report on the identity card as well as form. Here in the statement of PW3 though, there is mention with regard to identity card which was recovered at the time of detection of this forgery allegedly having been committed by the accused but perusal of the record nowhere suggests that it was taken into custody or got proved by any of the witness during recording of their statements before the learned trial Court.
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30. Court below while acquitting the accused under Section 468 came to the conclusion that it stands proved on .
record that on the basis of forged document accused knowingly availed the benefit of concessional passes issued by HRTC and identity card issued by the District Welfare Department, which has not been proved on record because that could not be taken into of consideration by both the courts below as far as use of concessional pass of HRTC is concerned. This court is of the view rt that once it stands proved on record that disability certificate was not actually forged by the accused, both the courts below erred in concluding that accused knowing fully well that it is a forged document tried to use the same for having benefit of concessional passes from departments. At the cost of repetition, it is again observed that it has come in the statements of prosecution witnesses that accused was an illiterate, knowing no English or Hindi, meaning thereby, he was not aware of the implications, if any, of any forgery allegedly committed by him or any other person. Had the courts below analyzed the evidence on record with a view to test and examine the stand taken by the accused under Section 313 Cr.PC, wherein he stated that he did not know ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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that this is a forged document, certainly finding to the effect that "accused knowing fully well that the document is forged used the .
same to avail benefit of concessional pass from HRTC", would have not been recorded by the courts below. Courts below did not make any attempt to examine material on record to ascertain whether it was typographical mistake committed by official of the of hospital while issuing certificate and no attempt, whatsoever, was made to ascertain that when accused did not know the English, rt who actually inserted these words in English in the certificate? It nowhere came in the evidence of the prosecution that accused was aware that he is using the forged document, rather, evidence available on record suggests that he remained under bonafide belief that it is a genuine document, then only he went to medical authorities to get it renewed.
31. In the present case, basic ingredient to prove charge under Section 420 of the Indian Penal Code is missing. Section 420 of the Indian Penal Code talks about "dishonestly inducement" of a person to deliver any property etc. In the present case, though prosecution has placed on record concessional certificate issued by HRTC but there is no complainant, who stated that accused ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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deceitfully induced the department (HRTC) to deliver something on the basis of alleged forged document. Admittedly, HRTC, .
issued concessional pass but did not make any complaint of the inducement, if any, in terms of Section 420 of the Indian Penal Code, rather, it has come in the statement of PW-11 Inspector Laxman Dass that no complaint whatsoever was ever lodged by of HRTC with regard to the availing benefit of concessional pass on the strength of forged disability certificate. Hence, case under rt Section 420 Indian Penal Code against the accused cannot be held to be sustainable.
32. As far as Section 420 of the Indian Penal Code is concerned, it stands duly proved on record that accused did not forge the document and there is overwhelming evidence of accused having no knowledge of English and Hindi. Rather, on the basis of evidence available on record, it can be presumed that accused always remained under the bonafide belief that disability certificate, being used by him, is a valid and genuine document. Prosecution has not led any evidence on record to prove that accused fraudulently and dishonestly used the document having full knowledge and reason to believe that same ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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is forged document. Hence, accused cannot be held guilty of having committed offence under Section 471 of the Indian Penal .
Code. In this regard, reliance is placed on judgment titled in Guru Bipin Singh v. Chongtham Manihar Singh and Anr., 1997 CRI.L.J.724, wherein Hon'ble Apex Court has held as under:-
"7. It is urged by Shri Jethmalani that for making a of false document, the person concerned has to make, sign, seal or execute the same. It is submitted rt that in the present case, even as per the complaint, the appellant had not move , signed, sealed or executed the alleged manuscript inasmuch as the allegation is that the appellant had passed on some writing as representing the same to be in the hand of the king. In the initial statement the complainant had stated that the appellant relied upon the fabricated book named above "showing the same as genuine and claiming it as written by late Maharaja Bhagachandra ........."
8. This shows that the allegations is that the appellant had represented some writing to be of the Maharaja, though in fact it was not so. It is not the allegation that the appellant had himself written the manuscript and represented it to be that of Maharaja. According to Dr. Ghosh, despite this being the position, requirement of 464 would be satisfied in view of what has been stated in ::: Downloaded on - 15/04/2017 20:28:58 :::HCHP
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Explanation shows that for it to get attracted "making of a false document" is essential; and it is this aspect which is missing in the present case, .
according to Shri Jethmalani. There is apparently force in the submission of Shri Jethmalani because, as already pointed out, it is not the allegation that it is the appellant who had made, signed, sealed or executed the writing in question. This apart, when of we desired Dr. Ghosh to bring to our notice as to which writing of King Bhagyachandra was represented to belong to him, we were referred to a rt printed book titled "Rajarshi Bhagyachandra Govinda Sangeet Leela Vilasa". This book, however, is a Manipuri translation by one Pt. Braj Behari Sharma, we do not have the original.
9. In view of all the above, we agree with Shri Jethmalani that the allegations made in the complaint, even if true, do not make out the case of forgery. Now, if forgery be not there, allegations under Section 420 would fail because the allegation in para 5 of the complaint is that by "forging the said book" deception was caused and members of the public were induced to purchase the same. So, forgery is the principal allegation; cheating being a consequential offence. If forgery goes, cheating cannot stand. So,the complaint sections, namely 420, 465 and 468. It may be pointed out that 468 is intimately connected with 420 and 465."
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33. In the totality of the facts and circumstances, as .
emerged from the record, this Court is of the view that once the courts had come to the conclusion that too on the basis of the same set of evidence available on record that accused has not forged the document, then their finding with regard to commission of of offences under Sections 420 and 471 does not appear to be based upon the solid reason.
34. rt Consequently in view of the aforesaid observations, this Court is of the view/opinion that the judgment passed by both the courts below holding accused guilty of having committed offences under Sections 420 and 471 Indian Penal Code are quashed and set aside and accused-petitioner is acquitted of the charges framed against him. Bail bonds are discharged. Petition stands disposed of, so also pending applications, if any.
May 27, 2016 (Sandeep Sharma),
manjit Judge.
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