Punjab-Haryana High Court
Crl. Appeal No. 1913-Sb Of 2003 (O&M) vs Central Bureau Of Investigation on 5 December, 2013
Author: Sabina
Bench: Sabina
Crl. Appeal No. 1913-SB of 2003 (O&M) -1-
Crl. Appeal No. 2069-SB of 2003 (O&M)
Crl. Appeal No. 2070-SB of 2003 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. Crl. Appeal No. 1913-SB of 2003 (O&M)
Date of Decision: 05.12.2013
Kashmir Chand ......Appellant
Versus
Central Bureau of Investigation .......Respondent
2. Crl. Appeal No. 2069-SB of 2003 (O&M)
Sukhdarshan Singh Bawa ......Appellant
Versus
Central Bureau of Investigation .......Respondent
3. Crl. Appeal No. 2070-SB of 2003 (O&M)
Jagtar Singh ......Appellant
Versus
Central Bureau of Investigation .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. S.P.S.Sidhu, Advocate
for the appellant.
(In CRA No. 1913-SB of 2003)
Mr. T.S.Sangha, Senior Advocate with
Mr. J.S.Lalli, Advocate
for the appellant.
(In CRA No. 2069-SB of 2003)
Mr. Ashok Jindal, Advocate
for the appellant
(In CRA No. 2070-SB of 2003)
Mr. Sumeet Goel, Advocate
for the respondent-CBI.
****
SABINA, J.
Vide this judgment, above mentioned three appeals Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -2- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) would be disposed of as the appellants have challenged their conviction and sentence as ordered by the Trial Court vide judgment/order dated 22.9.2003 under Section 120-B read with Section 420, 467, 468, 471 of the Indian Penal Code ('IPC' for short) and Section 13(1)(D) punishable under Section 13(2) of Prevention of Corruption Act, 1988 ('Act' for short) in RC No. 2-S-99 dated 5.10.1999, registered at Police Station Chandigarh.
Prosecution story, in brief, is that Panchayat elections were held qua 124 villages. Appellant Sukhdarshan Singh was functioning as Returning Officer for the Block Guru Har Sahai including village Chak Kathgarh. Gursharan Singh and Kashmir Chand were the candidates for the post of Sarpanch of village Chak Kathgarh. The polling took place on 21.6.1998. On the same day of polling, the votes were counted. Out of 1110 votes, 44 votes were invalid. Out of the remaining votes, Gursharan Singh got 543 votes whereas Kashmir Chand got 523 votes. Ravi Parkash declared Gursharan Singh as elected Sarpanch of village Chak Kathgarh. A certificate on form-IX was issued to the elected candidate and one copy was handed over to appellant Sukhdarshan Singh. All the appellants in conspiracy with each other got prepared a fake result sheet on 29.6.1998 from appellant Jagtar Singh thereby showing 543 votes in the name of Kashmir Chand and 523 votes in the name of Gursharan Singh, the winning candidate. Kashmir Chand- appellant was the ultimate beneficiary on account of this act of cheating and fraud. Gursharan Singh approached this Court by way of Civil Writ Petition No. 9897 of 1998 and the same was allowed by this Court vide order dated 29.7.1999 and Gursharan Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -3- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) Singh was declared the winning candidate and it was ordered that CBI should inquire into the matter.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Charge was framed against the appellants under Section 120-B read with Section 420, 467, 468, 471 IPC and Section 13(1)
(d) punishable under Section 13(2) of the Act.
In order to prove its case, prosecution examined 15 witnesses during trial.
Appellant Sukhdarshan Singh when examined under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), after the close of prosecution evidence, prayed as under:-
"A false case has been planted upon me at the instance of Bhagat Singh. Bhagat Singh was an Ex-Sarpanch of village Chak Kathgarh. I had ordered the recovery of about Rs. 5 lacs as he had embezelled the panchayat funds. He was quite close to Balwant Singh, A.R.O. The false case has been planted upon me at the instance of Bhagat Singh in connivance with Balwant Singh."
Appellant Kashmir Chand when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed as under:-
"I am innocent and has been falselly implicated by Gursharan Singh and Bhagat Singh in this case. I have no concern with Sukhdarshan Singh Bawa nor I connived with him. False case has been planted upon me due to enmity between Bhagat Singh, father of Gursharan Singh Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -4- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) and Sukhdarshan Singh Bawa. Bhagat Singh was a defaulter of Panchayat funds and due to this reason his nomination papers were rejected by Sukhdarshan Singh Bawa. I had polled 543 votes and declared elected as Sarpanch after the counting but later on I have been falsely involved in this case."
Appellant Jagtar Singh when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed as under:-
"A false case has been planted upon me on account of enmity with Gurparsad and sons of my uncle namely Sohan Singh who are in litigation with me and my father. The names of sons of Sohan Singh are Malkit Singh, Ranjit Singh & Harcharan Singh.
Appellants examined seven witnesses in their defence. Learned senior counsel on behalf of appellant Sukhdarshan Singh has submitted that PW-11 Gurparshad Singh was, in fact, the main accused and without declaring him an approver, he had been treated as prosecution witness. Hence, statement of PW-11 could not be relied upon. In the absence of the statement of PW-11, there was no evidence available on record against the appellants. Returning Officer appellant Sukhdarshan Singh was incharge of election qua 124 panchayats. The result had been prepared by the dealing persons. Hence, the Returning Officer could not be held responsible for any mistake in the preparation of the result.
So far as appellant Kashmir Chand is concerned, his Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -5- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) counsel has submitted that there was no material on record qua any criminal offence committed by him. He had been falsely involved in this case merely because he was the beneficiary.
So far as appellant Jagtar Singh is concerned, his counsel has submitted that as per the prosecution case, he had merely filled in the form. The said form did not attain finality till it was signed by PW-2 as Ravi Parkash.
Learned counsel for the CBI, on the other hand, has submitted that all the appellants, in connivance with each other, had prepared fake form-IX and had thereby declared appellant Kashmir Chand as a winning candidate whereas the election had been won by Gursharan Singh.
The present case was set in motion on the basis of the decision of this Court in Civil Writ Petition No. 9897 of 1998 decided on 29.7.1999. The relevant part of the judgment reads as under:-
"Resultantly, we set aside the notification, annexed as Annexure P-2 with the petition, issued by respondent No. 1, vide which respondent No. 5 Kashmir Chand has been shown to have been elected as Sarpanch and hold that Annexure R-1 (Ex. B1) does not depict the correct result of election of Sarpanch of village Chak Kathgarh. We also hold that the result depicted in Annexure P-1 (Ex. A1) is the correct result of the election of Sarpanch of village Chak Kathgarh which was so declared by the Presiding Officer after the result of the election on 21.6.1998.
We direct respondent No. 1 to notify the petitioner- Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -6- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) Gursharan Singh as elected Sarpanch of village Chak Kathgarh, Block Guru Har Sahai, Tehsil Jallalabad, District Ferozepur.
Consequently, this petition is allowed accordingly with costs which are quantified at Rs. 5,000/-. The State Government is at liberty to recover the costs from respondent No. 3, as according to us, he is the mischief behind all that has happened. We find prima facie that respondent No. 3, Sukhdarshan Singh, is instrumental in preparing the fake result and then sending it to the higher authorities for declaration of respondent No. 5- Kashmir Chand as Sarpanch of village Chak Kathgarh. We further order that a detailed enquiry be conducted by the C.B.I. into the whole matter in which we prima facie feel that respondent No. 3 has played the whole mischief. The enquiry shall be completed within three months from today by the C.B.I and appropriate action, including criminal proceedings, shall be taken by the concerned authority."
Thus, the offence committed by the appellants came to light when the writ petition filed by Gursharan Singh challenging the notification whereby appellant Kashmir Chand was declared elected Sarpanch, was set aside. The matter was duly investigated by the CBI in pursuance to the order passed by this Court in Civil Writ Petition No. 9897 of 1998. Gursharan Singh while appearing in the witness box as PW-1 has deposed that he had contested the election of Sarpanch of Gram Panchayat of Chak Kathgarh. Polling Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -7- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) and counting of the votes took place on 21.6.1998. Appellant Kashmir Chand was his rival candidate. Ravi Parkash, Presiding Officer had issued him form No. IX and he was declared elected as Sarpanch as he had secured 543 votes. So far as appellant Kashmir Chand is concerned, he had secured 523 votes. However, later he came to know that the result had been changed and appellant Kashmir Chand had been notified as Sarpanch of the Gram Panchayat Chak Kathgargh. He further deposed that in the writ petition, filed by him in this Court, he was declared as elected Sarpanch of the village.
PW-2 Ravi Parkash deposed that he was deputed as Presiding Officer of village Chak Kathgargh qua panchayat elections held on 21.6.1998. Counting of the votes took place and he prepared two forms No. IX and handed over one form No. IX to Gursharan Singh and another form No. IX was sent to BDPO along with entire election material in sealed bags. As per form No. IX, Gursharan Singh had got 543 votes whereas Kashmir Chand had got 523 votes. BDPO took two copies of form No. IX from him. Form No. IX Ex. PW2/1 did not bear his signature.
PW-11 Gurparshad Singh deposed that in 1998, he was posted as Panchayat Secretary Block Guru Har Sahai. Appellant Sukhdarshan Singh was posted as Block Development Panchayat Officer. Panchayat election of village Chak Kathgarh and Chak Mohantan Wala were held on 21.6.1998. Appellant Sukhdarshan Singh Bawa was the Returning Officer qua panchayat elections. On 29.6.1998, he was called by appellants Sukhdarshan Singh Bawa and Jagtar Singh at the residence of Sukhdarshan Singh Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -8- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) Bawa. He was asked to prepare a new result sheet with regard to panchayat elections of village Chak Kathgarh and Chak Mohantan Wala. Appellant Sukhdarshan Singh told him that Kashmir Chand was to be declared the winning candidate qua village Chak Kathgarh and Sher Chand was to be declared the winning candidate qua village Chak Mohantan Wala. Appellant Sukhdarshan Singh Bawa handed over blank form-IX as well as original form-IX to them. At the asking of appellant Sukhdarshan Singh Bawa, appellant Jagtar Singh filled the name of Kashmir Chand and Sher Chand in new forms No.-IX depicting them as winning candidates. At the asking of Sukhdarshan Singh Bawa, he signed the said forms on behalf of the Presiding Officers. Since he was on a temporary job, out of fear he signed the same at the instance of appellant Sukhdarshan Singh. The body of form-IX was filled in by appellant Jagtar Singh.
PW-14 R.Chandra, Hand Writing Expert has examined the forged and questioned writings of PW-11 Gurparshad Singh and appellant Jagtar Singh. PW-14 also examined forged and questioned signatures of PW-11 and the Presiding Officer PW-2. He has proved his reports on record wherein he had opined that the questioned hand writing/signatures matched with the standard writing/signatures.
In the present case, the allegations against the appellants are that they in connivance with each other had prepared a forged form No. IX which resulted in declaration of appellant Kashmir Chand as the winning candidate whereas the election had, in fact, been won by Gursharan Singh. In this regard, Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -9- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) Gursharan Singh has specifically deposed that he had been handed over copy of form No. IX which was duly signed by the Presiding Officer whereby he was declared the winning candidate. However, later notification came in favour of appellant Kashmir Chand declaring him as elected Sarpanch of the village. The said witness was cross-examined at length by the learned defence counsel and his testimony qua involvement of the appellants in the crime could not be shaken. PW-2 Ravi Parkash, Presiding Officer has corroborated the statement of Gurparshad Singh PW-11 in this regard. PW-2 has further denied his signatures on the fake form No. IX. The notification declaring Kashmir Chand as elected Sarpanch, was set aside by this Court in Civil Writ Petition No. 9897 of 1998 decided on 29.7.1999. Thus, this Court while deciding the writ petition found that the appellant Kashmir Chand had been declared a winning candidate on the basis of fake form No. IX.
There is no force in the argument raised by the learned senior counsel for the appellant that statement of PW-11 Gurparshad Singh was liable to be discarded as he had not been declared an approver. There is no doubt that as per Section 306 Cr.P.C., with a view to obtain evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence at the stage of investigation or inquiry or trial may tender a pardon on a condition of making a full and true disclosure of the whole of circumstances within his knowledge relevant to the offence. However, it is for the prosecution to decide as to qua whom it wants to array as an accused. CBI in the present case in its Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -10- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) wisdom did not array PW-11 Gurparshad Singh as an accused probably on the ground that the said witness being a temporary hand, had signed on behalf of the Presiding Officer. In good faith the CBI has not proceeded against the PW-11 as an accused. Appellants cannot insist that PW-11 Gurparshad Singh should have been arrayed as an accused and, thereafter, be declared an approver. During investigation or trial, no effort was made to array PW-11 Gurparsad Singh as an accused. Appellants cannot insist as to who should or should not have been arrayed as an accused or declared an approver.
Assuming that the statement of PW-11 was not on record, even then prosecution has been successful in proving its case against the appellants. The correct form No. IX, upheld by this Court in Civil Writ Petition No. 9897 of 1998, has been duly proved on record by PW-1 Gursharan Singh and PW-2 Ravi Parkash, Presiding Officer. Further, Ravi Parkash, Presiding Officer has denied his signature on fake form No. IX vide which appellant Kashmir Chand was declared the winning candidate. So far as appellant Kashmir Chand is concerned, he was the beneficiary and apparently, the fake form No. IX was prepared for his benefit and his involvement in the crime is evident from the said fact. So far as appellant Jagtar Singh is concerned, he has filled in the fake form. The questioned writing on form No. IX was got compared with the standard writing of appellant Jagtar Singh and as per the expert opinion, the same had been written by the same person. Argument raised by learned counsel for appellant Jagtar Singh that writing made by appellant Jagtar Singh had no value till it was signed by Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -11- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) Ravi Parkash, is without any basis. Appellant Jagtar Singh had filled in the fake form No. IX which was then purported to have been signed by Presiding Officer Ravi Parkash, although, PW-2 Ravi Parkash had not signed the same. As per the expert, the questioned signature of Ravi Parkash on form No. IX had been compared with the standard signatures of Gurparshad Singh and the same were opined to be by the same person.
Appellant Sukhdarshan Singh was the Returning Officer. He was responsible for sending the result to the District Head Electoral i.e. District Electoral Officer. The Presiding Officer had sent one copy of form No. IX to appellant Sukhdarshan Singh Bawa. Hence, the said appellant cannot take up the plea that mischief had been done by lower staff. Copy of form No. IX declaring Gursharan Singh as winning candidate was sent to him. Therefore, he was aware of the fact that winning candidate was Gursharan Singh. Since on the basis of fake form No. IX he had declared appellant Kashmir Chand as the winning candidate instead of PW-1 Gursharan Singh, it is evident that appellant Sukhdarshan Singh in connivance with his other co-accused had committed the offence in question.
Thus, in the present case, prosecution had been successful in proving its case. The Trial Court had rightly ordered the conviction and sentence of the appellants under Section 120-B read with Section 420, 467, 468, 471 IPC and Section 13(1)(D) punishable under Section 13(2) of the Act.
Accordingly all the appeals are dismissed. Conviction and sentence of the appellants, as ordered by the Trial Court, are Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh Crl. Appeal No. 1913-SB of 2003 (O&M) -12- Crl. Appeal No. 2069-SB of 2003 (O&M) Crl. Appeal No. 2070-SB of 2003 (O&M) upheld. However, the substantive sentence qua imprisonment of appellants Sukhdarshan Singh and Jagtar Singh shall run concurrently with their substantive sentence qua imprisonment ordered in R.C. No. 3-S-99 dated 5.10.1999 under Section 120-B read with Section 420, 467, 468, 471 IPC and Section 13(1)(D) punishable under Section 13(2) of the Act, registered at Police Station Chandigarh decided on 22.9.2003.
(SABINA) JUDGE December 05, 2013 Gurpreet Singh Gurpreet 2013.12.16 15:05 I attest to the accuracy and integrity of this document chandigarh