Punjab-Haryana High Court
State Of Haryana vs Zile Singh And Others on 14 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 636-SBA of 1997
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 636-SBA of 1997
Date of decision:- 14.1.2010
State of Haryana
...Appellant
Versus
Zile Singh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present:- Mr. Deepak Jindal, DAG Haryana for the appellant.
Mr. K.S. Malik, Advocate for respondent No.1-Zile Singh (statedly has died). None for respondent Nos.2-Ram Kumar and No.3-Nahar Singh. KANWALJIT SINGH AHLUWALIA J.
Zile Singh son of Hasti Ram, Ram Kumar son of Phool Singh and Nahar Singh son of Khem Chand were named as accused in case FIR No.217 dated 15.12.1982, registered at Police Station Jhajjar, under Sections 120-B, 420 read with Section 120-B IPC, 467 read with Section 120-B IPC, 468 read with Section 120-B IPC and 471 IPC. The Court of Judicial Magistrate 1st Class, Jhajjar convicted them for offence under Sections 420, 467, 468, 471 read with Section 120-B IPC as they were sentenced as under:-
Criminal Appeal No. 636-SBA of 1997 -2- Under Section 420 IPC Rigorous imprisonment for two years to each one of the accused with a further order to pay a fine of Rs.500/- each or in default of payment of fine, the defaulter to further undergo imprisonment for 1-½ months.
Under Section 467 IPC Each one to undergo Rigorous imprisonment for three years and to pay a fine of Rs.1000/- or in default of payment of fine to further undergo rigorous imprisonment for three months.
Under Section 468 IPC Each one to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- or in default of payment of fine to further undergo rigorous imprisonment for 1-½ months.
Under Section 471 IPC Each one to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- or in default of payment of fine to further undergo rigorous imprisonment for 1-½ months.
It was further ordered that all the sentences would run concurrently."
2. Aggrieved against the conviction and sentence Zile Singh, Ram Kumar and Nahar Singh filed separate appeals in the Sessions Court, Rohtak. The three appeals filed by the accused were decided by a common judgment, rendered by Additional Sessions Judge, Rohtak, who after minutely discussing the evidence, recorded their acquittal.
Criminal Appeal No. 636-SBA of 1997 -3-
3. State of Haryana was not satisfied with the acquittal and had filed present appeal against acquittal in the year 1997. Shri K.S. Malik, Advocate has stated that Zile Singh accused-respondent during the pendency of the appeal has expired, therefore, the said appeal qua him would abate. This Court in normal course would have asked for the report from the concerned quarters but after evaluating and assessing the evidence this Court is of the opinion that no interference is warranted in the present appeal against acquittal, therefore, this exercise is not being undertaken.
4. Now to proceed with the case, it will be necessary to notice the facts. The Land Acquisition Collector, Irrigation Department, Rohtak addressed a letter Ex.PW12/A to the Sub Inspector, Jhajjar. In this letter, it was stated that the complainant was posted as Land Acquisition Officer, Rohtak in July, 1982. He used to acquire land for Government and for the land acquired, as per the award given by the Collector, amount of compensation, which was not paid to the claimants on the same day, was deposited in the account under the head "Land Revenue Deposit". Later, in case, person, whose land was acquired, appeared or made request for release of the amount, refund voucher was prepared. The amount pertaining to the land, acquired at Village Shahjahpur, was deposited with Assistant Field Officer, Jhajjar on 29th September, 1978. An amount of Rs.13,340/- was deposited in the name of Arazi Mutruka Bila Alat Shuda (Evacue property which has not been allotted). The Assistant Field Officer, Jhajjar communicated to the Land Acquisition Officer that the said amount was disbursed to Zile Singh. Shorn of the details, which have been meticulously given in the judgment of two courts below, the matter of fact is that Rs.13,340/- were released to Zile Singh, who was not entitled to disbursal of the same as his no land was acquired and he was not entitled to the amount, which pertained to evacuee property, which has not been allotted. On the basis of the letter Ex.PW12/A FIR Ex.PW14/A was registered on 15.12.1982. Occurrence in the Criminal Appeal No. 636-SBA of 1997 -4- present case pertains to 28.7.1981. The prosecution examined 17 witnesses. Gist of that evidence has been recorded by learned trial Court in para No.6 to 22. As a matter of convenience, same is reproduced below:-
"6. PW1 O.P. Deswal deposed that he has seen R.D. No.498/1020 on which Zile Singh son of Basti affixed his thumb impression on Ex.PA in his presence and he had identified the accused present in the court.
7. PW2 Kharaitilal Clerk deposed that he has prepared the copy of R.D. No.498 dated 25.9.78 on which the signatures of A.T.O. exists. The certified copy is Ex.PW2/A. The R.D. voucher was passed on the identification of O.P. Deswal, Advocate on 22.7.81 for Rs.13,340/-.
8. PW3 Ramjidass A.T.O. deposed that he has seen the R.D. Vouchers No.143, R.D. No.498 dated 25.9.78. A sum of Rs.13,340/- was deposited in the R.D. and the same was passed on 25.7.81 by Nahar Singh assistant in the name of Zile Singh son of Basti, R/o Shahjahanpur, on which Nahar Singh put his signature. He also signed the voucher which is Ex.PA. Under this R.D. an amount of Rs.13,340/- was deposited by Land Acquisition Collector, Rohtak and the dealing of this R.D. was with Nahar Singh Assistant. According to their rules, when a voucher is received it is the duty of the dealing assistant to verify the signature etc. If the signatures are correct, then the assistant will get his signature on payment order. If there is any deficiency, the objection for the purposes is imposed on the voucher.
9. PW4 Sher Singh ASI deposed that he remained partly Investigating Officer of this case and joined Ramji Dass A.T.O. in the investigation, whose statement under Section 161 Cr.P.C. was recorded. He had arrested Nahar Singh accused on 20.12.83.
10. PW5 Sher Singh SI, Finger Print Expert-cum- photographer deposed that on 18.9.84 some documents received by him through Om Parkash C.No.1061. After examination he was given the same for preparation of Criminal Appeal No. 636-SBA of 1997 -5- photographs on 20.9.84 and he prepared the photographs on that very day and presented to Director. Sample papers S-1 and disputed impression marked Q1, Q2 and Q3 are of Zile Singh. He has sent the report which bears his signature, which is Ex.PW5/A to Ex.PW5/C. The Director also put his signature on the same. He also proved annexure X-1 Ex.PW5/D and also Annexure X-2 Ex.PW5/E.
11. PW6 Jagdish Singh clerk deposed that voucher R.D. No.498 of Rs.13,340/- regarding Araji Matruka Bila Alat Suda was with him when F.I.R. was registered.
12. PW7 Ranbir Singh DRO deposed that on 20.5.88 Suraj Bhan ASI brought an application Ex.PW7/A. The specimen signatures and hand writings were obtained of Nahar Singh clerk in his presence, which are Ex.PW7/B to Ex.PW7/D, which bears his signatures and his report is Ex.PW7/E.
13. PW8 Mahabir Singh Cashier of State Bank of Patiala deposed that he has seen original voucher No.143 on which payment of Rs.13,340/- was made to Zile Singh son of Basti Ram, R/o Shahjahanpur on 28.7.81, scroll No. is 103, R.D. No. is 498 dated 25.9.78. The above payment was made by his bank. The entry of which is at serial No.9 of Government deposit scroll and the same is entered at serial No.16 on cashier scroll. The copy of which is Ex.PW8/A.
14. PW9 Ashok Kumar deposed that entry No.143 Ex.PA, which is in the name of Zile Singh son of Basti Ram, R/o Shahjahanpur. He has identified the accused on 28.7.81. Zile Singh affixed his thumb impression in his presence and he is identified the accused in the State Bank of Patiala.
15. PW10 Bir Singh deposed that he had partly investigated the case and recorded the statement of the witnesses.
16. PW11 Jagmal Singh, Section Officer deposed that he has handed over original voucher R.D. No.498 dated 30.9.78 for Rs.13,340/- paid on 31.7.81 after getting the photostat copy of the same, which was taken by police possession vide recovery memo Ex.PW11/A, which bears his signatures.
17. PW12 B.C. Puri, HCS (Retd.) deposed that he Criminal Appeal No. 636-SBA of 1997 -6- remained posted as Land Acquisition Officer in irrigation Department from July, 82 to March, 85. A letter dated 13.12.82 was issued by his office which bears his signatures which is Ex.PW12/.A. Office note also bears his signature, which was presented by Jagdish Singh Clerk which is Ex.PW12/B and certified copy of unpaid register District Rohtak is Ex.PW12/C.
18. PW13 Jai Singh deposed that he remained posted as Tehsildar at Jhajjar in the year 1983-84. ASI Suraj Bhan presented an application Ex.PW13/A to him. Thumb impressions on sample paper of Zile Singh son of Hasti Ram were obtained in his presence. He had attested the same on the identification of Surajbhan ASI. Sample paper is Ex.PW13/B. Another sample paper is Ex.PW13/C, which was also taken in his presence. Another application Ex.PW13/D was received by him on 18.7.83. Samples of specimen signatures and hand writing of Ram Kumar Clerk were taken in his presence, which are Ex.PW13/E to Ex.PW13/G, which were attested by him on the identification of Surajbhan.
19. PW14 Surajbhan SI/SHO deposed that he remained Investigating Officer of this case. Specimen signatures, thumb impressions and hand writing of accused Ram Kumar, Nahar Singh and Zile Singh were taken by him, which were attested by Tehsildar, Jhajjar, which were Ex.PW13/B, Ex.PW13/E to Ex.PW13/G, Ex. PW7/A to Ex.PW7/E and Ex.PW13/A. Sample thumb impression of Zile Singh are Ex.PW13/C, which were taken in his presence on the application Ex.PW13/D. Accused Ram Kumar and Zile Singh were arrested by him. Ex.PW14/A FIR was recorded by Raj Singh SI/SHO. The challan was prepared by Raj Singh SI/SHO.
20. PW15 P.R. Bishnoi S.D.M. Gurgaon deposed that he was posted as Asstt. Land Acquisition Officer at Rohtak on 16.7.81. He has seen Ex.PA original voucher No.143 for Rs.13,340/- under R.D. No.498, which bears his signature in Hindi. This form has been filled by Ram Kumar Accounts Clerk of L.A.O. Office, Rohtak. This bill bears initial of Ram Criminal Appeal No. 636-SBA of 1997 -7- Kumar in token of correctness of the payment and also regarding proper person. He identifies the hand writing of Ram Kumar Account Clerk, who had worked under him. It was the duty of Ram Kumar to fully verify the voucher, which received in his office and also to ascertain that the payment was being given to a proper person, and that person was entitled for that payment. After verifying of the correctness and filling the form, accused used to sign the same. He has seen the voucher which bears initial of accused Ram Kumar. He used to sign the voucher after perceiving the initials of Accounts Clerk. The payment was made to Zile Singh son of Basti, R/o Shahjahanpur under R.D. voucher No.143. This voucher have issued regarding Araji Matruka Bila alat Suda. The voucher was prepared with the conspiracy of Zile Singh and Ram Kumar Accounts Clerk.
21. PW16 R.D. Pahwa Kanoongo sales deposed that he has brought property register and sale file. Muraba No.54 Killa No.24 and 23/1, 54/23/1 measuring 4 Kanals was auctioned on 4.12.73 to Prabhu son of Phosa and it was re- sold on 23.4.74. This property was auctioned many times, but sale could not be confirmed. Now the Department of Consolidation is owner of this property, which has now been acquired. He does not know whether the Department has taken its compensation or not.
22. PW17 Roshanlal Patwari deposed that he has brought mutation register of village Sahjahanpur. According to his record no land was acquired of Zile Singh son of Hasti. According to Mutation No.1145 dated 24.11.80 no land of Zile Singh was acquired. Land measuring 11 Kanals 12 Marlas of Killa No. 54/23/1(4-0) and 24(7-12) was acquired by the Haryana Government according to Intkal No.1145. The land was Araji Matruka Bila Alat Suda."
5. The learned trial Court rejected the arguments that to prosecute the Government officials, sanction under Section 197 of the Code of Criminal Procedure was mandatory. The trial Court rightly held that preparation of forged documents is not part of official duty. However, the trial Court rejected the Criminal Appeal No. 636-SBA of 1997 -8- argument that prosecution has failed to establish dishonest intention and the charge of conspiracy on the part of the accused. Finally, the trial Court concluded that the accused conspired with each other for preparing the forged refund voucher with dishonest intention and encashed refund voucher Ex.PA was a valuable security.
6. These findings were assailed by the accused in their appeal, which was accepted by Additional Sessions Judge, Rohtak. The lower Appellate Court for recording acquittal, recorded following reasons:-
i) On the refund voucher (Ex.PA) writing (Mark Q4) was found to be of Ram Kumar accused but initials of this accused below the signatures of the Land Acquisition Officer (Mark Q5) could not be proved to be in the hands of Ram Kumar. The report of the Forensic Science Laboratory (Ex.PK) was lacking on this aspect.
ii) Similarly, writing of Mahabir Singh at Mark Q6 was proved on the voucher but his initials below the signatures of the Assistant Treasury Officer were not proved.
iii) The learned trial Court formulated a view that dealing Clerk or dealing Assistant in the Treasury Office has no authority to issue refund voucher, therefore neither the Assistant Treasury Officer nor the Land Acquisition Officer at the relevant time were named as accused.
iv) The lower Appellate Court further held that the prosecution failed to prove that as to how much of the land in all was acquired. Relying upon the testimony of PW16 Shri R.D. Pahwa and statement of PW17 Roshan Lal Patwari the lower Appellate Court held that the prosecution has not conclusively proved that no land of Zile Singh was acquired. Therefore, the lower Appellate Court held as under:-
"Even this witness has no where stated that any land of accused Zile Singh in village Shahjahanpur was not acquired for the Criminal Appeal No. 636-SBA of 1997 -9- purpose for which the evacuee property in question was acquired. The defence plea that some land of Zile Singh was acquired for which he had gone to obtain the voucher of compensation and that since he was an illiterate person, he could not have known as to what entries were made in the voucher, cannot be discarded straightaway."
v) The lower Appellate Court has not given credence to the arguments rendered by the defence counsel that the signatures and thumb impressions of the three accused were not obtained legally by the Investigating Officer. Though this argument was not developed, a reference can be made to judgment of Hon'ble Apex Court rendered in Sukhminder Singh v. State of Punjab 1994 Supreme Court Cases page 152, therefore, there was a breach on the part of investigating agency on this score also.
vi) The lower Appellate Court also examined the issue as to who first prepared the voucher and observed as under:-
"Shri Prithvi Raj Bishnoi was the concerned Land Acquisition Officer. He admitted his signatures on the voucher at Ex.PA. That means it was he who passed the voucher. He admitted that the vouchers used to be prepared by his Reader or his Accounts Clerk on the basis of a report submitted by the patwari or the Kanugo and that the concerned revenue record used to remain in the care and custody of patwari and Kanugo and Naib Tehsildar. These three officials were also working under him. No report of the Patwari, Kanungo, of the Naib Tehsildar has been placed on record to show that they had recommended the preparation of voucher for payment of compensation of this land or not and if yes in Criminal Appeal No. 636-SBA of 1997 -10- whose favour."
vii) The lower Appellate Court also drew adverse inference against the prosecution for not examining Sita Ram Clerk and observed as under:-
"It is in the first information supplied to the police by the Land Acquisition Officer, Rohtak, at Ex.PQ12-A on the basis of which the FIR was registered in this case, that one Sita Ram Clerk was working as Reader to the Land Acquisition Officer and that the job of preparation of refund vouchers was entrusted to this Clerk. Neither Sita Ram, Clerk has been produced as a witness nor the specimen of his initials were obtained nor it was found out as to whose initials were there on the said voucher at Mark Q5, below the signatures of the Land Acquisition Officer."
It was concluded that the entire responsibility for making a wrong entry in the voucher cannot be conclusively construed on the part of Ram Kumar accused alone.
Viii) Thereafter, the lower Appellate Court examined the procedure normally followed in the case and held as under:-
"There is no evidence on record to show that there was any information available with the Treasury Office that the amount of Rs.13,340/- lying in R.D. A/c No.498 dated 25.9.1978, was meant for compensation to be paid to the custodian of the Evacuee property. There is no evidence, in fact, to show that there was any information supplied by the Land Acquisition Officer to the Treasury Officer, to show that this amount was payable to such and such person. In the absence of any such information, any official in the office of the Treasury Criminal Appeal No. 636-SBA of 1997 -11- Officer, would not have been required to go to the office of the Land Acquisition Officer to verify as to whether the voucher was issued to proper person entitled for the payment or not. He verified the signatures of the issuing authority, he verified the amount as also the R.D. Number and also the identify of Zile Singh and then appended an order for payment of the voucher amount of any other thing or the voucher was to be verified, it was the duty of the Treasury Officer to have got it verified as written in para No.31 of the Sub-Treasury Manual IIIrd Edition. Any how, even the Treasury Officer could have not suspected the genuineness or otherwise of the vouchers."
ix) The lower Appellate Court held that the prosecution has failed to prove that there was evidence on the record to prove the union of minds of three accused at any time and therefore, the evidence to prove conspiracy was lacking.
x) Lastly, the lower Appellate Court adversely commented upon the procedure adopted by the trial Court in recording statements under Section 313 Cr.P.C. It held that all incriminating material circumstances were not put to accused taking into consideration long pendency of the trial. The lower Appellate Court found it appropriate not to remand the matter and record acquittal of the accused.
7. Though, the lower Appellate Court had delivered the judgment on 4th of February, 1997, a period of more than 13 years has been elapsed and the occurrence in present case pertain to July 1981. Therefore, the request of the Criminal Appeal No. 636-SBA of 1997 -12- counsel for the State that now matter be remanded for recording the statements under Section 313 Cr.P.C. cannot be accepted. Especially when Zile Singh accused has statedly expired. Nobody is appearing for two other accused. Twenty nine years is too long a period to undertake journey of remanding the case. Breach of right to ensure speedy trial is itself cause prejudice to the accused. From the reasoning of the lower Appellate Court, it is evident that the judgment is neither perverse nor perfectory. It has been held that in appeal against acquittal if one opinion formulated by the Court below is possible, no interference is warranted by the Court entertaining of appeal against acquittal. Thus, there is no merit in the present appeal against acquittal and the same is dismissed.
January 14, 2010 ( KANWALJIT SINGH AHLUWALIA ) vj JUDGE