Gauhati High Court
Dambhidar Pegu vs The State Of Assam on 26 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 588
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/9
GAHC010210322014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 141/2014
1:DAMBHIDAR PEGU
S/O LT. TALAR PEGU VILL- SILAPIPOLGARI P.S. SILAPATHAR DIST.
KARIMGANJ, ASSAM.
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR.S M MOLLAH
Advocate for the Respondent :
Linked Case : Crl.Rev.P. 295/2013
1:UBAKAN PAIT
S/O LT. LABAR PAIT R/O VILL- KULAMUA
P.S. SILAPATHAR DIST. DHEMAJI
ASSAM.
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MRP GOGOI
Advocate for the Respondent : PP, ASSAM
Page No.# 2/9
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
Date : 26-06-2020 Both above petitions are taken up together for hearing and disposal as the revision has been preferred against the common judgment and order.
2. Heard Mr B K Mahajan, learned counsel for the petitioner in Criminal Revision No. 141 of 2014 and the learned Additional Public Prosecutor, Mr N K Kalita, for the State of Assam, in both the cases. However, none appears for the petitioner in the Criminal Revision Petition No. 295 of 2013, despite listing the matter for hearing on several occasions by showing the name of the engaged counsel.
3. The prosecution case in a nutshell is that one accused, Rajeev Pait faced the trial before the learned JMFC, in GR Case No. 822 of 2008 under Section 379 IPC. During the course of the trial, his father, Ubakan Pait, produced a school certificate, claiming the juvenility of his son/accused, Rajiv Pait, purported to be issued by the Headmaster of the ME School, namely, Dambhidar Pegu. On enquiry conducted by the Court, it was found that no such certificate was issued by the Headmaster of the said school, although signature in the certificate was admitted by the Headmaster. It was also found in the enquiry that said Rajeev Pait was also not a student of the said school as shown in the certificate. The learned Magistrate recorded such finding about the forgery of the school certificate and copy of order was forwarded to the OC, Dhemaji PS to register a case. Accordingly, a case was registered and investigated and charge sheet was submitted against the accused, Dambhidar Pegu, under Section 468/471; 420/511 IPC.
4. The accused petitioner Dambhidar Pegu faced the trial and denied the charge framed under Sections 468/471/420/511 IPC. During the course of the trial, another accused Ubakan Pait was impleaded as accused under Section 319 CrPC to stand the trial together with the co-accused. The said Ubakan Pait also denied the charge and claimed to be tried.
5. Prosecution examined 4 (four) witnesses in support of the prosecution and the defence examined none. Plea of the defence is of total denial. Learned trial Court, at the conclusion of the trial convicted the accused, Dambhidar Pegu under Sections 468/471 and sentenced him to one year RI and fine of Rs. 1000/- and in default, SI for one month under each sections of law. On the other hand, the accused Ubakan Pait was also convicted and sentenced under Section 471 IPC for a period Page No.# 3/9 of one year with fine of Rs. 1000/- and in default, SI for one month.
6. The appeal so preferred against the sentence was also dismissed by the appellate Court and by upholding the order of the trial Court in Criminal Appeal No. 44 (f) of 2012, vide order dated 01.04.2013. Challenging the order of the appellate Court, both the accused petitioners are before this Court by way of these revision petitions on the ground contending, inter alia, that the learned trial Court has failed to appreciate the matter in proper perspective of law and facts, when there was no any independent witnesses to establish the charges and the accused has been convicted merely on suspicion.
7. Mr B K Mahajan, learned counsel appearing for the accused petitioner, Dambhidar Pegu, has vehemently contended that the accused petitioner had no such fraudulent or dishonest intention while signing the school certificate to prove that it was issued for the purpose of cheating. Referring to the statement of the present accused person as well as the statement of the co-accused recorded under Section 313 CrPC, it has been pointed out that the co-accused, Ubakan Pait has clearly stated that he did not procure such certificate from the Headmaster, but from some other person, namely, Raj Kumar Doley, he has procured such certificate and the said Raj Kumar Doley is neither an accused nor a witness before the trial Court and both the learned trial Court as well as the appellate Court has not appreciated the statement of the accused person given under Section 313 CrPC. Further, it is contended that there is no positive evidence on record that the entire certificate was filled up by the accused person by his own had in connivance with the other accused, Ubakan Pait or his son, Rajiv Pait, in order to wrongful gain.
8. Learned counsel has also relied upon the decisions of the Hon'ble Supreme Court, wherein, it has been held that the Court is duty bound to consider the statement of the accused recorded under Section 313 CrPC and to give his anxious consideration as to whether the defence taken by the accused and the explanation given under Section 313 is acceptable or not in the light of the evidence on record. It has also been categorically held by the Hon'ble Supreme Court that charge of forgery cannot sustain against a person, who is not the maker of the false document in question.
9. It is the specific plea of the accused, Dambhidar Pegu that although he is a signatory of the said certificate in question relied upon by the accused Ubakan Pait, but he neither issued the same to Ubakan Pait or his son, Rajiv Pait at any point of time nor he is the writer of the certificates. Such school certificates were kept in the office of the school by simply signing by the accused so that it can be issued to the relevant persons on any application filed in this regard.
10. I have also considered the revision petition, preferred by Ubakan Pait, wherein he has stated Page No.# 4/9 that such certificate was signed by the other accused, Dambhidar Pegu and it was handed over to him through one Sri Raj Kumar Doley and believing the same to be a genuine one, he submitted the same before the learned trial Court, so, he is not responsible for the false certificate issued by Dambhidar Pegu. He has also challenged his conviction that the same has been rendered purely on suspicion, without any cogent evidence.
11. Learned Additional Public Prosecutor for the State has, however, submitted that there is no denial that the certificate was signed by the accused, Dambhidar Pegu, in the capacity of Headmaster, showing the age of the son of the accused, whereas, admittedly, Rajiv Pait, the son of the accused, Ubakan Pait was not a student of his school. On the other hand, the accused Ubakan Pait, knowing fully well that his son was not a student of the said school, procured and produced the said certificate in the Court of law in support of false claim. So, both the accused are liable to be convicted and, as such, there is no illegality in the order so passed by the learned trial Court, which has also been affirmed by the learned appellate Court.
12. Normally, revisional Court does not interfere into the current findings of the Court by re- appreciating the facts and evidence, but in appropriate cases, like in the present case, if the Court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, the Court is duty bound to consider such an aspect to unveil the truth. In the instant case, as we found that the prosecution has examined only 4 (four) witnesses, i.e., Magistrate (PW-1), who lodged a complaint for production of such false school certificate before him and the concerned Bench Assistant (PW-2) and PW-3 and PW-4 are the Investigating Officers. In view of the challenge made in this revision petitions, we have to appreciate the evidence as to whether prosecution has been able to prove the charge against the accused persons. PW-1, the Magistrate before whom, Rajiv Pait, the son of the accused, Ubakan Pait, faced the trial, has stated in his evidence that during the course of trial, Ubakan Pait produced an HSLC certificate issued by the Headmaster of the school, i.e., Dambhidar Pegu and accordingly, he also conducted an enquiry regarding issuance of such certificate. During the enquiry, the accused Dambhidar Pegu admitted about the signature in the disputed certificate, but has also stated that the accused, Rajiv Pait was neither his student nor he issued the same to the said Rajiv Pait or to his father. The learned trial Court treating the said certificate as a forged one lodged a complaint against the accused, Dambhidar Pegu.
13. In view of the denial of the accused Dambhidar Pegu that he never issued such certificate to the other accused, Ubakan Pait or his son Rajiv Pait, it was the duty of the prosecution to prove that Page No.# 5/9 the whole certificate was prepared by the accused, Dambhidar Pegu and the same was also issued to the other accused Ubakan Pait or his son Rajiv Pait for the purpose of cheating, but, no such evidence was adduced before the Court to prove the content of the Exhibit-2, the disputed certificate, prepared by he accused Dambhidar Pegu. The evidence of PW-1 and PW-2 is confined only to the fact that the said certificate was produced before the Court in the course of trial by the co-accused, Ubakan Pait, whereas, the accused, Rajiv Pait was not a student in the scholl of the accused Dambhidar Pegu. On the other hand, the IO registered as case as directged by the Magistrate, but they have not examined the said Rajiv Pait or Raj Kumar Doley to unveil the truth as to whether the said certificate was procured by them in order to prove the age of the accused Rajiv Pait. No other acceptable evidence is found to hold that it was the accused, Dambhidar Pegu, has prepared the disputed certificate, i.e. Exhibit-2, by his own hand or caused to have done by him. A bare perusal of the Exhibit-2 reveals that the certificate bears a fine signature of Dambhidar Pegu on the below of the certificate, but it has been filled up by some other handwriting, which does not tally with the handwriting of the accused, Dambhidar Pegu. Accordingly, it can be inferred that the said certificate was not prepared by the same person. Thus, there is a missing link as to who had prepared the said certificate or as to who procured the same from the school, save and except the fact that the said certificate was produced before the Court by the other co-accused, Ubakan Pait, in order to gain the benefit from the Court by knowing fully well that his son, Rajiv Pait is not a student of the said school.
14. On the next, the statement of both the accused persons recorded under Sectin 313 CrPC is relevant in the present case in the sense that both the accused persons have given a clear explanation of all about the matter. The accused, Dambhidar Pegu in his statement has specifically stated that he has not signed the school certificate to Rajiv Pait and that he simply kept some certificates signed in the office so that in his absence also, a student can obtain such certificate without any inconvenience. He also stated that the said Rajiv Pait was not a student of their school nor he was known to him and that he neither issued any certificate to Rajiv Pait nor to his father, Ubakan Pait. The other accused, Ubakan Pait, in his statement has also clearly stated that he has submitted such school certificate before the Court, which was procured by one Raj Kumar Doley and that he himself has not procured the same from the Headmaster. This statement obviously reflects that there was no conspiracy on the part of the accused, Dambhidar Pegu with the accused Ubakan Pait, for preparing such forged document to mislead the Court. Such a reply and response of the co-accused, Ubakan Pait, has given a clean-shit to the co-accused and only at the ill advice of the other person, i.e., Raj Kumar Doley, such a school certificate was procured even without the knowledge of the Headmaster of the School.. Thus, the accused, Ubakan Pait, who has used such certificate, knowing fully well that it is a false Page No.# 6/9 document (procured through the third person) is liable for the offence under Section 471 IPC.
15. Section 471 reads as follows:-
"Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record]."
16. As has been discussed above, the accused, Ubakan Pait has admitted about the production of the document before the Court of law, there cannot be any doubt that he has used the forged document as a genuine one in order to project a false plea of juvenility of his son.
17. So far as the other accused person is concerned, as we have discussed above that he has clearly stated admitted his signature in the certificate, but has denied that he ever issued such certificate to any of the accused persons.
18. As has been referred by the learned counsel for the petitioner, the Hon'ble Supreme Court in Reena Hazarika -Vs- State of Assam, reported in 2018 (0) AIR SC 5361, it has been held that Section 313, Code of Criminal Procedure cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Code of Criminal Procedure. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313 (1) (b) Code of Criminal Procedure, the Court is duty bound under Section 313 (4) Code of Criminal Procedure to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the Court to consider or not to consider such defence since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the iven facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the Court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing.
19. It is to be noted that in the present case, neither the trial Court nor the appellate Court took Page No.# 7/9 notice of the aforesaid statements of both the accused persons given under Section 313 CrPC, either to accept or reject the same. The defence taken by the accused Dambhidar Pegu is found to be consistent (which he revealed at the time of enquiry also) and relevant and the same can also be accepted in the sense that he was simply a signatory of the disputed certificate, but there is no acceptable evidence that he, in fact, issued the same to any of the accused person, in order to cheat the Court of law. A complete non-consideration of the statement of the accused rendered under Section 313 CrPC, obviously, has caused prejudice to the accused petitioner. It is to be worth mentioned that the prosecution has not been able to establish the evidence beyond reasonable doubt that the accused Dambhidar Pegu is the maker of the certificate in question.
20. Learned counsel for the petitioner has also relied upon the decision of the Hon'ble Supreme Court in 1) (1975) 4 SCC 252; Mohanlal Anand v. State (Delhi Administration) 2) (1979) 4 SCC 396; Sardar Trilok Singh v. Satya Deo Tripathi 3) AIR 1992 SC 1939; Nand Kumar Singh v. State of Bihar 4) (2011) 1 SCC 284; Monica Bedi -Vs- State of Andhra Pradesh 5) (2018) 7 SCC 581; Sheila Sebastian v. R. Jawaharaj & Anr, wherein, it has been succinctly held and discussed that charge of forgery cannot be imposed against the person, who is not a maker of the document in question.
21. In Sheila Sebastian (supra), referring to the decision in Mir Nagvi Askari v. CBI; (2010) 2 SCC (Cri) 718, it has been held as follows:-
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under thesaid section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case.The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document."
22. In Monica Bedi (supra) also, it has been held that in absence of any evidene to show that the accused prepared the false document with an intent to cause damage or injury, to the public or to any Page No.# 8/9 person, or to support any claim or title, with intent to commit fraud, the ingredients of Section 463 are not satisfied. In the present case, there is no evidence to show that the accused persons were hands in gloves with each other for the purpose of cheating. There is no evidence that the accused, Dambhidar Pegu prepared the false document with an intent to commit fraud, damage etc. and the ingredient of Section 463 IPC is not satisfied.
23. In the decision rendered in Sardar Trilok Singh (supra) and Mohanlal Anand (supra), it was held that merely obtaining signature in a blank paper itself is not a forgery, unless the paper is fabricated into a document to defraud. The Court was also also of the view that there was no acceptable evidence that the accused prepared such document with knowledge and connivance with the co- accused, such person cannot be held liable for the offence under Section 468 IPC.
24. Section 468 IPC reads as follows:-
"Forgery for purpose of cheating. --Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
25. From the discussion and findings made above, it is found that evidence is totally lacking as against the accused Dambhidar Pegu that he was the maker of the false document or that he had committed forgery with an intent to use the document for the purpose of cheating. He was neither found to have utilized the said certificate from his own side at any point of time nor it is proved that he has delivered the said certificate to the co-accused, Ubakan Pait or his son, Rajiv Pait.
26. In view of the entirety of the discussions made, in the facts and circumstances of the case and the nature of evidence available, coupled with the matter, for non-consideration of the statement of the accused under Section 313 CrPC, it cannot be said that the prosecution has been able to establish the offence under Sections 468/471 IPC against the accused Dambhidar Pegu. In that view of the matter, conviction of the accused Dambhidar Pegu under Sections 468 & 471 IPC is not sustainable, which calls for interference of the revisional Court. Consequently, conviction and sentence of the accused Dambhidar Pegu is hereby quashed and set aside.
27. However, so far as the accused Ubakon Pait, it was found that he has utilized the said certificate for the purpose of cheating the Court, treating the same as genuine, for which, he is liable to be punished under Section 471 IPC and the learned trial Court has rightly convicted him under the said sections of law. Only the aspect, which deserves observation that the said accused was 72 years at the time of giving his statement in the year 2012 and by this time, he is more than 80 years and Page No.# 9/9 situated thus, imposition of severe punishment and sentence upon him would be against the interest of justice. Accordingly, while maintaining the sentence under Section 471, he is sentenced only to a fine of Rs. 10,000/- and in default SI for one month.
28. Both the petitions are disposed of accordingly.
29. Return the LCR.
JUDGE Comparing Assistant