Jammu & Kashmir High Court
State Of J&K vs Chaman Lal Ganjoo
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Accq Appeal no. 74 OF 2007 State of J&K Petitioners Chaman Lal Ganjoo Respondent !Mr. P.C. Sharma, AAG ^Mr. P.N. Raina, Advocate Hon'ble Mr. Justice Muzaffar Hussain Attar Date: 05.05.209 :J U D G M E N T :
This case owes its origin to an anonymous complaint. It was alleged that the respondent has mutilated and changed the date of birth recorded in his original matriculation certificate from 16th of May, 1940 to 16th of May, 1948. It was further alleged that on the basis of this forgery made in the matriculation certificate, respondent has caused wrongful loss to State Exchequer and wrongful gain to himself by overstaying in government service and drawing salary and other pecuniary benefits. The anonymous complaint further made like allegations against other two employees as well. On this anonymous complaint, matter was referred to the J&K Board of School Education and Joint Secretary, Verification vide communication No. F(JS-VER)B/KD/04/V-1106 dated 26th of March, 2004 addressed to Mr. M.D. Banday, Deputy Director (Central), Accounts & Treasures, Finance Department, informed that the date of birth recorded in the certificate is fraudulently mutilated and was declared to be fake certificate. It was conveyed through this communication that as per the records lying with the State Board of School Education the actual date of birth of the candidate concerned is 16th of May, 1940. It was, therefore, concluded in this communication that certificate in question is fake and fraud. The said communication bears mark A. The investigation agency registered case FIR No. 13 of 2004 for commission of offence under section 420, 467, 468 and 471 RPC against the respondent. The investigating agency after completing its investigation came to prima facie conclusion that accused has committed offences and was accordingly send up for trial. The charge sheet has been framed by the trial court vide order dated 09th of October, 2004 as trial court was prima facie satisfied the accused need to be put on trial to afford the prosecution opportunity to prove the offence against the accused.
Prosecution out of eleven listed witnesses examined ten witnesses in support of its case. After the prosecution evidence was closed the accused was examined and the circumstances appearing against him were put to him. Respondent choose not to lead any evidence in his defense.
The prosecution has examined Pw Mohammad Amin who has deposed before the court that some migrant employees filed a complaint against the accused who at that time was working as Chief Accounts Officer, District Fund Office, Udhampur. Witness further stated that it was alleged that respondent has tampered with his service record and had produced a fake date of birth certificate. It was further deposed that complaint so received was sent to him by Deputy Director, same has been marked as EXPWMA. It was further deposed that respondent avoided to produce the documents but ultimately supplied Photostat copy of his service book and matriculation certification which thereafter was followed by production of original certificate. Further witness deposed that certificate was sent to Jammu and Kashmir State Board of School Education for verification who reported that certificate was fake. The communication received by the department of J&K State Board of School Education would inform that the certificate was fraudulently mutilated regarding date of birth and it was reported that date of birth of respondent is 16th of May, 1940. Thereafter on the basis of said communication, Government issue order 94-F of 2004 dated 06th of April, 2004 vide which respondent was deemed to have retired from service. After preliminary enquiry the matter was referred to police agency for registration of case and in this backdrop, the case was registered against the respondent.
In the cross examination, said witness deposed that complaint received by the office did not bear signatures of any one. It has been further deposed by the said witness that both certificates were sent for verification to the Board authorities. The service Book was not sent for any such verification. It has been admitted by the said witness that date of birth recorded in the service book of the respondent is 16th of May, 1948 (both in figures and words) and there is no mutilation in the service book regarding date of birth though service book was in custody of respondent. It has been further admitted by the said witness on cross examination that there being no mutilation in the service book regarding the date of birth recorded therein, same was not, accordingly, sent for verification. It is further admitted by the said witness that original matriculation certificate was not sent to FSL for obtaining expert opinion as to whether matriculation certificate was mutilated. The witness further deposed that excepting the communication of the Joint Secretary no record was sent by the J&K State Board of School Education to show that date of birth recorded in the matriculation certificate was mutilated. It is further admitted by the said witness that even no enquiry was initiated against the respondent in terms of J&K Civil Services (Classification, control and Appeal) Rules, 1956. Another Prosecution Witness Mehraj ud Din Banday, Deputy Director Accounts and Treasury, has deposed on same lines. The cross examination of the said witness was also conducted on the same lines as that of Pw Mohd. Amin. Statement of the said prosecution witness is only duplicating the statement of Prosecution witness Mohd. Amin.
Pw Snajay Gupta has deposed before the trail court that when he was posted in the officer of Director, CAT, Srinagar letter bearing no.7340-41 and letter bearing no. DGAT/CAE/399/169 was seized by police. Seizure memos bearing his signature and are marked as EXPWMD/2 and ExpWMD/3. No question was put to the witness in cross examination.
Pw Bashir Ahmad Wani in his statement tendered before the trial court stated that he was posted as Joint Secretary in the Board of School Education and was incharge of secrecy and verification section in the year 2004. He deposed that Photostat copy was received in respect of accused for verification. He has further deposed that he sought original document from the concerned authorities which, however, were not sent to him. He has seen the original certificate of file which bears mark B which does not bear endorsement of the said witness, notwithstanding, this fact that it has been written on the said document that same is fake as per verification. He has admitted that letter dated 26th of March, 2004 was written on his dictation and bears his signature which is marked as A. The said communication provides information about the certificate being fake which bears mark BA. On the basis of communication the witness has deposed as per record of board, date of birth of the respondent is 16th of May 1940. The communication written to SSP, Crime Branch, Srinagar bear his signatures (EXPWBA). During the cross examination witness stated that above referred letter was written after considering the record of the board. He has further stated that endorsement was written by the office on the certificate and simultaneously the letter was also written. The said witness admitted that he did not know who made endorsement on the certificate. The said witness has further admitted that matriculation certificate was not sent for FSL for examination. The said witness further admits that excepting endorsement letter (supra) no other record was seen by him on the basis of which the certificate was stated to be fake. It is further deposed that date of birth is recorded by a candidate in his own hand writing in the form and from that form the date of birth is recorded on the certificate. The certificate has been issued in the year 1959. It is also admitted by said prosecution witness that the original matriculation certificate was issued by university authorities and not by Board of School education. Witness further deposed that original record was not seized by the police.
Pw Mohd. Sultan has stated that he has initiated the letters marked as EXPWBA and EXPWBA/1. The said witness further stated that the endorsement about the certificate being fake was written by one clerk namely Shafaqat who was posted in the verification section on 03rd of June, 2004. During the cross examination the said witness has admitted that certificate was not sent for FSL for examination. He has admitted that endorsement on the certificate was written by Shafaqat declaring the certificate to be fake.
Pw Ghulam Mohi ud Din has also deposed on same lines.
Pw Nighat Ellayas Wani in her statement before the trial court has deposed that she conducted verification regarding the date of birth of the accused. She had verified the record. The letters EXPWBA and EXPWBA/1 dated 03rd of June 2004 does not bear her initial. She has further stated that as per verification date of birth of the respondent is 16th of May, 1940. Record is also brought and is verified by the Assistant Secretary of Board whereas original record was said to be lying with the board. Zerox copy of the form of respondent would show his date of birth 16th of May, 1940 and said form bears the signature of the candidate. The witness produced the Photostat copy of the form and other documents. During the cross examination the said witness deposed that the respondents passed matriculation examination in the year 1959, which certificate has been issued by university. The said witness has further admitted that neither the original application form nor the zerox copy thereof was sent to officer. The witness deposed that on the basis of the above referred record it was said that the certificate is fake. Pw Om Prakah has deposed that the statement EXPWRS-1 was prepared by him and it also bears his signatures. During cross examination witness deposed that statement was prepared on the instructions of Crime Branch. He has no personal knowledge about the case.
Pw Romesh Singh deposed before trial court on July, 2004 he was working as Chief Accounts Officer, District Fund Officer, Udhampur. A communication was received from crime branch for making available salary statement of the respondent. Service Book was made available to the crime branch as also salary statement made on the basis of service book. He signed the statements marked as EXPWRS, EXPWRS/1 and EXPWRS/3. The amount of Rs. 10,67,031/- (rupees ten lacs sixty seven thousand and thirty one only) has been received by the respondent. During the cross examination the said witness deposed that the age of retirement of accused was 58 years. He has further deposed that the respondent would retire on superannuation from the service w.e.f. 31st of May, 2006 if his date of birth is considered as 16th of May, 1948. Witness admitted that the date of birth recorded in the service book of the respondent is 16th of May, 1948 and as such respondent has right to continue in service till 31st of May, 2006. It is further deposed that in terms of Government Order respondent was ordered to retire from service vide order dated 06th of October, 2004. Witness has stated that he has no knowledge as to whether respondent has tampered his date of birth in matriculation certificate.
Pw Ghulab Chand Manhas deposed that he was entrusted with the investigation of the case. He has given all details which are given in report under section 173 Cr.P.C. He has deposed that after conducting investigation as per his assessment the case under section 420, 467, 468 and 471 RPC was made out against the respondent. During the cross examination witness has deposed that letter dated 05th of May, 2004 and EXPWGC/1 was written in connection with the investigation of the case. Investigation Officer has in unambiguous words admitted that EXPWMA/2 reflects a bare statement that respondent had tampered with the date of birth in the service book. The Investigation Officer has further admitted that he has not conducting investigation in respect of allegation as to whether respondent had tampered with the date of birth recorded in the service book. He has further deposed that he did not seize any record from Board of School Education.
It is on the basis of these allegations and the evidence of the witnesses the appellants pray that the judgment passed by the trial court acquitting respondent of charges be set aside and respondent be convicted and sentenced for the offences for which he was charged.
Heard learned counsel for parties. Considered the material placed on record. Mr. P.C. Sharma, AAG in support of the appeal submitted that the offence has been proved against the respondent, in view of the evidence lead by the prosecution before the trial court. On the other hand Sh. P.N. Raina, learned counsel appearing for respondent submits that on the basis of the material available on the record no offence is shown to have been committed by the respondent and the prosecution has miserably failed to prove the guilt against the respondent. Learned counsel further submits that prosecution is duty bound to prove the case against the respondent beyond all shadow of doubt which is one of the cardinal principle in criminal justice system to award penal punishment to a person.
The investigation in this case as is revealed by the record was set into motion by an anonymous letter. The letter besides indicting the respondent also made like allegations against two more employees. Whether any action is taken against those employees, the appellants are silent about the same.
Be that as it may, it is to be seen whether on the basis of material available on the files it can be said that the offence with which the respondent was charged with, have been proved beyond all shadow of reasonable doubt. The entire case of the prosecution is based on the communication of Joint Secretary, Verification (EXPWBA). The said communication does reveal that the certificate is fake and fraud and date of birth is fraudulently mutilated.
There is no original record either seized by investigating agency during the investigation of the case or produced before the trial court to substantiate this allegation. In order to prove the guilt against the respondent, it was duty cast on the investigation officer to seize the original record which would show that the matriculation certification has been fraudulently mutilated in respect of date of birth recorded therein. The investigation officer was further duty bound in such type of case to send the original certificate to the expert for obtaining an expert opinion as to whether any mutilation has been effected in the matriculation certificate of the respondent, so far it pertains to his date of birth. The investigation officer having not chosen to follow the right course has failed in conducting the investigation in accordance with law. On the basis of mere communication, in a court of law, it cannot be said that date of birth has been fraudulently mutilated in the matriculation certificate. It is also admitted by the prosecution witness that no departmental enquiry was conducted to show and prove that date of birth in the matriculation certificate has been fraudulently mutilated. The prosecution has failed to prove that mutilation has been affected in the matriculation certificate. Another important aspect of the matter is that shafqat who was clerk in the secrecy and verification section who has given the report that the certificate is mutilated, fake and fraud is not examined by the investigating Officer and was not even produced before the trial court during the trial of the case. The Shafqat was the important witness for the prosecution to prove offence with which respondent was charged.
This Court would least comment as to why the Shafaqat who was main prosecution witness was not examined by the Investigating officer and even not produced before the trial court during the trial of the case, but an inference has to be drawn against prosecution, that if he was produced would speak against prosecution. It is true that criminal justice system has to be strengthened in order to maintain and preserve the moral fabric of the society. In a court of law person can be pronounced to be guilty and thereafter sentenced only when guilt is proved against him in accordance with law and that too beyond all shadow of doubt. The right to liberty of a person charged of an offence cannot be deprived of only on surmises, as it is a guaranteed right under Article 21 of the Constitution. If a person has to be deprived of his right to liberty then the offences with which he is charged are to be proved strictly in accordance with procedure established by law.
On the conspectus of above discussion, the prosecution has failed to prove the guilt against the respondent. Respondent has been rightly acquitted by the trial court. This appeal in the above stated backdrop is, accordingly, dismissed. Before parting with this judgment let it be put on record of this judgment that Socrates has said that "punishment for crime is cure for evil and justice leads to that punishment." Appeal dismissed.
Jammu (Muzaffar Hussain Attar) 05.05.2009
Judge
Paramjeet