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Allahabad High Court · body

1991 DIGILAW 899 (ALL)

Udamr Singh v. State of U. P

1991-07-12

S.R.BHARGAVA

body1991
JUDGMENT S.R. Bhargava, J. - This appeal is directed against judgment and order of Sri M.P.S. Tomar, the then II Addl. Sessions Judge, Etah, passed in Sessions Trial No. 335 of 1976, acquitting Udaivir Singh, Phool Singh, Ajaipal Singh, Smt. Dulari and Hari Om Praksh of offence of conspiracy under Section 120-B I.P.C.; further acquitting Udaivir Singh, Phool Singh, Hari Om Prakash and Smt. Dulari of offence under Section 364 read with Section 120-B 1.P.C.; further acquitting Ajaipal Singh of offence under Section 120-B I.P.C. and Section 82(c) of the Indian Registration Act; convicting appellant Udaivir Singh with offence under Section 82(c) of the Indian Registration Act; appellants Phool Singh, Smt. Dulari and Hari Om Prakash of offence under Section 82(d) of the Indian Registration Act; and further convicting appellants Udaibir Singh, Phool Singh, Hari Om Prakash and Smt. Dulari under Section 120-B I.P.C.; sentencing Smt. Dulari to rigorous imprisonment for a term of two years under Section 82(d) of the Indian Registration Act and further sentencing her to two years under Section 120-B I.P.C.; sentencing appellants Phool Singh and Hari Om Prakash to rigorous imprisonment for a term of four years and fine of Rs. 1,000/- each and in default of payment of the further rigorous imprisonment for a term of one year under Section 82 (d) of the Indian Registration Act; sentencing appellant Udaibir Singh to rigorous imprisonment for a term of four years and fine of Rs. 1,000/- under Section 82(c) of the Indian Registration Act and in default of payment of fine further rigorous imprisonment for one year; further sentencing appellant Udaibir Singh, Phool Singh and Hari Om Prakash to rigorous imprisonment for a term of four years and fine of Rs. 1,000/- each and in default of payment of fine to undergo further imprisonment for a term of one year under Section 120-B I.P.C. Learned Addl. Sessions Judge made all the sentences concurrent. 2. Document, which has given rise to conviction and sentences of the appellants is Sale deed dated 13th October, 1970 purported to have been executed by one Hamir Singh of Amanpur, Pargana Pachgani, District Etah, in respect of his half share in 10.83 Acres land, in favour of appellant Smt. Dulari for a consideration of Rs. 8,000/-. This document was scribed by appellant Hari Om Prakash. 8,000/-. This document was scribed by appellant Hari Om Prakash. It was purported to have been thumb marked by Hamir Singh and was purported to have been witnessed by appellant Phool Singh and one Mahilal resident of Amanpur. This sale deed is purported to have been presented by Hamir Singh before the Sub-Registrar on 13th October, 1970 between one and two P.M. In the presence of the Sub-Registrar, Hamir Singh is purported to have acknowledged consideration of the Sale deed namely Rs. 8,000/-. It is said that appellant Hari Om Prakash and Phool Singh identified Hamir Singh before the Sub-Registrar and their thumb-impressions were obtained in the relevant Registrar of the Sub-Registrar and also on the Sale deed. The original Sale deed is not on the Lower Court record. A certified copy is Exhibit Ka-12. It is further alleged that on 10th February, 1970 the same Hamir Singh had executed mortgage deed Exhibit Ka-7 in respect of the same land in favour of Ajaipal Singh, Udaibir Singh, Shishu Pal Singh, Suresh Singh, Prempal Singh and Bhagwan Singh all real brothers, resident of village Amanpur. This mortgage deed was purported to have been witnessed by Roop Singh and Shanker Lal and was scribed by one Narayan Lal. It was prescribed before the Sub-Registrar on 10th February, 1970. Hamir Singh acknowledged payment of Rs. 8,000/- Hamir Singh, Roop Singh and Shanker Lalpur their thumb impressions on the Sale deed, in relevant register of the Sub-Registrar. 3. As it appears, Hamir Singh was un-married and had a sister Smt. Phoolwati. He was a man of indifferent character and had been to jail. He lodged a report dated 13th April, 1970 alleging that he was not given Rs. 8,000/- and was cheated. Report under Section 420 I.P.C. was recorded, but remained un-investigated. Prosecution case is that due to greed with the assistance of Phool Singh, Han Om Prakash and Udaibir Singh got a forged Sale deed prepared. He himself impersonated as Hamir Singh. He presented the Sale deed dated 13th October, 1970 before the Sub-Registrar impersonating as Hamir Singh and made false statement. He was assisted by Hari Om Prakash and Phool Singh, who falsely identified Udaibir Singh as Hamir Singh. 4. Then it is not disputed that Smt. Dulari moved mutation application in the Court of Tehsildar, Kasganj. He presented the Sale deed dated 13th October, 1970 before the Sub-Registrar impersonating as Hamir Singh and made false statement. He was assisted by Hari Om Prakash and Phool Singh, who falsely identified Udaibir Singh as Hamir Singh. 4. Then it is not disputed that Smt. Dulari moved mutation application in the Court of Tehsildar, Kasganj. When Hamir Singh got knowledge of the mutation proceedings he filed objections alleging the Sale Deed to be forged. He filed suit in the Court of Munsiff, Kasganj for the cancellation of Sale Deed. Smt. Dulari was defendant of the suit. Hamir Singh accused Ajai Pal Singh being colluded with the scribe and witnesses of the Deed in getting the forged Sale deed executed in favour of Smt. Dulari. Summons were issued to Smt. Dulari, 16th September, 1971 was fixed for hearing in the suit. In the meantime file of mutation proceedings was received in the Court of Sub-Divisional Officer, Kasganj, where Hamir Singh filed objections. It is not disputed that the nutation application of Smt. Dulari was dismissed. Defence case, however, was that the mutation application was dismissed for want of prosecution. Then 18th February, 1972 was fixed for the hearing of the suit. Summons sent by Registered Post was refused by Smt. Dulari. 5.Then the prosecution story was that on 18th February, 1972 Hamir Singh was proceeding to Kasganj to attend his suit in the Court of Munsif. In the way he joined Sheoraj Singh and others who were also proceeding to Kasganj. According to prosecution case on or before 18th February, 1972 all the five persons, namely, the appellants and Ajaipal Singh had entered into a criminal conspiracy to abduct Hamir Singh. In the way to Kasganj Ajaipal Singh, Phool Singh and Udaibir Singh induced Hamir Singh by deceitful means to go with them for seeking advice of his relations of village Lehra for compromise in the civil suit. Then these persons took away Hamir Singh. Thereafter he was neither seen nor heard. Hamir Singh did not attend the Court of Munsif on 18th February, 1972. But service on Sint. Dulari was held to be sufficient and the suit was ordered to proceed ex parte. It is said that on 11th April, 1972 Smt. Dulari moved application for setting aside exparte order. 6. After sometime Sint. Phoolwati came to see her brother on the occasion of Holi. But service on Sint. Dulari was held to be sufficient and the suit was ordered to proceed ex parte. It is said that on 11th April, 1972 Smt. Dulari moved application for setting aside exparte order. 6. After sometime Sint. Phoolwati came to see her brother on the occasion of Holi. She did not find Hamir Singh at his house in village Amanpur. She made enquiry in the village and came to know that Hamir Singh had not been seen in the village for the last so many days. She then went to village Lehra and made enquiries about Hamir Singh from her relations. She was told that Hamir Singh never reached there. Then Smt. Phoolwati alongwith her relations of village Lehra came to Kasganj and made enquiries from Mohd. Kamil one of the counsel of Hamir Singh in the Civil Suit. It was revealed that Hamir Singh was not attending for last two days.' Then Smt. Phoolwati lodged Report at police station Soro on 20.3.1972 at about 7 P.M. about disappearance of Hamir Singh. Only a G.D. entry was made. On investigation local police submitted final report. But the Circle Officer detained the final Report. Then investigation was entrusted to Criminal Investigation Department. After thorough investigation Criminal Investigation Department submitted Charge sheet against the appellants Ajaipal Singh for offence under Section 364 read with 120-B I.P.C. and Section 82 of the Indian Registration Act. 7. All the five persons including the appellants were charged with offence of abduction and criminal conspiracy under Section 364/120-B.I.P.C. Ajaipal Singh, Smt. Dulari, Hari Om Prakash and Phool Singh were charged with offence under Section 82 of the Registration Act. Accused Udaivir Singh was charged with offences under Section 82-C of the Indian Registration Act. At a latter stage the Sessions Judge charged all the accused with conspiracy for getting forged Sale Deed executed under Section 120-B. 9. Hamir Singh was not available and so no direct evidence was adduced. Number of witnesses were examined. But the main plan of the prosecution was the testimony of Sub-Registrar Rajendra Swaroop, P.W. 10, Sheo Mangal Pandey, Government Finger Print Expert, Forensic Science Laboratories, Lucknow, P.W. 11, his report Ex. Ka 18 on enlarged photographs of thumb impression both sample and disputed and photographer Mahesh Chandrani, P.W. 14. There was other formal evidence including that of investigation. 10. But the main plan of the prosecution was the testimony of Sub-Registrar Rajendra Swaroop, P.W. 10, Sheo Mangal Pandey, Government Finger Print Expert, Forensic Science Laboratories, Lucknow, P.W. 11, his report Ex. Ka 18 on enlarged photographs of thumb impression both sample and disputed and photographer Mahesh Chandrani, P.W. 14. There was other formal evidence including that of investigation. 10. Learned Sessions Judge did not believe the case of abduction of Hamir Singh. But he relied upon the thumb impressions in the register of Registration Department, the sample thumb impressions their enlarged photograph and the report of the finger print expert. He found that the sample thumb impression of Udaivir Singh tallied with the thumb impression in the Registration register about the Sale Deed. He further found that the thumb impressions in the register were of Om Prakash and two others. The learned Sessions Judge disbelieved the story of conspiracy of forged Sale Deed against Ajaipal. Hence he acquitted, convicted and sentenced the accused before him as stated earlier. In this appeal the first point requiring determination is whether Udaivir Singh impersonated as Hamir Singh in executing the Sale Deed and presenting the Sale Deed before the Sub-Registrar. It was argued on behalf of the appellant that there was only uncorroborated expert evident which cannot be basis of conviction. I am afraid that the science of finger prints has undergone scientific development and has become most dependable evidence. Now there is well settled law that conviction can be based on uncorroborated testimony of finger print expert. On behalf of the appellants testimony of the finger print expert was challenged on the ground that he has not received any training in photography. But his experience is vast. In enlarged photographs no discrepancy was pointed out. It was not said which photograph suffered from over exposure of underexposure. It was also apparent that the enlarged photographs represent the thumb impressions fully. The photographer was examined and from him also no defect in the photographs was elicited. The enlarged photographs show not only similarity in type, and formation, but also show as many as nine or ten other similarities. There is no reason to discard the testimony of the expert. It becomes clear that it was Udaivir Singh who appeared before the Sub Registrar and had put his thumb mark on the register of the Sub Registrar. He was the real execution. There is no reason to discard the testimony of the expert. It becomes clear that it was Udaivir Singh who appeared before the Sub Registrar and had put his thumb mark on the register of the Sub Registrar. He was the real execution. It is evident that he impersonated before the Sub-Registrar and made a false submission acknowledging the consideration of Rs. 8,000/-. It is evident that Phool Singh was a witness before the Sub-Registrar. This both Udaivir Singh and Hamir Singh knew. He abetted with Udaibir Singh impersonating. So far as Hari Om Prakash is concerned, his case was that he had only identified the witnesses before the Sub-Registrar. He examined defence witness, his colleague Prem Prakash, a petition writer, Kasganj, D.W.1, who deposed that the Sub-Registrar had told the petition writers only told identify the witnesses. It is evident that this witness was obliging his co-worker. It is evident that this witness only to identify the witnesses. It is evident from the copy of the Sale Deed and the register of the Registration Department that Hari Om Prakash witnessed and identified Udaivir Singh to impersonate Hamir Singh. I hold that the offence under Section 82(c) was clearly made out against Udaivir Singh beyond reasonable doubt. Smt. Dulari had pursued the Sale Deed by moving mutation application. She was the person getting benefit of Sale Deed manufactured by impersonation. She abetted with her son Udaivir in impersonating as Hamir Singh. It is further held that offence under Section 82(d) of the Act have been duly made out against appellants Phool Singh, Om Prakash and Smt. Dulari. 11. But when the charge of abetment under Section 82(d) has been made out there is no need of separate conviction for offence under Section 120B of I.P.C. Hence it is proper to set aside the conviction of all the appellants for offence under Section 120-B I.P.C. 12. Then the question arises about sentences. Appellant Udaivir Singh has to be sentenced for his offence under Section 82(c) of the Registration Act while appellants Phool Singh, Hari Om Prakash and Smt. Dulari have to be sentenced for offence under Section 82(d) of the Registration Act. The offence were committed more than 20 years ago. Appellants faced protracted investigation and trial. Section 82 of the Evidence Act prescribes jail sentence or fine. The offence were committed more than 20 years ago. Appellants faced protracted investigation and trial. Section 82 of the Evidence Act prescribes jail sentence or fine. After 20 years further jail sentence is not likely to serve any useful purpose. 13. I am of the opinion that all the appellants deserve sentence already undergone. Appellants Udaivir Singh was prime accused. He should be sentenced to fine of Rs. 8,000/-. Phool Singh, Hari Om Prakash and Dulari should be sentenced to fine of Rs. 4,000/- each. 14. In result, I partly allow appeal and set aside conviction and jail sentences of the appellants for offence under Section 120-B I.P.C. Conviction of appellant Udaivir Singh for offence under Section 82(c) of the Registration Act and conviction of appellants Phool Singh, Hari Om Prakash and Smt. Dulari for offence under Section 82(d) of the Registration Act are confirmed. Their sentences' are modified. Appellant Udaivir Singh is sentenced to period already undergone and fine of Rs. 8000/-. Appellants Phool Singh, Hari Om Prakash and Smt. Dulari are sentenced to the period already undergone and fine of Rs. 4000/- each. All the appellants shall pay fine within a month.