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Himachal Pradesh High Court · body

2000 DIGILAW 144 (HP)

RANBIR SINGH v. STATE OF H. P.

2000-06-23

R.L.KHURANA

body2000
ORDER The petitioner, hereinafter referred to as the accused, stands convicted by the learned Chief Judicial Magistrate, Nahan, for the offences under Ss. 468, 471 and 473, Penal Code, vide judgment dated 20-12-1997 in case No. 33/2 of 1994. Upon such conviction, he has been sentenced to rigorous imprisonment for a period of one year and fine of Rs. 500/- on each of the three counts. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a period of three months on each count. All the three substantive sentences of imprisonment were ordered to run concurrently. 2. The conviction and sentence imposed upon the accused by the learned Magistrate were affirmed in appeal by the learned Additional Sessions Judge, Nahan, on 8-9-1998. 3. Feeling aggrieved, the accused has come up before this Court by virtue of the present revision petition under Ss. 397 and 401, Cr. P.C., assailing the conviction and sentence imposed upon him by the two Courts below. 4. Briefly stated, the prosecution story is this. The accused is a resident of village Baroli in Tehsil Naraingarh, District Ambala (Haryana). He is Balmiki by caste. On 24-8-1993, at about 2.45 p.m., he presented two applications before Shri B. R. Kanundal, Tehsildar, Nahan, for the purpose of obtaining two certificates regarding his being a member of Scheduled Caste and that he is a bona fide resident of Himachal Pradesh. Such applications bore the reports purported to have been made by Ishwar Chand, Patwari, Halqa Maghinand, Tehsil Nahan, certifying that the accused was a member of the Scheduled Caste and a bona fide resident of village Khari, Tehsil Nahan, District Sirmaur (Himachal Pradesh). Shri B. R. Kaundal, Tehsildar, became suspicious as to the genuineness of the said reports purported to have been made by Patwari Ishwar chand. Upon inquiries, the accused informed him that he was a resident of village Baroli in Haryana. 5. Shri B. R. Kaundal, Tehsildar, on finding that the reports purported to have been made by Patwari Ishwar Chand, were forged, made the report to the police, on the basis of which a case came to be registered for the offences under Ss. 420, 465, 468, 471 and 473, Penal Code, at Police Station, Sadar, Nahan, vide FIR No. 161 of 1993 (Ex. PW 7/A). 6. After necessary investigation, the accused was arrested, challaned and sent up for trial. 420, 465, 468, 471 and 473, Penal Code, at Police Station, Sadar, Nahan, vide FIR No. 161 of 1993 (Ex. PW 7/A). 6. After necessary investigation, the accused was arrested, challaned and sent up for trial. The accused was charged for the offences under Ss. 468, 471 and 473, Penal Code, to which he pleaded not guilty. The case of the accused is that of denial simpliciter and false implication on suspicion. 7. The prosecution in support of its case examined eleven witnesses in all. One witness was examined by the accused in defence to show that one person by the name of Ranvir Singh son of Mam Raj, Ramdassia by caste, is residing in village Khari, permanently for the last 15/20 years. 8. On the basis of the evidence coming on record, the accused was convicted and sentenced by the two Courts below as aforesaid. 9. The learned counsel for the accused has contended that on the basis of evidence coming on record, the offences have not been proved against the accused beyond a reasonable doubt and as such the conviction and sentence imposed upon the accused by the two Courts below cannot be sustained. 10. The learned Assistant Advocate-General, on the other hand, has contended that the evidence coming on the record has been rightly and properly appreciated by the two Courts below, while recording the conviction and sentence and that it would not be appropriate for this Court in exercise of revisional powers to reappreciate the evidence and come to its own conclusion as to the guilt or otherwise of the accused. 11. The nature and scope of revisional power of this Court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttumanaillath Jathavedan Namboodiri, (1999) 2 SCC 452 : (1999 Cri LJ 1443). In the said case, the accused therein was convicted and sentenced by the trial Court for the offences under Ss. 406, 468 and 477-A, IPC. The Additional Sessions Judge, on appeal, after re-appraisal of the entire evidence affirmed the conviction and sentence as imposed by the trial Court. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt. 12. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt. 12. It was held by the Supreme Court (1999 Cri LJ 1443 at pp. 1444-45) :- "Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusin that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence........" 13. In view of the above settled position, this Court in exercise of revisional powers cannot re-appreiciate the evidence for taking a view different from the one taken by the two Courts below, unless there is any glaring feature which would otherwise tantamount to gross miscarriage of justice. On scrutiny of the judgments of the two Courts below, this Court is satisfied that the entire evidence stands properly and minutely appreciated by the two Courts below, while recording a findings of guilt against the accused. 14. On scrutiny of the judgments of the two Courts below, this Court is satisfied that the entire evidence stands properly and minutely appreciated by the two Courts below, while recording a findings of guilt against the accused. 14. A contention was raised on behalf of the accused that there has been grave miscarriage of justice inasmuch as the two Courts below have relied upon inadmissible evidence of handwriting expert. According to the learned counsel, the accused was called upon to give his specimen handwriting and signatures before a Sub-Divisional Magistrate during the course of investigation and such specimen handwriting/signature were used for comparison with the disputed handwriting/signatures on Ex. PA and Ex. PB. Such a course is not permissible under S. 73, Evidence Act. In support, the learned counsel placed reliance on the ratio laid down by the Honble Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it has been held :- "The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Shri S. P. Garg, Tehsildar-Executive Magistrate, PW. 13. No enquiry or trial was admittedly pending in the Court of the Tehsildar-Executive Magistrate. The enquiry and trial in this case were pending under TADA before the Designated Court only. The direction given by the Tehsildar-Executive Magistrate Shri S. P. Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by S. 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Executive Magistrate PW 13 to take the specimen writings of the appellant and why the specimen writings were obtained under directions of PW 13 and not of the Designated Court. It is a mystery as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by PW 13, who was not enquiring or trying the case. To a specific question during his cross-examination, PW 13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. To a specific question during his cross-examination, PW 13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which writing of Sukhdev Pual was taken is totally objectionable and against the provisions of S. 73 of the Evidence Act. The Executive Magistrate PW 13 appears to have been too obliging and did not even care to examine the provisions of law before issuing the direction to the appellant. The argument of the learned counsel for the State that since no objection was raised by the appellant when he was called upon to give his specimen writing by PW 13 therefore he cannot be permitted to make a grievance now is only an argument of despair and the silence of the appellant, who admittedly on that day, was not even represented by an advocate, cannot certainly clothe PW 13 with any jurisdiction to issue the directions as envisaged by S. 73 of the Evidence Act. The specimen writing of Sukhdev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and cannot be used against Sukhdeve Paul appellant to connect him with the crime. 15. In the present case, even if the evidence of the handwriting expert is ignored, there is sufficient evidence to show that the applications Ex. PA and PB were made to the Tehsildar (PW 1) for obtaining the requisite certificates and that the reports on the back of these applications are forged and not in the hand of and under the signatures of PW 2 Ishwar Chand, Patwari. 16. The accused in his defence has tried to show that he is a resident of village Khari of Tehsil Nahan, District Sirmaur of Himachal Pradesh. DW 1 Prithi Singh though has stated that a person by the name of Ranvir Singh son of Mam Raj is permanently residing in village Khari for the last 15/20 years, he has not deposed that the accused is the said person. DW 1 Prithi Singh though has stated that a person by the name of Ranvir Singh son of Mam Raj is permanently residing in village Khari for the last 15/20 years, he has not deposed that the accused is the said person. The attempt made by the accused to show that he is resident of village Khari, Tehsil Nahan, is nothing but to show the correctness of the two reports recorded on Ex. PA and PB purported to be made by PW 2. 17. PW 1 Shri B. R. Kaundal, has categorically identified the accused to be the person who had presented the applications Ex. PA and PB before him. Such part of the statement of PW 1 could not be impeached by the accused during the course of cross-examination. 18. On the basis of the evidence coming on the record, the offences stand proved against the accused beyond all reasonable doubts. The accused stands rightly convicted and sentenced by the two Courts below. No interference is called for by this Court. 19. Resultantly, the present petition is dismissed. The accused, who is on bail pursuant to the orders of this Court, is directed to surrender himself to his bail bonds before the learned trial Court within four weeks from today and serve out the sentence imposed upon him. On the failure of the accused to surrender as aforesaid, the learned trial Court shall proceed against him in accordance with law. Petition dismissed.