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2000 DIGILAW 26 (JK)

Roshan Singh v. State

2000-02-28

T.S.DOABIA

body2000
1. The appellant stands convicted under section 5(2) of prevention of corruption act read with section 468 of the penal code this conviction arose out of two 1st information reports having been registered with the police authorities. As both the offences were commuted within a period of one year the charges were consolidated and single punishment came to be awarded. Now two appeals have been preferred. 2. The prosecution case was that to those persons who become refugees from Chamb sector some reliefs were to be provided by the government of Jammu and Kashmir. The Government had issued an order to the effect that civil and army employees who are owners of two or more acres of land and became refugees and fell within the definition of term "Chamb refugees" would be entitled to allotment of land and also to cash relief. This relief was to be granted by the rehabilitation department. There was a further stipulation that this relief was to be granted to only those chamb refugees who were agriculturists. 3. The prosecution story is that one Roshan LaL S/o Isher Dass resident of Neetar pal and Devi Dayal resident of Village Chalkla, preferred applications before the relief & rehabilitation officer. They were seeking allotment of land and also for the grant of cash reliefs. These applications came to be rejected. This was on the ground that these two persons were found to be non agriculturists. After this rejection the appellant said to have forged revenue record. It is stated that fraud tagurat (Sic) was forged in favour of Roshan Lal and Devi Dayal. On the basis of these forged documents the aforementioned two persons made applications for seeking relief from the rehabilitation department. It is alleged that orders were in fact passed on the basis of forged revenue record in favour of Roshan Lal and Devi Dayal. They were treated as agriculturists. It is alleged that not only there was a proposal to make allotments of land but sanction was also accorded for giving cash relief the prosecution case was tha the appellant redividced illegal gratification to the extent of Rs. 300/ - from Roshan Lal and rs. 10/- (Sic) it was on account of this factor fraud tagurat of 1986 was prepared by the patwari by the name of Harbans Lal. This patwari had stated that these entries were forged but were not in his handwriting. 300/ - from Roshan Lal and rs. 10/- (Sic) it was on account of this factor fraud tagurat of 1986 was prepared by the patwari by the name of Harbans Lal. This patwari had stated that these entries were forged but were not in his handwriting. At the same time of trial the admitted handwriting and questioned writing were sent to hand writing expert namely R.L.Dhar this expert has given an opinion that two writings were of the same person. 4. At the same time of trial the appellant was called upon to face trial under section 5(2) of Prevention of Corruption Act 467,468. 420 and 120-b of penal code, as indicated above the appellant was convicted only under section 5(2} of prevention of corruption act and section 468 of the penal code. 5. With a view to sustain the charge of conspiracy role was also attributed to appellant Roshan lal Suraj Prakash -Tehsildar and Dwarika Nath-Additional Tehsildar (Sic) to above are concerned, they were discharged as evidence was not available against them. So for as Roshan Lal is concerned he died during the pendency of trial. It was in these circumstances the appellants alone was called upon to face trial. 6. As indicated above the prosecution case was that the appellant prepared forged document indicating that Roshan Lal and Devi Dayal were agriculturists both the cases were consolidated and trial concluded in the manner indicated above. The evidence which has come on the record be noticed. One Gurdev Singh appeared as prosecution witness. He was Resettlement Officer he stated that in respect of both events applications were presented and one Guddi Devi wife of Roshan Lal and Devi Dayal were held to be non agriculturists. Later on review was sought. This was on the basis of attested copies of fraud tagurat. Roshan Lal and Devi Dayal were held to be agriculturists enabling them to seek allotment of Land and cash reliefs . Later on it transpired that these documents were forged as a consequence of this the benefits which were given to Roshan Lal and Devi Daval were withdrawn.Kiisturi LalTehsildar is another prosecution witness. He stated that in the case of Devi Dayal his applicaiion was sent for inquiry, He could not substantiate his claim. He was found to be non agriculturists. Later on it transpired that these documents were forged as a consequence of this the benefits which were given to Roshan Lal and Devi Daval were withdrawn.Kiisturi LalTehsildar is another prosecution witness. He stated that in the case of Devi Dayal his applicaiion was sent for inquiry, He could not substantiate his claim. He was found to be non agriculturists. Som Nath is the another prosecution witness he was project officer at Jammu he stilled that he had enquired as to the status of applicant Guddi Devi. She Iiad failed lo substantiate her claim as agriculturist and her claim was rejected, Harbans Lal pat war i appeared in the witness box he stated that fraud lag-unit for the year 1968 in respect of land in question was prepared. This was for two villages namely Ncelar Paland Chakla entries in respect of survey nos. 1243 and 458 were made, but he slated that these are not in this hand writing. According to him all other entries were made by him. Devi dayal PW is the another prosecution witness who stated that he was not given any copy of revenue record by the department this witness was declared hostile , Jagdev singh is yet another prosecution witness he was girdawar halqa chakla and Nectar Pal. He deposed that fraud tagurat in respect of both these villages were got prepared by harbans lal , patwari, This witness was declared hostile. In cross examination by the prosecution he admitted that entries in respect of survey no 1243 village chakla and survey no 458 of village Nectar Pal appear to have been forged. He however staled that these entries were neither in his hand writing nor in the handwriting of Harbans Lal. Palwari.PW Bhola Ram is a formal witness to the seizure of revenue record namely one register. R.L. Dhar is the hand wriling expert. He has given his opinion that the questioned documents and the admitted hand writing are the hand writings of the same person. It is basically on the basis of opinion furnished by the expert a judgment of conviction stands released as to whether this can be relied upon and how much reliance can be placed upon the opinion of expert is a matter which would be considered in the later part of this judgment. It is basically on the basis of opinion furnished by the expert a judgment of conviction stands released as to whether this can be relied upon and how much reliance can be placed upon the opinion of expert is a matter which would be considered in the later part of this judgment. Thus the basic question which required to be gone into is whether the appellant was The author of record whereby two persons namely Roshan Lal and Devi Dayal were shown to be agriculturists. Evidence in this regard is that the record was prepared by Harbans Lal Patwari, but with regard to entries qua survey nos. 1243 and 458 he stated that these entries are not in his hand writing. Jagdev Singh did not support the case of prosecution. It was precisely for this reason the trial court placed reliance on the statement of expert. It is the opinion of expert which is the subject matter of criticism on the part of learned counsel for appellant. It is submitted that if the statement of appellant made under section 342 of the code of criminal procedure is taken note of .then it becomes apparent that he had prepared some copies from the original record. His case was that the original record indicates that Roshan Lal and Devi Dayal were agriculturists and it was on this bases corresponding entries were made in the revenue record. According to him what was sent to the expert was not the original record but the carbon copies. It was the entries that exhibits Q. 1 &Q2 which arc subject matter of serious consideration. According to the appellant the opinion given by the expert on the basis of carbon copy of the record could not be relied upon. It is also urged that original record should have been sent to the expert. This having not been done the opinion of expert cannot be given much credence, On 6th march 2002 when the appeal was heard following interim order was passed. " Learned counsel for both sides shall furnish in legible hand as to what entries were the subject matter of the opinion by the expert. This course has been adopted as both sides agree that the entries regarding which the opinion has been expressed are in pencil and the present state of affair of the records is such that some of the entries are not decipherable. This course has been adopted as both sides agree that the entries regarding which the opinion has been expressed are in pencil and the present state of affair of the records is such that some of the entries are not decipherable. 1st the record be examined and what is contained therein be furnished by 13.3.2002 otherwise argument heard judgment reserved. File sent to the registrar (judicial)" The perusal of record does indicate that what was sent to the handwriting expert are carbon copies. These entries as both sides agreed were not legible. If this be the situation then would it be sale to sustain conviction of appellant. This aspect of the matter has been considered. The Calcutta High Court in the case reported as Nityan Anand Roy Vs Rash behari Roy AIR 1953 Calcutta 456 has expressed an opinion that opinion given by the handwriting expert on the basis of carbon copy of record should not be relied upon. What is said is quoted as under. "The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance serve a notice upon the party in whose possession the original may be requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises. There are certain exceptions to the rule laid down in S. 66. but it is perfectly clear that none of them applies to the present case. It is equally clear from the records that no notice of any kind was ever served on the petitioner. In those circumstances it follows that the carbon copy of the signature appearing on Ex. 1. never become admissible in law and in so far as the learned magistrates conclusion is based upon Ex. 1, it is plainly erroneous." It was further observed: "It was also contended before the learned Magistrate that if the signature appearing on Ex.1 was to be listed upon the petitioner it could be done only if proper comparison of that signature with the admitted signatures of the petitioner was possible. No such comparison was however was possible in the present case in as much as the disputed signatures was only a carbon copy. It was argued that no opinion about pen pressure or pen stroke or alignment could properly be formed upon a carbon copy. No such comparison was however was possible in the present case in as much as the disputed signatures was only a carbon copy. It was argued that no opinion about pen pressure or pen stroke or alignment could properly be formed upon a carbon copy. The learned Magistrate dealing with that argument simply observed that he did not know if there was any authority for that proposition. If he did not know he might have referred to some authoritative work like Osborn or Brew-ester and if he did so. he would have found that carbon copies particularly copies made on carbon paper ordinarily used in this country could not generally be relied upon for purpose of comparison because the impression made upon such carbon paper was generally irregular and blotched. 8. As indicated above Jagdesh singh girdawar stated that the record in question was prepared by Harbans Lal Patwari in the year 1968. Harbans Lal Patwari has stated that this record is not in his handwriting. Therefore the question arises as to who is the author of entries which are not in the handwriting of harbans lal. As indicated above in this situation this court is left with the opinion of forsenic expert. This opinion as indicated above has been given on the basis of carbon copy of the record. This record was not legible. The carbon copy contains impression of the carbon also. Carbon ink stands spread. The (Sic) impressions are as observed by the Calcutta High Court "irregular and blotched" In the face of this situation and in view of the opinion expressed by the High Court it would not be safe to rely upon the statement of expert. Once this conclusion is arrived at then the appellant does become entitled to benefit of doubt. He is allowed benefit of doubt. Long pendency of trial since 1976 is thus concluded. The appeals are accordingly allowed . The conviction recorded is set aside.