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Himachal Pradesh High Court · body

2000 DIGILAW 303 (HP)

STATE OF HIMACHAL PRADESH v. MADAN LAI SHARMA

2000-11-22

KAMLESH SHARMA, M.R.VERMA

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JUDGMENT M.R. Verma, J. Oral :- The respondent-accused (hereinafter referred to as the accused) was tried by the learned Additional Chief Judicial Magistrate, Amb on a charge under Sections 409,420,467,468 and 472, Indian Penal code and was acquitted vide judgment dated 24.4.1997. Feeling aggrieved, the State has preferred the present appeal against the said acquittal. 2. The case of the prosecution, in brief, is that the accused was posted as Temple Officer at Chintpurani Temple. On 10.5.1992 one Kundan Lal (PW-15) donated one air cooler to the said temple and in token thereof a receipt was issued to him. After 3-4 month thereof when his son visited the temple, he found that the air cooler had been removed from the temple and accordingly informed PW-15. In turn PW-15 made a complaint Ex.PW-15/A to the Superintendent of Police, Una, who directed investigation into the matter vide his endorsement Exc PW- 17/P by C.I.A. Staff, Una. On the basis of the inquiry conducted in the matter F.I.R. Ex.PW-17/A under Sections 409,420,467,468 and 471, Indian Penal Code, was registered at Police Station, Amb and investigation followed. The receipt Ex.P-9 which was issued to PW-15 about the donation of the air cooler alongwith other record as maintained in the temple was taken in possession. The investigating agency also got the admitted writings and specimen writings of the accused which were sent to the questioned documents expert for opinion, who opined that the receipt Ex.P-9 was in the hand of a person who had written the specimen writings and sample writings i.e. in the handwriting of the accused. On arrest of the accused he made a disclosure statement Ex.PW-1/A on 27.7.1992 that he had kept cooler in question in a coal store and he could get it recovered. Pursuant to the said statement in the presence of PWs Krishan Kalia and Pitamber Raj the accused got the air cooler recovered from a store room, the key whereof was with Sudershan Kumar (PW-2). It was also found that the accused had forged the receipt Ex.P-9 and removed the air cooler to Hamirpur with dishonest intention. On being satisfied of the commission of the offences alleged to have been committed by the accused, the Officer-in-Charge, Police Station, Amb, submitted a charge-sheet against the accused. To prove the charge against the accused the prosecution examined as many as 23 witnesses. On being satisfied of the commission of the offences alleged to have been committed by the accused, the Officer-in-Charge, Police Station, Amb, submitted a charge-sheet against the accused. To prove the charge against the accused the prosecution examined as many as 23 witnesses. The accused was examined under Section 313, Code of Criminal Procedure, wherein he denied the prosecution-case and claimed that the Police officials were biased against him as during his tenure as a Temple Officer he could not provide them proper accommodation in the temple premises as and when they were being deputed on temporary duty therein. 3. We have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have also gone through the records. 4. Be it stated at the very outset that it is not in dispute that the accused at the relevant time was holding the post of Tehsildar though working as Temple Officer on deputation, therefore to prosecute him, the sanction of the appropriate authority i.e. the Financial Commissioner (Revenue) was required which was accorded by him vide Ex.PW-1 I/A and he has been examined as PW-11. In his cross- examination PW-11 has stated that he had given sanction as it’ was wanted by the police. He has further stated that for such type of minor matter accused should not have been prosecuted. These admissions of the sanctioning authority, the Financial Commissioner (Revenue) simply mean that he had not granted the sanction to prosecute the accused after due applicaton of mind but simply because it was required by the police. Otherwise as per his view expressed on oath the accused should not have been prosecuted in this case. 5. The object of making provisions for sanction to prosecute a public servant is that the authority giving the sanction should be able to consider the evidence before it to come to a conclusion whether in the given circumstances the prosecution be sanctioned or forbidden. It should be clearly and unambiguously established that the sanctioning authority considered the evidence before it can after due consideration of all the circumstances sanctioned the prosecution. It should be clearly and unambiguously established that the sanctioning authority considered the evidence before it can after due consideration of all the circumstances sanctioned the prosecution. Where the sanctioning authority itself opines on oath that the case brought before it for sanctioning prosecution was not worth it, the sanction accorded by the apparently will be rendered as having been accorded without due application of mind and contrary to its conclusion based on the facts and circumstances of the case. In such matters it must be remembered by the sanctioning authorities that it is essential that persons charged with responsible duties of granting sanction which is a duty of deciding whether or not the credit and reputation of another citizen should be put in peril by sanctioning a criminal prosecution, therefore, they should bring to discharge of their duty essence of responsibility, industry, fairness and independence and sanction should not be accorded simply because it is so desired by an agency whatsoever it may be. In view of the aforesaid admissions of the sanctioning authority in this case the alleged sanction to prosecute the accused cannot be said to be legal and valid sanction. 6. In view of the aforesaid circumstances and the position in law there being no legal and valid sanction to prosecute the accused, the case against him must fail on this ground alone. 7 Even on merits the charge against the accused is far from being proved and he has been rightly acquitted by the learned trial Magistrate. There is no evidence whatsoever on the record that the accused with dishonest intention removed the air cooler from the temple to Hamirpur as is the case of the prosecution. The place of recovery is admittedly a store hired by the temple to which the air cooler was donated for stacking its articles. It is clearly established on record particularly in view of the statement of PW-2 Sudershan Kumar that the store from-where the air cooler has been recovered has been given by-him to the Temple Trust for use and the temple peoplp store their material/articles therein. It is the case of the prosecution itself that before the recovery the store was got opened from PW-2 Sundershan Kumar and the keys of the store were also with him. 8. It is the case of the prosecution itself that before the recovery the store was got opened from PW-2 Sundershan Kumar and the keys of the store were also with him. 8. The only incriminating piece of evidence against the accused, which the prosecution has been able to bring on record is the opinion given by PW-20 Dr. B.R. Sharma that the questioned document Ex.P-9 i.e. the receipt regarding donation of the air cooler to the temple excluding the signatures thereon is in the handwriting of the accused. There is no other corroborative evidence in the form of statements of those who might have seen the accused writing and signing . There is clinching evidence on record that the receipt regarding such donations were not issued by the Temple Officer, but the Clerical Staff. Even the holder of the receipt Ex.P-9 has stated that such receipt was not given to him by the accused. Thus, the question which arises for determination is whether on the basis of the aforesaid opinion the accused could be held guilty of the charge framed against him. 9. It was contended by the learned Additional Advocate General that the opinion of the handwriting expert that receipt Ex.P-9 is in the handwriting of the accused is a very strong circumstance which can be relied to hold the charge against the accused proved and he could have been convicted and sentenced accordingly. 10. It cannot be disputed that opinion evidence, though relevant, is not substantive evidence but only a piece of evidence which a judge of fact will have to consider alongwith other pieces of evidence. Expert evidence can never be conclusive and cannot be taken for granted and it has been settled view that it is not safe to base a conviction on the un-coroborated testimony of a handwriting expert. 11. In Ishwari Prasad Misra v. Mohammad Isa AIR 1963 SC 1728 the Apex Court held that evidence given by expert of handwriting can never be conclusive, because it is, after all, opinion evidence. 12. In Shashi KumarBanerjee & Ors. v. Subodh KumarBanerjee through legal representatives & Ors., AIR 1964 SC 529, the Apex Court even in a civil matter held that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. 12. In Shashi KumarBanerjee & Ors. v. Subodh KumarBanerjee through legal representatives & Ors., AIR 1964 SC 529, the Apex Court even in a civil matter held that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. M 13. In Magan Bihari Lal v. The State of Punjab AIR 1977 SC 1091 the Honble Supreme Court held that it is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is un-safe to base a conviction solely on the expert opinion without substantial corroboraton. This rule has been universally accepted and has almost become rule of law. It was further held that there can be no doubt that such evidence being opinion evidence is by its very nature, weak and infirm and cannot of itself from the basis for a conviction. 14. In the case in hand as already stated hereinabove, there is no other evidence either direct or circumstantial to suggest involvement of the accused in the commission of the offences alleged to have been committed by him and in view of the above settled position of law, the bare opinion of the handwriting expert as given in this case cannot be made basis for convicting the accused. 15. In view of the above discussion and reasons we are of the view that the prosecution has failed to prove the charge against the accused and he has rightly been acquitted by the learned trial Magistrate, therefore, the impugned acquittal does not call for any interference. 16. As a result, this appeal merits dismissal and is accordingly, dismissed. The bail bonds furnished by the accused are discharged.