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2009 DIGILAW 1003 (BOM)

State of Maharashtra v. Pundlik Pandurang Biradar

2009-08-13

V.R.KINGAONKAR

body2009
JUDGMENT : Oral Judgment: 1. Challenge in this appeal is to judgment rendered by learned Judicial Magistrate (F.C.), Udgir, in a Criminal Case bearing (RCC No. 16/1989), whereby the Respondents have been acquitted of the charge for offences punishable U/ss 420, 467 read with Section 34 of the I.P.C. 2. The background facts leading to the prosecution may be stated in the following way: Complainant P.W. Shrimant Tulshiram Biradar owned an agricultural land bearing S.No. 55/2 admeasuring one (1) hectare 21 (twenty one) Ares situated at village Chavan Hipparga. He had purchased the said agricultural land by virtue of a registered sale-deed executed by its previous owner by name Shripat Daulat Biradar. The Respondent No.1 (Maroti) is the son of his vendor i.e. Shripati Biradar. The sale transaction had taken place in the year 1985 and name of the complainant (P.W. Shrimant Biradar) was recorded in the concerned revenue record as the owner thereof. On 10.2.1988, he learnt from the village Talathi that the Respondent No.1 had obtained a sale deed in respect of his land. He, therefore, obtained a certified copy of the said sale deed dated 30.12.1987, purportedly executed in favour of the Respondent No.1 - Pundlik. He noticed that the sale deed was attested by the Respondent Nos.2 and 3 as attesting witnesses and in his place some one else had signed it as the executant of the sale deed. He noticed that the sale deed was executed by impersonating himself though he never had executed that sale deed in favour of the Respondent No.1. He immediately lodged a report at Deoni Police Station about forgery of the sale deed by impersonation and cheating committed by the culprits. The Police investigation revealed that the sale deed in question was executed by the Respondent No.4 -Maroti, who impersonated himself as complainant - P.W. Shrimant Biradar. The Police Investigation revealed that the sale deed was brought about by the Respondent Nos.1 to 4 in connivance with each other with a view to cause wrongful loss to the complainant P.W. Shrimant Biradar. The Investigating Officer had referred the original sale deed dated 30.12.1987 along with specimen signatures of the complainant P.W. Shrimant, as well as that of the Respondent for opinion of the State handwriting expert. The Investigating Officer had referred the original sale deed dated 30.12.1987 along with specimen signatures of the complainant P.W. Shrimant, as well as that of the Respondent for opinion of the State handwriting expert. The handwriting expert reported that signature on the sale deed as executant was not that of complainant P.W. Shrimant and it was similar to the signature of the Respondent No.4 Maroti. On the basis of material gathered during course of investigation, the Respondents were charge-sheeted for commission of offences punishable U/s 420, 467 read with Section 34 of the I.P.C. 3. At the trial, the prosecution examined in all six (6) witnesses in support of its case. The learned Judicial Magistrate, held that the evidence produced on record was insufficient to infer forgery of the sale-deed in question and particularly by the Respondent Nos.1 to 4 in furtherance of their common intention. The learned Judicial Magistrate held that the opinion of the handwriting expert was not reliable in order to positively hold that the Respondent No.4 -Maroti signed the sale deed in question and thereby impersonated the complainant-P.W. Shrmant Biradar. The learned Magistrate, held that opinion of the handwriting viz; P.W. Mr.Jadhav, could not be regarded as conclusive proof of the forgery in question. He noticed that P.W.4 Babu, who acted as panch witness of panchanama (Exh. 92), was unable to locate the nature of recitals thereof. The learned Judicial Magistrate extended benefit of doubt to the Respondents and acquitted them. 4. Feeling aggrieved, the State has come up in appeal. 5. Heard Mr.K.S. Patil, learned A.P.P. for the State-appellant and Mr.S.S.Chillarge, learned advocate for the Respondent No.1. Though served, the Respondent Nos.2 to 4 did not appear in this Court. 6. Before I proceed to embark upon scrutiny of the prosecution evidence, let it be noted that there is no dispute about the fact that in 1985, complainant P.W. Shrimant Biradar obtained a registered sale-deed in respect of the land in question from father of the Respondent No.1. His name was recorded in the concerned 7/12 record as owner of the said land. There is also no dispute about the fact that on 30.12.1987, the disputed sale deed (Exh.44) was executed in the office of Sub-Registrar, Udgir and the same is attested by the Respondent Nos.2 and 3 as attesting witnesses. His name was recorded in the concerned 7/12 record as owner of the said land. There is also no dispute about the fact that on 30.12.1987, the disputed sale deed (Exh.44) was executed in the office of Sub-Registrar, Udgir and the same is attested by the Respondent Nos.2 and 3 as attesting witnesses. The endorsement on the sale-deed purports to show that the Respondent No.1 Pundlik had produced the sale-deed (Exh.114) before Sub-Registrar for purpose of registration. The endorsement of the Sub- Registrar is a part of public document though the sale-deed is a private document. The Respondent No.1 did not controvert the fact that he has signed the disputed sale-deed (Exh.114) as a purchaser. The Respondent Nos.2 and 3 also did not dispute their signatures as attesting witnesses of the sale-deed. Needless to say, the signatures of the Respondent Nos.1 to 3 on the disputed sale-deed (Exh.114) are admittedly genuine signatures. The fact finding is, therefore, required to be focused only on the issue of impersonation of the complainant-P.W. Shrimant as the executant of the sale-deed and to see whether it is proved that the Respondent No.4 was the impersonator. 7. Coming to the version of P.W.1 Shrimant, it may be gathered that he deposed about his earlier purchase of the land in question from Shripati Daulat Biradar i.e. father of the Respondent No.4 under a sale-deed executed in the year 1985. He produced copy of 7/12 extract (Exh.53) in support of his contention regarding the mutation entry standing in his name as owner and possessor of the said land. He deposed that in the year 1987, the Respondent No. 1 Pundlik got executed a bogus sale-deed in respect of his land by impersonating himself as executant of the sale-deed. His version purports to show that the Respondent Nos.2 and 3 signed the said sale-deed as attesting witnesses thereof. He categorically states that the Respondent Nos.2 and 3 identified such bogus executant as vendor in his place. He further deposed that the Respondent No.4 Maroti impersonated himself as the vendor i.e. himself being complainant P.W. Shrimant Biradar. He corroborated the FIR (Exh.54). His version reveals that he did not sign the sale-deed dated 30.12.1987 (Exh.114). His version reveals that all the Respondents were knowing the fact that he had purchased the land S.No.55/2 from father of the Respondent No.4 i.e. Shripati Daulat Biradar in the year 1985. He corroborated the FIR (Exh.54). His version reveals that he did not sign the sale-deed dated 30.12.1987 (Exh.114). His version reveals that all the Respondents were knowing the fact that he had purchased the land S.No.55/2 from father of the Respondent No.4 i.e. Shripati Daulat Biradar in the year 1985. His cross-examination reveals that the land in question was previously owned by said Shripati who is uncle of Respondent No.1 Pundlik. It was suggested to him that the Respondent No.1 -Pundlik obtained a loan amount of Rs.16,000/-(Rupees sixteen thousand) from him and, therefore, the sale deed was executed in his favour by way of security for repayment of the loan. The Respondent Nos.1 and 4 are admittedly his cousins. He denied the suggestion that they were interveners in respect of the loan transaction between himself and the Respondent No.1. He denied the suggestion that he reexecuted the sale deed on repayment of the amount of loan by the Respondent No.1 and the sale-deed in question (Exh.114) is genuine document signed by him as an executant. It was suggested to him that he had purchased the non-judicial stamp paper for execution of the sale-deed dated 30.12.1987. Needless to say, the defence of the Respondents was that the sale-deed is genuine document executed by the complainant himself. 8. At this juncture, it may be mentioned that there is absolutely no evidence on record to show that the disputed sale-deed (Exh.114) bears signature of complainant P.W.Shrimant Biradar as an executant. He had no business to lodge FIR (Exh.54) if he himself was the executant of the said sale-deed. The Respondent did not make any attempt to obtain opinion of handwriting expert so as to demonstrate that the disputed sale-deed dated 30.12.1987 is really signed by the complainant - P.W. Shrimant Biradar. He categorically denied his signature on the said sale-deed. A comparison of his signature on the FIR and signature on the disputed sale-deed (Exh. 114) also would make it clear that he is not the signatory of the said sale-deed as an executant thereof. 9. This takes me to the testimony of P.W. 2 Kashinath Jadhav. He is handwriting and finger print expert attached to the Finger Print Bureau as State Examiner of such disputed documents. 114) also would make it clear that he is not the signatory of the said sale-deed as an executant thereof. 9. This takes me to the testimony of P.W. 2 Kashinath Jadhav. He is handwriting and finger print expert attached to the Finger Print Bureau as State Examiner of such disputed documents. His version purports to show that the P.S.O. of Deoni Police Station had forwarded the disputed sale deed (Exh.114) and specimen thumb impressions to him for comparison and opinion. His version purports to show that the left hand thumb impression of Shrimant was marked as A-(L). The thumb impression of the Respondent No.4 Maroti was at Exh.E. The disputed document (Exh.A) indicated that the thumb impression of the executant thereon was identical with the left hand thumb impression print mark as Z-(L) which was purportedly of the Respondent No.4 Maroti Shripati Biradar. His version reveals that the other thumb impressions did not tally with the thumb impression at Exh.A. Thus, opinion of the handwriting expert corroborates the fact that the Respondent No.4 executed the said sale deed impersonating himself as Shrimant Biradar. The handwriting expert gave his opinion (Exh.68). The Director of Finger Print Bureau also recorded the opinion vide Exh.69. The signature of the Director Shri N.B.Bande, was identified by P.W. Kashinath Jadhav. The learned Judicial Magistrate accepted opinion of the handwriting expert that the thumb impressions of the two persons can not be identical. However, the learned Magistrate came to the conclusion that version of P.W. Shri Kashinath is insufficient to attribute authorship of the disputed thumb impression to the Respondent No.4. He gave much importance to the fact when the documents were received by P.W. Kashinath then they were not in sealed condition. The learned Magistrate, however, failed to notice that the said documents were not directly received by the handwriting expert. He had received the same from the Director of Finger Prints Bureau, namely, Shri N.B.Bande. It is obvious that the envelope was already opened by the Director before the said documents were forwarded to P.W. Shri Kashiath Jadhav. The cross-examination of P.W.Kashinath Jadhav, does not bring about any tangible material on surface of record, which could be sufficient to dislodge his opinion. 10. The learned Judicial Magistrate observed that the enlargement of the photographs of the thumb impression were not made by P.W.Kashinath and, therefore, his opinion is not authentic. The cross-examination of P.W.Kashinath Jadhav, does not bring about any tangible material on surface of record, which could be sufficient to dislodge his opinion. 10. The learned Judicial Magistrate observed that the enlargement of the photographs of the thumb impression were not made by P.W.Kashinath and, therefore, his opinion is not authentic. One can not be oblivious of the fact that the process of enlargement of such photographs is carried out in the discharge of official duty by the concerned staff members of the Finger Print Bureau. Unless there is some reliable material on record to infer manipulation committed by such staff member, the opinion of the handwriting expert can not be discarded for such a trivial reason. The learned Judicial Magistrate further dislodged the opinion of the handwriting expert on the ground that P.W.4 Babu failed to corroborate the case of prosecution as regards collecting of the thumb impression of the Respondents during course of the investigation under panchanama (Exh.92). It may be so. There was no reason to disbelieve version of P.W.6 H.C. Devidas Mali in this context. He categorically stated that he obtained finger print impressions of complainant P.W.Shrimant and the Respondents. He corroborated panchanama (Exh.92). Nothing of much importance could be gathered from his cross-examination. The antipathy of P.W.Babu by itself could not be a sufficient reason to discard the prosecution version about the procedure adopted during the course of the investigation for the purpose of obtaining thumb impressions of the Respondents and that of the complainant. 11. The prosecution examined P.W.Dinkar Bhosale, as another handwriting expert. He, however, expressed opinion that he was unable to give definite opinion as regards identity of the disputed thumb impressions on comparing the same with the other specimen, for want of sufficient identifying characteristics. The learned Judicial Magistrate gave much significance to his version. His version reveals that the enlargement of the photographs were required for the purpose of comparison and, therefore, he forwarded the negatives to the Finger Print Bureau along with the covering letter dated 10.1.1989 (Exh.67). He admits, unequivocally, that he was handwriting expert but did not know anything about the science of finger prints. Under these circumstances, his version is not of any probative value. The learned Judicial Magistrate should not have attributed much importance to his version. 12. He admits, unequivocally, that he was handwriting expert but did not know anything about the science of finger prints. Under these circumstances, his version is not of any probative value. The learned Judicial Magistrate should not have attributed much importance to his version. 12. Though P.W.5 Madhav was declared hostile and did not corroborate the panchanama (Exh.92), yet, the version of Head Constable P.W. Devidas is sufficient to infer that the thumb impressions of the Respondent Nos.l to 4 and also that of the complainant were obtained by him. The specimen thumb impressions and signatures were obtained as shown under the panchanama (Exh. 92). The version of P.W. Head Constable Devidas reveals that he was knowing the Respondents prior to registration of the offence because they are inhabitants of the village situated within jurisdiction of the Police Station under which he was working. 13. So far as opinion of the handwriting expert is concerned, the Apex Court in "Murarilal Vs. State of M.P." (AIR 1980 Supreme Court 531), held that it is not always necessary that opinion evidence of handwriting expert would require corroboration. The Apex Court observed: "There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -the equality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted." 14. The learned Judicial Magistrate committed patent error while rejecting the opinion of the handwriting expert. There is no justification to buttress the conclusion that the thumb impression of the Respondent NO.4 was not identical to that of the thumb impression of the executant on the sale sale-deed in question (Exh. 114). It is contended that there was delay in lodging the F.I.R. This is not an usual case in which the question of delay is of significance. The recitals of the FIR would show that complainant P.W. Shrimant received information from the village Talathi on 10.2.1988 and thereafter immediately obtained a copy of the sale-deed. He thereafter lodged the FIR on 10.12.1988. Thus, he immediately acted upon such information, got verified the fact that a bogus sale-deed was brought about and thereafter lodged the FIR (Exh.54). What emerges from the record is that complainant P.W. Shrimant got executed the sale-deed from father of the Respondent No.4 - Maroti. It is probable that the Respondent No. 1 was demanding the reconveyance but complainant P.W. Shrimant had declined to execute the reconveyance deed. Thereafter, the Respondent Nos.1 to 4 manipulated a false and fabricated sale-deed which was executed by the Respondent No.4 Maroti by impersonation of the complainant -P.W. Shrimant. The attesting witnesses are inhabitants of the same village i.e. Chavan Hipparga. The Respondent No.2 Vasant is cousin of the Respondent No.4 Maroti. It is amply clear that both the attesting witness were knowing that the executant of the sale-deed dated 30.12.1987 was not the complainant P.W. Shrimant but he was the Respondent No.4 Maroti. They can not escape the liability from the Criminal charge. The Respondent No.2 Vasant is cousin of the Respondent No.4 Maroti. It is amply clear that both the attesting witness were knowing that the executant of the sale-deed dated 30.12.1987 was not the complainant P.W. Shrimant but he was the Respondent No.4 Maroti. They can not escape the liability from the Criminal charge. They have not at all explained anything to show their bonafides. 15. For the reasons aforestated, I am of the opinion that the impugned judgment of acquittal is unsustainable. The proved facts would establish that the Respondent Nos.1 to 4 acted in furtherance of their common intention so as to bring about forged sale-deed dated 30.12.1987 (Exh.114). The Respondent Nos.1 to 4 have thereby committed offence punishable U/s 419 of the I.P. Code, inasmuch as the complainant was impersonated as executant of the disputed sale-deed which was brought about in order to cheat him. They are also liable for conviction for offence U/s 468 of the I.P.Code, inasmuch as they committed the offence of forgery in respect of the said sale-deed for the purpose of cheating the complainant in order to dishonestly deprive him of the agricultural land in question. The Respondent Nos.1 to 4 are thus found guilty of the charges for offences punishable U/ss 419 and 468 read with Section 34 of the I.P.Code. 16. In the result, the appeal is allowed. The Respondent Nos.1 to 4 are convicted for offence punishable U/s 419 read with Section 34 of the I.P.C. and are sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs.10,000/- (Rupees ten thousand) each, in default to suffer rigorous imprisonment for one (1) year. They are also convicted for the offence punishable U/s 468 of the I.P.C. and each of them is sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs.10,000/- (Rupees ten thousand), in default to suffer rigorous imprisonment for one year. The substantive sentences shall run concurrently. The Respondent Nos.1 to 4 shall surrender before the learned Judicial Magistrate, Udgir, immediately, otherwise the learned Judicial Magistrate shall immediately issue the arrest warrants and comply with the present order and give report to this Court within four (4) weeks about such compliance.