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2009 DIGILAW 2140 (PNJ)

Budh Ram v. State Of Haryana

2009-12-09

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This judgment shall dispose of Criminal Revision No. 2800 of 2009, filed by Budh Ram and another and Criminal Revision No. 2953 of 2009, filed by Karam Singh, accused/revision-petitioners, against the judgment dated 30.09.2009, rendered by the Court of Additional Sessions Judge, Panchkula, Haryana, vide which it partly accepted and partly dismissed the appeal against the judgment of conviction dated 27.02.2007 and the order of sentence dated 28.02.2007, convicting them for the offences, punishable under Sections 419, 467, 420,468 and 120-B of the Indian Penal Code and awarding them sentence. 2. The facts, in brief are that Satya Parkash and Barkha Ram sons of Phagu Ram, rs/o village Hangoli are agriculturists. Their grand-father Malagarh had four brothers. Inder Ram, brother of their grandfather, was having two sons and grand daughters, who were owners of half share of the total land, measuring 82 kanals 10 marlas. The complainants claimed that they were cultivating their own land and also the land of Inder Ram. It was stated that Malagarh, their grandfather, had mortgaged his one acre of land with his brother. After the death of Inder, his property devolved on Banarsi. It was further stated that after the death of Banarsi, the land was inherited by his wife Ram Piari, his sons Muni Ram and Ravi Chand, and daughter Bimla Devi. It was further stated that the plaintiffs wanted to re-deem it, after paying the mortgage money, but they couid not trace the real owners. It was further stated that munadi was effected. Notice was published, in the newspaper, but Ram Piari, Muni Lal, Ravi Chand and Bimla Devi, could not be located, as Inder was serving at some unknown place. The complainants deposited mortgage money, in the treasury, and got a conveyance deed executed, in their favour. It was further stated that on 16.06.1996, the complainants came to know that Babu Ram son of Karta Ram r/o Hangoli, and Kulwant Singh r/o Mani Majra, Chandigarh, got the sale deeds of 18 kanals and 23 kanais of land respectively, executed in their favour. The complainants, on enquiry, found that the sale deeds were got forged in connivance with the Sarpanch of Hangoli, Budh Ram son of Karta Ram, Rameshwar Namberdar, Karam Singh r/o Mani Majra, Ram Pal r/o Raipur Rani and Sham Lal, r/o Hangoli, by putting up impostors. The complainants, on enquiry, found that the sale deeds were got forged in connivance with the Sarpanch of Hangoli, Budh Ram son of Karta Ram, Rameshwar Namberdar, Karam Singh r/o Mani Majra, Ram Pal r/o Raipur Rani and Sham Lal, r/o Hangoli, by putting up impostors. It was further stated that they also made false identification of the vendors namely Muni Lal, Ravi Chand and Bimla Devi. It was further stated that the complainants made an application to the Tehsildar, Raipur Rani, for action in the matter. It was further stated that, on the basis of written complaint, made by the complainants, FIR was got registered. The matter was investigated. During the course of investigation, the land was taken into possession. Dhani Devi wife of Multan Singh r/o Hangoli, who impersonated as Bimla, Budh Ram son of Karta, r/o Shajhanpur, Babu Ram s/o Karta Ram r/o Hangoli, Sham Lal s/o Rattan Lal, r/o Hangoli, Rameshwar s/o Banarsi Dass, r/o Narainpur and Ram Pal s/o Padam Singh, r/o Raipur Rani, were arrested in this case, for getting forged the sale deeds, in respect of land of Muni Lal, Ravi Chand and Bimla Devi. It was further stated that Kulwant Singh son of Ujagar Singh r/o Mani Majra sold the property. Karam Singh s/o Narinder r/o Manl Majra, attested the said sale deed, as a witness. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court the accused were supplied the copies of documents, relied upon by the prosecution/Charge under Sections 419,420,467,468 and 120-B of the Indian Penal Code, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined, Basheshar, Ex-Sarpanch, (PW1), Raj Kumar, (PW2), Pawan Kumar, (PW3), Harpal Registration Clerk, (PW4) Sat Parkash, complainant, (PW5), Om Parkash, Inspector (Retd.), (PW6), Barkha Ram, (PW7) and Jagmal Inspector (Retd.) (PW8). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C, were recorded. They were put all the incriminating circumstances, appearing, against them, in the prosecution evidence. It was further stated by them, that they were falsely implicated, in the instant case. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 7. They were put all the incriminating circumstances, appearing, against them, in the prosecution evidence. It was further stated by them, that they were falsely implicated, in the instant case. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, an appeal was preferred by the appellants, which was partly accepted and party dismissed by the Court of Additional Sessions Judge, Panchkula, Haryana, vide its judgment dated 30.09.2009. 8. Still feeling dis-satisfied, the instant CrI. Revision Petitions, have been filed by the revision petitioners/accused. 9. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 10. The Counsel for the revision-petitioners, submitted that the original sale deeds, which were allegedly forged, did not see the light of the day. They further submitted that, in the absence of production of the original sale deeds, it could not be said that any offence of forgery was committed by the accused/revision-petitioners. They further submitted that the forgery could only be committed in respect of the original documents, and not in respect of the copies thereof. They further submitted that Dhani Devi, one of the alleged impersonator, in place of Bimla Devi, a coowner in the property, was acquitted by the Court below. They further submitted that Karam Singh, one of the accused, only identified Kulwant Singh, a vendee. They further submitted that the identity of Kulwant Singh was not at all. disputed. They further submitted that Budh Ram. one of the accused/revision petitioners, identified Babu Ram, vendee, whose identity is not disputed, whereas Rameshwar Dass, identified Dhani Devi, who has already been acquitted. They further submitted that the original owners were not produced to prove that the sale deeds were forged documents. They further submitted that the findings of the Civil Courts, which have not yet attained finality, as Regular Second Appeal, is pending against the same, are not binding on the Criminal Court, to hold that the sale deeds were forged documents. They further submitted that, under these circumstances, the Courts below, recorded conviction and awarded sentence to the accused/revisionpetitioners, on flimsy grounds, without any legally admissible evidence, and contrary to the provisions of law. They further submitted that the accused/revision-petitioners were liable to be acquitted. They further submitted that, under these circumstances, the Courts below, recorded conviction and awarded sentence to the accused/revisionpetitioners, on flimsy grounds, without any legally admissible evidence, and contrary to the provisions of law. They further submitted that the accused/revision-petitioners were liable to be acquitted. They also placed reliance on The State of Punjab v. Gurjant Singh and Ors. 1992(2) R.C.R.(Criminal) 303 : 1992(2) CLR 196, K.G. Prem Shanker v. Inspector of Police and another, 2002(4) R.C.R.(Criminal) 596 : 2002(4) R.C.R.(Civil) 330 : (2002) 8,SCC, 87, B.N. Kushyap v. Emperor (AIR 1945 Lahore 23) (Full Bench), Kharkanis State of W.P. (AIR 1965 (SC) 83, and M.S. Sheriff v. State of Madras (AIR 1954 (SC.397) in support of their contentions. 11. On the other hand, the Counsel for the respondent-State, admitted that the forgery could only be committed, in respect of the original sale deeds, and not in respect of the copies thereof. He also admitted that the original sale deeds never saw the light of the day. He also admitted that Dhani Devi, one of the accused, who impersonated Bimla Devi, a co-owner of the property, was acquitted, by the Courts below. He further submitted that the Courts below, however, rightly convicted and sentenced the accused-petitioners. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the revision petitions, should be accepted, for the reasons to be recorded hereinafter. It is settled principle of law, that while exercising revisional jurisdiction,this Court, cannot revaluate and reappreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion, that the findings arrived at by the Courts below, are perverse or illegal, being not based on any admissible evidence, or there was mis-reading and misappreciation of evidence, produced by the prosecution. The case of the prosecution precisely, was that Dhani Devi impersonated Bimla Devi, a co-owner and got executed the sale deed, in her favour. Dhani Devi has since been acquitted. The original sale deeds, admittedly, in respect whereof, the forgery was allegedly committed, did not see the light of the day, at any point of time, during the trial of the case. Only the copies thereof, were produced, on record. Dhani Devi has since been acquitted. The original sale deeds, admittedly, in respect whereof, the forgery was allegedly committed, did not see the light of the day, at any point of time, during the trial of the case. Only the copies thereof, were produced, on record. No explanation, what to speak of plausible, was furnished by the prosecution, as why the original sale deeds, were not recovered from the vendees, during the course of investigation. Had any explanation, been furnished, the matter would have been considered, in the light thereof. The Court cannot coin any explanation, of its own, to fit in with the case of the prosecution. The offence of forgery can only be committed in relation to the original documents and nor with respect to the copies thereof. In The State of Punjabs case (supra) relating to an appeal against acquittal, the original sale deeds, in relation whereto, the alleged forgery was committed, were not produced. The accused were, thus, acquitted. In an appeal against acquittal, a Division Bench of this Court, in the aforesaid case, held that, in the absence of production of the original documents, no offences under Sections 467,468, 419, 420 and 109 were committed, by the accused. Ultimately, the appeal was dismissed. The principle of law, laid down, in the aforesaid case is fully applicable to the facts of the instant case: The Courts below, thus, recorded findings, on the aforesaid point, contrary to the settled principle of law. The same, thus, being perverse and illegal are liable to be set aside. 13. The original owners, who were allegedly impersonated by Dhani Devi. Babu Ram and Kulwant Singh, were not examined by the prosecution. They could be said to be the material witnesses, to prove, that they never executed the sale deeds, in respect of the property, in dispute. There is no indication, in the judgments of the Courts below, that efforts were made to summon these witnesses, by the prosecution. There is nothing, on the record, that any evidence was produced to prove that photo-impressions of the photographs, on the copies of the sale deeds, were not of Bimla Devi, Ravi Chand, Muni Ram and Ram Piari. There is no indication, in the judgments of the Courts below, that efforts were made to summon these witnesses, by the prosecution. There is nothing, on the record, that any evidence was produced to prove that photo-impressions of the photographs, on the copies of the sale deeds, were not of Bimla Devi, Ravi Chand, Muni Ram and Ram Piari. No effort was made to get compared the questioned thumb impressions of the alleged vendors, on the copies of the sale deeds, with the standard or specimen thumb impressions of the original owners or of their own specimen or standard thumb impressions. The statements of Basheshar, (PW1), Raj Kumar, (PW2), Pawan Kumar, (PW3), Sat Parkash, (PW5), and Barkha Ram, (PW7) to the effect that the original owners were not living in the village and their whereabouts were not known, could not be said to be sufficient to prove that they did not execute the sale deeds. They were not the attesting witnesses of the sale deeds. Their evidence was of no avail to prove that the original owners, were impersonated by Bimla Devi, Babu Ram and Kulwant Singh. The Courts below were wrong, in coming to the conclusion, that it was the duty of the accused, to produce the original owners. It is settled principle of law, that the prosecution, is required to prove its case, beyond a reasonable doubt/Even if, the accused set up some defence, but do not prove the same, that does not establish the case of the prosecution. The Courts below, recorded findings, that the accused committed the offences, under Sections 419, 420, 467, 468 and 120-B IPC, without any evidence. The findings of the Courts below, on the aforesaid points, are perverse and illegal. The same are liable to be set aside. 14. Coming to the factum whether the judgments of the Civil Court, are binding on the Criminal Court, it may be stated here that still a Regular Second Appeal, is pending against the same. The same have not yet attained finality. It was held in K.G. Prem Shankers case (supra), that the decision of the Civil Court, shall be relevant, if conditions of any of Sections 40 to 43, are satisfied, but it cannot be said, that the same would be conclusive, except as provided in Section 41. The same have not yet attained finality. It was held in K.G. Prem Shankers case (supra), that the decision of the Civil Court, shall be relevant, if conditions of any of Sections 40 to 43, are satisfied, but it cannot be said, that the same would be conclusive, except as provided in Section 41. If the judgement, order or decree of Civil Court, is relevant, as provided, under Sections 40 and 42, then Court has to decide, as to what extent, it is binding, with regard to matters decided therein. Therefore, in each case, it has to be ascertained, whether judgement, decree or order, is relevant, and, if so, its effect. In the instant case, the prosecution was required to prove, beyond a reasonable doubt, by leading cogent and convincing independent evidence, that the sale deeds, executed by Budh Ram, Rameshwar, Karam Singh, Ram Pal and Sham Lal were the result of fraud, forgery and misrepresentation. On the other hand the civil case was required to be decided on the preponderance of evidence. Merely, on the basis of the Civil Court judgements, it could not be conclusively held, in the criminal trial, that the sale deeds were the result of fraud, forgery and misrepresentation. Under these circumstances, the judgement of the Civil Court, cannot be said to be binding, on the Criminal Court, for the purpose of deciding the guilt of the accused, in a criminal case. In B.N. Kashyap v. Emperor, AIR 1945, Lahore 23, a Full Bench of the Lahore High Court considered the following question :- "When there are concurrent proceedings covering the same ground before a criminal Court and a civil Court, the parties being substantially the same, would the judgment of the civil Court, if obtained first, be admissible in evidence before the criminal Court in proof or disproof of the fact on which the prosecution is based ?" In that context while deciding the said question the Court observed thus : In other words, the short point to decide is whether the finding on certain facts by a civil Court is relevant before the criminal Court when it is called upon to give a finding on the same facts or vice versa ? The Evidence Act being exhaustive, the answer to this question depends upon the correct interpretation of the relevant provisions, contained in that Act regardless of the fact whether the conclusion at which one ultimately arrives is in accordance with what was characterized before us during the arguments at the Bar to a common-sense view of things or not. In construing a statute like the Evidence Act, where any fact intended to be established has to be in accordance with the scheme of the Act, found to be relevant under a provision contained in the Act before it can be allowed to be proved, any argument based on plausibility can have no effect. I must therefore ignore any other consideration and confine myself strictly to the provisions of the Act. Thereafter, the Court referred to Sections 42 and 43 of the Evidence Act. After considering the said questions, theCourt observed as under: Under Section 40 of the Act, previous judgements are admissible in support of a plea of res judicata in civil cases or of autre fois acquit or autre fois convict in criminal cases. Judgements such as those the relevancy whereof we have been called upon to determine do not fall under this category. Nor can they fall under Section 41 of the Act which only makes a final judgement of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, conferring upon, taking away from or declaring any person to be entitled to any legal character or to be entitled to any specific thing absolutely, relevant when the existence of any such legal character or the title to any such thing is relevant. They do not also fail within the purview of Section 42 of the Act as they do not relate to matters of a public nature. Section 43 of the Act positively declares judgements other than those mentioned in Sections 40,41 and 42 to be irrelevant unless their existence is a fact in issue or is relevant under some other provision of the Act. It is quite clear that the mere existence of a judgement in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wished to rely on Section 11 of the Act. It is quite clear that the mere existence of a judgement in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wished to rely on Section 11 of the Act. But I cannot see how could that Section have any application when the existence of that judgement as apart from any finding contained therein or even the finding itself could neither be inconsistent with any fact in issue or a relevant fact. Nor could such judgements either by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact in any subsequent proceedings highly probable or improbable. This Section only refers to certain facts which are either themselves inconsistent with, or make the existence or non-existence of, the fact in issue or a relevant fact highly probable or improbable and has no reference to opinions of certain persons in regard to those facts. It does not make such opinions to be relevant and judgements after all of whatever authority are nothing but opinion as to the existence or non-existence of certain facts. These opinions cannot be regarded to be such facts as would fall within the meaning of Section 11 of the Act unless the existence of these opinions is a fact in issue or a relevant fact which is of course a different matter. Finally, after considering the various decisions, the Court held thus ; There is no reason in my judgement as to why the decision of the civil Court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to criminal Courts to go behind the findings of the civil Court is to place the latter without any valid reasons in a much higher position than what it actually occupies in the system of administration of this Country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the criminal Court, which, unhampered by the civil Court, is fully competent to decide the questions that arise before it for its decision and where in the nature of things there must be a speedy disposal." 15. In Kharkan v. State of U.P., AIR 1965 (SC) 83, the Court observed thus : "The earlier judgement can only be relevant if it fulfills the conditions laid down by the Indian Evidence Act in Sections 40 to 43. The earlier judgement is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence. What emerges from the aforesaid discussion is- (1) the previous judgement which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply: (3) in a criminal case, Section 300 Cr.PC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgement of the civil Court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgement would be conclusive proof of what is stated therein." 16. In M.S. Sheriff v. State of Madras, AIR 1954 (SC) 397, a Constitution Bench of the Apex Court, held as under :- "That no hard-and-fast rule can be laid down and that possibility of conflicting decision in Civil and Criminal Courts is not a relevant consideration. The law envisages "such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages." 17. The law envisages "such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages." 17. K.G. Premshankers case (supra), did not lay down the invariable principle of law, that the judgement of a Civil Court, would be binding on a criminal Court, in the subsequent criminal trial, relating to the same subject matter. No principle of law, was laid, in the aforesaid case, that the judgements of the Civil Courts, would be a conclusive proof of the facts involved in the criminal trial, relating to the same issue. In this case, the judgements of the Civil Courts do not fall within the purview of Section 41 of the Evidence Act. At the most, the judgements of the Civil Courts, in this case, could be said to be relevant, and not conclusive proof of the factum of forgery or fraud of the sale deeds. No help, therefore, can be drawn, by the Counsel for the revision-petitioners from K.G. Premshankers case (supra). The judgements, rendered by the Courts below, suffer from illegality and perversity, and warrant interference. 18. In fact, there was virtually no legally admissible evidence, on the basis whereof, conviction could be recorded. The conclusions were drawn, by the Courts below, contrary to the settled position of law. The judgments of the Courts below, are, thus, liable to be set aside. 19. For the reasons, recorded above, the instant revision-petitions, are accepted. The judgments of conviction and the order of sentence of the Courts below, are set aside. The petitioners shall stand acquitted of the charge, framed against them. If the petitioners are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required, in any other case.