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2011 DIGILAW 931 (HP)

State of H. P. v. Ravinder Kumar

2011-03-04

KULDIP SINGH, SURJIT SINGH

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JUDGMENT : Surjit Singh, Judge State has appealed against the judgment, dated 24.1.2002, of learned Special Judge (Forests), Shimla, whereby respondent Ravinder Kumar and others, hereinafter called accused, have been acquitted of charge, under Sections 120-B, 327, 384 IPC and Section 13(2) of the Prevention of Corruption Act, 1988. 2. Prosecution case may be summed up thus. Accused Ravinder Kumar was posted as ASI in Police Station, Boileauganj, sometime prior to the year 1993. He became tenant of two British ladies in a portion of the property known as Dunloe Estate. One of the two ladies died about three years prior to the death of other lady. The other lady, whose name was Ms. Doris Isolence Heysham, died on 9.12.1993. 3. Above named Doris Isolence Heysham, after the death of her companion lady, fell sick in the month of May, 1993. She was shifted to IGMC, Shimla, where she remained admitted for about two weeks. She had suffered from a stroke of hemiplegia, because of which her right limbs, both lower and upper, got affected. After she recovered from the attack to a considerable extent, she was discharged. She went to her Estate named Duloe Estate. Accused Ravinder Kumar as also accused P.C. Joshi, who too was a tenant in a portion of the aforesaid building of the lady, hatched a conspiracy to get prepared a Will, in respect of the aforesaid Estate, in their favour, by obtaining the thumb impression of the lady. To achieve that object they got the thumb impression of the lady affixed on a bank withdrawal form Ext. PW15/A, on 25.5.1993, surreptitiously. 4. Accused Rakesh Kumar, who was Manager of the aforesaid Bank, i.e. SBI Boileauganj Branch at the relevant time, also joined hands with the above named two accused. Against the aforesaid withdrawal form, a sum of `5000/- was shown to have been withdrawn by the lady. The intention was to create evidence that the lady was unable to sign because of the illness and, therefore, she had started executing the papers by thumb impressing them. 5. On the night intervening 14th and 15th October, 1993, accused Ravinder Kumar, P.C Joshi and Satish Kumar, who was working as SHO at Police Station, Dhali during those days, went to the room of said Doris Hesham. They carried with them draft of Will Ext. PW3/B and asked the said lady to execute the same. 5. On the night intervening 14th and 15th October, 1993, accused Ravinder Kumar, P.C Joshi and Satish Kumar, who was working as SHO at Police Station, Dhali during those days, went to the room of said Doris Hesham. They carried with them draft of Will Ext. PW3/B and asked the said lady to execute the same. When she refused, they allegedly slapped her and forcibly held her right thumb and after smearing the same with ink, got the impressions of her thumb on the Will. Thereafter Will was attested by accused Satish Kumar and Surat Singh Thakur. Initially, Sub-Registrar of Documents (Urban), Shimla, namely Virenderjit Singh Sahi was approached by accused Ravinder Kumar to register the Will and when the lady on being visited by said Virenderjit Singh Sahi denied having executed the Will, he refused to register the same. Accused Ravinder Kumar then made T.C. Behl, Sub Registrar (Rural), Shimla, a party to the conspiracy and the latter, in league with the Registration Clerk, i.e. accused Lekh Ram, registered the Will. 6. Matter came to light in the course of inquiry conducted by PW-16 V.N. Machhan. Dy. S.P., into a complaint Ext. DA, lodged by PW-5 Roop Singh. Though PW-16 Dy. S.P. V.N. Machhan, in his Inquiry Report, gave a clean chit to accused Ravinder Kumar, Secretary (Home), Govt. of H.P., to whom inquiry report was submitted, disagreed with the finding recorded in the Inquiry Report and directed registration of case, which was registered vide FIR Ext. PW7/B. Investigation was conducted by two Senior Police Officers, namely PW-17 I.D. Bhandari and PW-18 Surinder Sharma. Investigation revealed that besides the involvement of the above named persons, in the aforesaid manner, accused Anil Kumar, who had been working as a servant with the above named lady, was also party to the commission of alleged crime, by the other accused. 7. On completion of investigation, sanction to prosecution those of the accused, who are public servants, was obtained from their Competent Authorities and report, under Section 173 Cr. P.C. was filed in the Court of Special Judge, who after complying with the requirement of Section 207 Cr. P.C., charged the respondents, as aforesaid, and on their pleading not guilty, tried them. 8. Respondents denied that the Will was forged or that there was any conspiracy to deprive the lady of her property. 9. P.C. was filed in the Court of Special Judge, who after complying with the requirement of Section 207 Cr. P.C., charged the respondents, as aforesaid, and on their pleading not guilty, tried them. 8. Respondents denied that the Will was forged or that there was any conspiracy to deprive the lady of her property. 9. Learned trial Court has held that case of the prosecution does not stand established, beyond reasonable doubt and consequently, acquitted all the accused. 10. We have heard learned Assistant Advocate General as also the learned counsel, representing the respondents, and gone through the record. 11. There is no direct evidence, with regard to the allegation that accused Ravinder Kumar, Satish Kumar and P.C. Joshi slapped the lady and then by use of force got the Will thumb impressed from her. During the course of investigation, Investigating Officer got the statement of a lady, by the name of Sita Devi, who was mother-in-law of accused Ravinder Kumar, recorded, under Section 164 Cr. P.C. The said statement is Ext. PW22/D. It was recorded by Shri R.C. Sharma, then posted as Chief Judicial Magistrate. It is only in this statement that it is recorded that the three accused, accompanied by several other persons, went to the house of the lady, on the night intervening 14th and 15th October, 1993, and required her to execute the Will, draft of which was already with them and when she refused she was slapped and thereafter one of the accused held her by her wrist and got her thumb impression affixed on the Will, after applying ink from the stamp-pad. Prosecution could not examine the lady in the Court because of her dying before the start of the trial. Her statement Ext. PW22/D cannot be used as substantive evidence. It could have been used only for the purpose of corroborating or contradicting her statement, had she appeared in the witness box during trial. 12. No other witness supports the prosecution version. PW-5 Rup Singh, who lodged complaint Ext. DA, which is dated 23.8.1993, testified that he had been told by Sita Devi about the alleged incident of the night intervening 14th and 15th October, 1993. 12. No other witness supports the prosecution version. PW-5 Rup Singh, who lodged complaint Ext. DA, which is dated 23.8.1993, testified that he had been told by Sita Devi about the alleged incident of the night intervening 14th and 15th October, 1993. His statement cannot be believed for the reasons that in his complaint, which is dated prior to the date of the aforesaid alleged incident, it is written that accused Ravinder Kumar had forged the Will of the lady in the name of his wife. In August, 1993, there was no such Will, when complaint Ext. DA was lodged. His making this allegation in complaint Ext. DA suggests that he had been making false allegation against Ravinder Kumar. The witness is not on good terms with accused Ravinder Kumar, as admitted by him in the cross-examination, as several criminal cases and also one rent case, had been going on between him and one Onkar, a brother-in-law of accused Ravinder Kumar. 13. Prosecution examined a Gurkha, by the name of Man Bahadur, as PW-6, who had allegedly been living in the aforesaid Estate, since the time of the original lady owner, to prove the alleged incident of the night intervening 14th and 15th October, 1993. The witness not only did not support the prosecution version, but rather gave a lie to it by saying that the lady had been having very cordial relations with accused Ravinder Kumar and stayed with him for two months at Theog, when the said accused was posted there as SHO. 14. Two other witnesses examined by the prosecution to prove the aforesaid incident, namely PW-4 R.C. Chauhan and PW-5 Ravi Kant also did not say anything with regard to the alleged incident. 15. Prosecution’s allegation that the lady was in a position to put her signatures and that false evidence had been created to give the impression that she had become incapable of writing and signing, after she suffered hemiplegia attack in May, 1993, also does not stand established. According to the prosecution, withdrawal slip Ext. PW15/A had been prepared, with the thumb impression of the lady, to create such evidence. Prosecution examined PW-15 S.K. Ahuja, an Officer from SBI Boileauganj Branch. The witness stated that when withdrawal form Ext. According to the prosecution, withdrawal slip Ext. PW15/A had been prepared, with the thumb impression of the lady, to create such evidence. Prosecution examined PW-15 S.K. Ahuja, an Officer from SBI Boileauganj Branch. The witness stated that when withdrawal form Ext. PW15/A was submitted to accused Rakesh Kumar, who was then officiating as Bank Manager, he personally went to the place of the lady to verify if she was really unable to sign, because as per bank record, earlier she had been signing the papers and that he made the payment only when he was satisfied that she was really unable to write her name. 16. In view of the above discussed evidence, we do not think this to be a fit case where judgment of acquittal may be interfered with. Hence, appeal is dismissed.