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2013 DIGILAW 205 (HP)

BASIA RAM v. STATE OF HIMACHAL PRADESH

2013-04-01

SANJAY KAROL

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JUDGMENT SANJAY KAROL, J. - 1. FIR No.217 of 2001, dated 2.6.2001 was registered at Police Station, Paonta Sahib, under Section 193,196,420 read with Section 120 of the Indian Penal Code, against Kartara Ram (accused No.1) and Basia Ram (accused No.2). Both the accused persons were charged for having committed the aforesaid offences. During trial, accused No.1 expired and on the conclusion of trial, trial Court, i.e. Judicial Magistrate 1st Class, Court No.1, Paonta Sahib vide judgment dated 29.5.2010, passed in Criminal Case No.97/2 of 2006/02, titled as State of Himachal Pradesh versus Kartara Ram and another, convicted accused Basia Ram for having committed the aforesaid offences and sentenced him to undergo simple imprisonment for a period of one month each, in relation to offences under Sections 193 & 196 of the Indian Penal Code and also pay fine of Rs.500/- each. Further, undergo simple imprisonment for a period of three months for having committed an offence under Section 420 of the Indian Penal Code and pay fine of Rs.1,000/-. In the event of default, accused was to undergo further imprisonment for a period of seven days and one month, respectively. 2. The aforesaid findings of fact stand affirmed by the lower Appellate Court, i.e. Sessions Judge, Sirmaur District at Nahan, vide judgment dated 14.5.2012, passed in Criminal Appeal No.21-Cr.A/10 of 2010, titled as Basia Ram versus State of Himachal Pradesh. In short, case of the prosecution is that accused No.1 Kartara Ram was allotted five bighas of land by the Government under the landless scheme. Since there was an embargo for sale of the land for a particular period and that the land could not have been sold during the life time of spouse of Kartara Ram, both the accused persons conspired to prepare a false affidavit to the effect that Smt. Phoolwati wife of Kartara Ram was not alive. The said affidavit was witnessed by accused No.2. Based on the said affidavit, Kartara Ram sold the land to third parties, who are not accused in the present case. Also, they are not the cited witnesses. 3. In order to prove its case prosecution examined as many as eighteen witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded. 4. Based on the said affidavit, Kartara Ram sold the land to third parties, who are not accused in the present case. Also, they are not the cited witnesses. 3. In order to prove its case prosecution examined as many as eighteen witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded. 4. Trial Court, based on the testimony of Shri Jagat Ram (PW-2), came to the conclusion that accused Basia Ram was aware of the fact that Smt. Phoolwati wife of accused No.1 Kartara Ram was alive and as such a false statement, on oath, was made by way of an affidavit, which was used for the purpose of transferring the property in violation of the Rules. Now, this is the only piece of evidence against accused Basia Ram. Significantly and undisputedly, it has come on record that there was serious dispute with regard to matrimonial relationship between accused No.1 Kartara Ram and Smt. Phoolwati. Smt. Phoolwati, during her life time, filed an application under the provisions of Section 125 of the Code of Criminal Procedure for maintenance, which was dismissed. Thereafter, she filed a Civil Suit, being Civil Suit No.162/1 of 1999, titled as Smt. Phoolwati (since deceased) through her LRs versus Rajinder Parkash and others for permanent prohibitory injunction. Vide judgment and decree dated 29.6.2011, the said Civil Suit stands dismissed by the Civil Court, wherein it has been categorically held that Smt. Phoolwati was not the wife of accused No.1 Kartara Ram. This judgment and decree has attained finality. 5. That apart, having perused the record carefully, I am of the considered view that the Courts below seriously erred in clearly, completely and correctly appreciating the evidence placed on record by the prosecution against accused No.2 Basia Ram. In fact, Courts below misdirected themselves in deciding the controversy in issue, holding the accused guilty of preparing and fabricating false evidence for the purpose of the same being used in any judicial proceedings or that accused No.2 Basia Ram conspired with accused No.1 Kartara Ram to cheat and dishonestly induce deliverance of property. 6. It is not the case of the prosecution that accused No.1 Kartara Ram had any grievance against accused No.2 Basia Ram. Now accused Basia Ram has simply identified deponent Kartara Ram. This is evident from a perusal of the document (Ex. PX) itself. 6. It is not the case of the prosecution that accused No.1 Kartara Ram had any grievance against accused No.2 Basia Ram. Now accused Basia Ram has simply identified deponent Kartara Ram. This is evident from a perusal of the document (Ex. PX) itself. Accused Basia Ram being an identifier, did not have either any occasion or opportunity to verify the authenticity or correctness of the contents of the affidavit. Affidavit is also not scribed by him nor has accused Basia produced the said affidavit before the statutory authorities for the purpose of effecting the sale transaction entered into by accused Kartara Ram with third parties. It is not the case of the prosecution that accused Basia Ram himself is a beneficiary of such transaction. Simply because accused Basia Ram was a resident of the village and the fact that he knew that Smt. Phoolwati was residing with accused Kartara Ram, that fact itself would not establish the guilt of the accused with regard to matrimonial relationship between accused Kartara Ram and Smt. Phoolwati, more so in the backdrop of the factual matrix with regard to litigation inter se between Smt. Phoolwati and accused Kartara Ram. Prosecution has to prove its case beyond reasonable doubt and not on the basis of preponderance of probability. Noticeably, affidavit in question, which is stated to be a false and fabricated piece of evidence, was never used in any judicial proceedings. As such, the Courts below erred in convicting the accused for having committed offences under the provisions of Sections 193 and 196 of the Indian Penal Code. To my mind, appreciation of evidence would only show that there was never any conspiracy by accused Basia Ram to cheat any person. He never induced fraudulently or dishonestly any person to deliver the property of accused Kartara Ram. He also did not retain any such property. As such, it cannot be said that the accused also committed offences under the provisions of Section 420 read with Section 120 of the Indian Penal Code. 7. Hence, for all the aforesaid reasons, present revision petition is allowed. Judgment passed by the trial Court as affirmed by the lower Appellate Court stands set aside and the accused is acquitted of all the charges. Personal and surety bonds furnished by the accused are discharged. Revision petition stands disposed of, so also the pending application, if any. 7. Hence, for all the aforesaid reasons, present revision petition is allowed. Judgment passed by the trial Court as affirmed by the lower Appellate Court stands set aside and the accused is acquitted of all the charges. Personal and surety bonds furnished by the accused are discharged. Revision petition stands disposed of, so also the pending application, if any. Revision petition stands disposed of.