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2015 DIGILAW 2221 (PNJ)

Balbir Singh v. Bhim Singh

2015-12-08

AMOL RATTAN SINGH, S.S.SARON

body2015
JUDGMENT Mr. S.S. Saron, J.:- The criminal miscellaneous application has been filed under Section 378 (3) of the Code of Criminal Procedure (‘Cr.P.C.’ - for short) seeking leave to appeal against the acquittal of the respondents vide judgment dated 16.04.2014 passed by the learned Judicial Magistrate 1st Class, Dera Bassi. 2. Learned counsel for the applicant submits that the application for leave to appeal should in fact have been under Section 378 (4) Cr.P.C. as the acquittal of the respondents is on a private complaint filed by the applicant and may be treated as such. 3. Along with the appeal, criminal miscellaneous application No. 20802 of 2014 has been filed seeking condonation of delay of 12 days in filing the application for leave to appeal. 4. We have heard learned counsel for the applicant and gone through the judgment of the learned Judicial Magistrate 1st Class, Dera Balbir Singh versus Bhim Singh and others Bassi. 5. The complainant/applicant-Balbir Singh along with his brothers Surinder Singh and Balwant Singh sons of Ram Kishan son of Munshi, it is stated, are owners in possession of land measuring 2 bighas and 2½ biswas, i.e. 1/8th share of land measuring 17 bighas, situated in Village Bhagsi, Tehsil Dera Bassi, District SAS Nagar, Mohali. The land was earlier owned and possessed by their father-Ram Kishan, who died on 17.12.1998. Mutation No. 659 of his inheritance was sanctioned in favour of the complainant/applicant-Balbir Singh as also his brothers Surinder Singh and Balwant Singh on 01.01.2000. According to the complainant/ applicant-Balbir Singh; the respondents - Bhim Singh and Dhoom Singh hatched a conspiracy to grab the land measuring 2 bighas 2½ biswas and they prepared a fictitious sale-deed dated 30.12.1993 bearing ‘Vasika’ (Deed) No. 1729. The same was without consideration and was a fake document. Ram Kishan, their father, had never executed such a sale-deed. Respondent No.3, it is alleged, is the Lambardar who wrongly got the sale deed executed and witnessed the same. 6. In order to prove that the sale-deed in question was forged, the complainant/applicant-Balbir Singh examined a handwriting writing and finger prints expert namely Dr. Jassi Anand (CW3). Ram Kishan, their father, had never executed such a sale-deed. Respondent No.3, it is alleged, is the Lambardar who wrongly got the sale deed executed and witnessed the same. 6. In order to prove that the sale-deed in question was forged, the complainant/applicant-Balbir Singh examined a handwriting writing and finger prints expert namely Dr. Jassi Anand (CW3). However, the said expert compared and examined the disputed thumb impressions of the executant of the sale-deed dated 30.12.1993 with the standard signatures of Ram Kishan taken from a photostat copy of a Will executed by him (Ram Kishan) in favour of the complainant/applicant-Balbir Singh and his brothers. In other words, the standard thumb impressions of Ram Kishan, Balbir Singh versus Bhim Singh and others executant of the sale-deed, were taken from the photostat copy of the alleged Will executed by him in favour of the complainant/applicant-Balbir Singh and his brothers. The learned trial Court held that the settled law is that the standard thumb impressions or disputed thumb impressions have to be taken from the original document and comparison of such thumb impressions from photocopies was not a valid examination. In Surjit Rai versus Prem Kumar Khera, 1995 (2) PLR 140, this Court observed as follows: “Original agreement has not been produced on the record. In my view, signatures cannot be compared from the photocopy of the agreement because in these days of advance technology, signatures of a person can be lifted from one document and put on another document by super imposition.” 6. No reason whatsoever has been furnished by the learned counsel for the applicant/appellant as to why the original Will of Ram Kishan was not submitted for taking the standard thumb impressions of the executant-Ram Kishan, which is the primary evidence and was liable to be taken into account in terms of Section 64 of the Evidence Act, 1872. It is only when the primary evidence is shown to be in possession or power of the other person or whether any of the conditions as enumerated in clauses (a) to (g) of Section 65 of the Evidence Act are there that secondary evidence can be produced and proved. 7. It is only when the primary evidence is shown to be in possession or power of the other person or whether any of the conditions as enumerated in clauses (a) to (g) of Section 65 of the Evidence Act are there that secondary evidence can be produced and proved. 7. The learned counsel for the applicant has not been able to show Balbir Singh versus Bhim Singh and others as to why the primary evidence was not produced and as to whether any of the conditions provided for in clauses (a) to (g) of Section 65 of the Evidence Act were there which necessitated the production of the photocopy of the Will of Ram Kishan. 8. In the circumstances, we find no ground to interfere with the reasons recorded by the learned Judicial Magistrate 1st Class, Dera Bassi in acquitting the respondents. In the circumstance, the application seeking leave to appeal is declined; besides, the question of delay in filing the appeal is only academic and is also dismissed. 9. It is, however, made clear that nothing stated or observed herein shall in any way affect the civil proceedings pending between the parties as the Civil Court is to consider the evidence and material as adduced before it uninfluenced by any observations in the criminal proceedings.