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2016 DIGILAW 390 (HP)

State of Himachal Pradesh v. Kunju Ram

2016-04-01

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. This appeal stands directed against the judgement rendered on 20.08.2011 by the learned Special Judge, Chamba Division, Chamba, Himachal Pradesh in Corruption Case No.6 of 2009, whereby the accused-respondent stands acquitted for the commission of offences punishable under Section 409, 420, 467, 468, 471 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act. 2. The prosecution story, in brief, is that accused Kunju Ram remained posted as Naib Tehsildar, Bharmour from 1994 to 2001. In January/February, 1998 there were extensive rains and snow fall in Sub Division Bharmour due to which houses of several persons were damaged and there was heavy loss of property and crop etc. Due to this, the Deputy Commissioner, Chamba vide letter Ext.PW-1/A asked the Government to sanction an amount of Rs.20 lac from Chief Minister Relief Fund for providing relief to the affected families and the same was sanctioned. Thereafter the Deputy Commissioner, Chamba vide letter Ext.PW-1/D sent an amount of Rs.15 lac to Sub Divisional Officer (Civil), Bharmour vide cheque Ext.PW.3/A, while an amount of Rs. 5 lac was sent by cash. Out of the aforesaid amount, Rs.3 lac was handed over to the accused by the Sub Divisional Magistrate, Bharmour on 13.4.1998 for disbursement to the eligible persons. Thereafter a complaint dated 17.8.1999 was received in Police Station, Chamba from one Tulsi Ram Sharma with the allegations that the relief amount was misused by the officials in village Sachuien, Tehsil Bharmour, District Chamba, upon which an inquiry was conducted by Sh. Pritam Chand, Incharge, SV and ACB, Chamba and found the allegations in the complaint to be true and submitted his report Ext.PW-10/C to S.P. Vigilance. On that inquiry report, FIR Ext.PW.10/B was recorded. The investigation in the case was conducted by PW-10 Sh. Pritam Chand and PW-37 Sh. Parkash Chand and as per their investigation, they found that out of the amount of Rs.3 lac which was given to the accused for disbursement as relief to the people, the accused had embezzled an amount of Rs.61,000/- and prepared forged/false documents and receipts by showing the said amount of Rs.61,000/-to have been paid to various persons namely Machlu Ram, Govind, Bishnu, Ghimo, Kour, Balbir and Rana. The accused was arrested by the police on 28.12.2006. The accused was arrested by the police on 28.12.2006. He was produced by the police before the Naib Tehsildar, Palampur for obtaining his specimen handwriting and signatures, where his specimen henadwriting and signatures Ext.PW-19/A.1 to PW-19/A.7 were taken. The police also took into possession some letters written by the accused to SDM, Bharmour as admitted signatures and handwriting of the accused. The police also took the thumb, fingers and hand impressions and handwriting etc. of Sh. Machlu Ram etc. It also took into possession various receipts Exts.PW-14/A.6 to PW-14/A.12. The said specimen signatures and handwritings of the accused and other persons along with documents were sent by the police to the State Forensic Science Laboratory and Fingers Print Bureau for comparison and as per report of expert Ext.PW-39/A, said receipts and letters contained the signatures of one and the same person. Thereafter the police requested the Divisional Commissioner, Kangra for sanction to prosecute the accused and accordingly sanction Ext.PW-38/A was granted on 18/6/2009. 3. On completion of investigations into the offences allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court. 4. The accused-respondent herein stood charged by the learned trial Court for committing offences punishable under Sections 409, 420, 467, 468, 471 of the Indian Penal Code and under Section 13(2) of the Prevention of Corruption Act. The accused-respondent pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 40 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, stood recorded wherein he pleaded innocence and claimed false implication. In defence he chose to not lead any evidence. 6. The evidence projected before the learned trial Court by the prosecution witnesses forthrightly displays the factum of the accused standing entrusted with a sum of Rs. 3,00,000/-. From the sum aforesaid, the accused is alleged to have embezzled an amount of Rs. 61,000/-. The misappropriation of the sum aforesaid by the accused stands anvilled upon the accused preparing receipts Exts.PW-14/A.6 to PW-14/A.12 purportedly respectively signed/thumb marked by the beneficiaries thereof in portrayal of the sums constituted therein standing disbursed to them by the accused. 3,00,000/-. From the sum aforesaid, the accused is alleged to have embezzled an amount of Rs. 61,000/-. The misappropriation of the sum aforesaid by the accused stands anvilled upon the accused preparing receipts Exts.PW-14/A.6 to PW-14/A.12 purportedly respectively signed/thumb marked by the beneficiaries thereof in portrayal of the sums constituted therein standing disbursed to them by the accused. The fictitiousness of the thumb impressions of the beneficiaries on receipts Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12 stands established by PW-40, deposing of the beneficiaries thereof on his comparing the disputed thumb impressions on receipts Exts.PW- 14/A.6, PW-14/A.8 and PW-14/A.12 with their standard admitted thumb impressions comprised in Ext.PW-4/A.1 to PW-4/A.21 sequelling an opinion from him of the thumb impressions existing on receipts Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12 not tallying with their standard admitted thumb impressions comprised in Ext.PW-4/A.1 to PW-4/A.21, hence constraining him to conclude of the thumb impressions of the beneficiaries of the amounts constituted in receipts comprised in Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12 standing not thumb marked by them. Besides the fictitiousness of the signatures existing on receipts Ext.PW-14/A.7, PW-14/A.9, PW-14/A.10 and PW-14/A.12 stands established by the handwriting expert opining therein of the standard admitted signatures of the beneficiaries existing in Exts.PW-4/A.31 to PW-4/A.46 and PW-4/A.63 to PW-4/A.78 on comparison with the disputed signatures existing thereon unfolding the factum of theirs not standing signed by them. However, reliance if any upon the aforesaid report of the handwriting expert comprised in Ext.PW-39/B qua the factum aforesaid stands belittled by; (a) there existing on record no document in portrayal of the Investigating Officer collecting at the instance of the accused before the competent officer the disputed signatures made before it by him for facilitating the handwriting expert concerned to render an apposite opinion on his tallying the disputed signatures on receipts Exts.PW-14/A.7, PW- 14/A.9, PW-14/A.10 and PW-14/A.12 with the signatures in compatibility thereof made by the accused before the competent officer. Absence thereof not only deterred the handwriting expert concerned to tally the disputed signatures with the signatures in compatibility thereof made by the accused before the competent officer, but also deterred him to record an apposite opinion for enabling this Court to conclude with firmness of the disputed signatures of the beneficiaries borne on receipts Exts.PW-14/A.7, PW-14/A.9, PW- 14/A.10 and PW-14/A.12 standing authored by the accused. In sequel, it cannot be said with any firmness of accused Kunju Ram forging on receipts Exts.PW- 14/A.7, PW-14/A.9, PW-14/A.10 and PW-14/A.12 the signatures of the beneficiaries thereunder; (b) the fingerprints expert in his report has opined therein of the thumb impressions of the beneficiaries borne on receipts Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12 not belonging to them. However, in the absence of the Investigating Officer collecting before the competent officer the thumb impressions of accused Kunju Ram for enabling the fingerprints expert to render with aplomb and conclusivity an opinion of on his comparing the disputed thumb impressions borne thereon with the thumb impressions made by the accused before the competent officer, of accused subscribing his thumb impressions on receipts Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12, cannot clinch any conclusion of accused Kunju Ram thumb marking receipts Exts.PW-14/A.6, PW- 14/A.8 and PW-14/A.12. 7. With lack of conclusivity hence not ingraining the report of the handwriting/fingerprints expert comprised in Exts.PW-39/A, PW-39/B, PW-40/B and PW-40/C, respectively qua the accused hence subscribing his thumb impressions besides his signatures on receipts Ext. PW-14/A.6 to PW-14/A.12 dethrones the prosecution case of the accused either thumb marking receipts Exts.PW-14/A.6, PW-14/A.8 and PW-14/A.12 or signaturing receipts Exts.PW-14/A.7, PW-14/A.9, PW-14/A.10 and PW-14/A.12. 8. Significantly, it is also imperative to advert to the testimony of PW-25 Rana Singh. He in his deposition on oath admits his signatures on receipt Ext.14/A.9, yet he denies the factum of his receiving the entire sum of Rs. 25,000/- as embodied therein. With his admitting his signatures on Ext.PW-14/A.9 which records the factum of his thereunder receiving a sum of Rs. 25,000/- ousts the probative worth of his oral testimony in variance or in contradiction thereto in the wake of a statutory bar or estopple constituted in Sections 91 and 92 of the Indian Evidence Act against receipt of evidence in derogation to the recitals recorded in Ext.PW-14/A.9 proved to be signatured by him. In face thereof, it has to be concluded of his testimony of his not receiving therunder the sums of money as constituted therein being bereft of creditworthiness. In face thereof, it has to be concluded of his testimony of his not receiving therunder the sums of money as constituted therein being bereft of creditworthiness. Even though he deposes of his signatures standing obtained on blank papers for facilitating him to escape the rigour of the statutory bar constituted in Sections 91 and 92 of the Indian Evidence Act to depose at variance and in contradiction to the recitals of Ext.PW-14/A.9 proven to be signatured by him, nonetheless he cannot whittle down the rigour of the bar aforesaid constituted in the aforereferred provision of the Indian Evidence Act against his deposing in gross detraction to the recorded recitals of Ext.PW-14/A.9, especially when he deposes the factum of his signing blank Ext.PW-14/A.9 only while testifying in Court whereas his omitting to do so in his previous statement recorded in writing renders hence his deposition on oath to be acquiring the taint of an improvement or an embellishment. Likewise, the statement of PW-29 Dinna Nath who has admitted his signatures on Ext.PW-14/A.9 yet has too, to evade besides escape the rigour of the embargo constituted in Sections 91 and 92 of the Indian Evidence Act against his deposing in variance or in contradiction thereto deposed qua his signing blank papers, is also bereft of creditworthiness for a like reason. PW-26 has not corroborated the story of the prosecution. He has identified his signatures on Ext.PW-14/A.11 hence absolving the guilt, if any, attributed to the accused by the prosecution of his forging his signatures thereon. PW-27 Ghimo Ram though denies his signatures on Ext.PW-14/A-12, yet his denial does not for the reasons previously referred carry any tenacity or vigour for concluding of the accused forging his signatures on Ext. PW-14/A.12, besides given the factum that he has in his deposition admitted the payment of the sums of money constituted in Ext.PW-14/A.12 in the presence of Pennu Ram, enjoins this Court to allude to the deposition of the aforesaid Pennu Ram who has deposed as PW-30. With PW-30 underscoring in his deposition of PW-27 standing disbursed in his presence by the competent authority a sum of money constituted in Ext.PW-14/A- 12 renders bereft of tenacity the deposition of PW-27 of his not signaturing Ext.PW-14/A.12. Even though PW- 28 Balbir Singh admitted his signatures on Ext. PW- 14/A.10. With PW-30 underscoring in his deposition of PW-27 standing disbursed in his presence by the competent authority a sum of money constituted in Ext.PW-14/A- 12 renders bereft of tenacity the deposition of PW-27 of his not signaturing Ext.PW-14/A.12. Even though PW- 28 Balbir Singh admitted his signatures on Ext. PW- 14/A.10. However, he has denied the factum of the entire amount constituted therein standing disbursed in his favour. However, with PW-28 deposing in his concluding part of his cross-examination of accused Kunju Ram probably disbursing Rs.10,000/- in his favour renders contradictory his previous version recorded in his examination-in-chief of his not receiving the entire sum of money constituted in Ext. PW-14/A.10 whereupon an inference arises of his testimony occurring in his examination-in-chief qua the entire amount constituted in Ext. PW-14/A.10 standing not disbursed in his favour loosing its truthfulness. 9. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 10. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned trial Court be sent back forthwith.