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2017 DIGILAW 231 (MP)

Sonelal v. State of M. P.

2017-02-13

J.P.GUPTA

body2017
JUDGMENT : J.P. Gupta, J. 1. This jail appeal has been tiled against the impugned judgment of conviction and sentence dated 31.10.2012 passed by First Additional Sessions Judge. Katni, in Sessions Trial No. 136/2012, whereby the appellant has been convicted for the offence punishable under sections 170, 319, 420, 466 and 463 of the I.P.C. and in view of section 71 of the I.P.C. no separate sentence has been passed for the offence under sections 170, 419 and 466 instead, for die offence under section 420 I.P.C. sentenced to R. I. For 5 years and fine of Rs. 1,000/- and for the offence under section 468 I.P.C. sentenced to R. I. for 5 years and fine of Rs. 1,000/-with default stipulation. 2. In brief the relevant facts of the case are that the appellant accused personated himself before complainant Ram Naresh Choudhary and 13 other persons that he was posted as a Additional Collector Katni and with the intention to cheat them fraudulently took Rs. 11,500/- from each of them on the pretext to manage Govt. Service in the Collectorate Office Umaria and thereafter handover them forged appointment orders and identity cards. When complainant and other persons went to the office of the Collectorate, Umaria, they were informed that the appointment letters and identity cards are forged. Thereafter, they made complaint at Police Station Barhi where Crime No. 114/11 was registered against the appellant. The appellant was arrested on 15.5.2011 and some documents and articles were seized from his possession. 3. After investigation charge-sheet was filed before the J.M.F.C. Katni. After taking the cognizance, the J.M.F.C. Katni, committed the case to the Court of Sessions, Katni. 4. Before the Court of Sessions, the accused was tried for the offence punishable under sections 170, 171, 419, 420, 466, 468 and 474 of the I.P.C. after trial learned Additional Sessions Judge acquitted the appellant for the offence punishable under sections 171, 473 and 474 I.P.C. and convicted and sentenced him, as mentioned above. 5. Learned Counsel appearing on behalf of the appellant submitted that the conviction and sentence passed by the learned Trial Court is contrary to law. The learned Court below has not appreciated the evidence in right perspective. The prosecution has not produced handwriting expert as a witness before the Court even though the learned Court below has considered the report of handwriting expert. The learned Court below has not appreciated the evidence in right perspective. The prosecution has not produced handwriting expert as a witness before the Court even though the learned Court below has considered the report of handwriting expert. No evidence has been produced to establish the fact that the so called forged document, le., appointment orders and identity cards were not issued by the Collector office of Umaria and the statements of the witnesses are full of material contradictions. They are not reliable, hence conviction of the appellant is not sustainable. Similarly, the sentence is also very harsh. Looking to the facts and circumstances of the case, for every offence separate sentence is not required and it should be executed concurrently. Hence, the impugned order of conviction and sentence be set aside and the appellant be acquitted from the charge. 6. Learned Panel Lawyer opposed the contention advanced by learned Counsel for the appellant and prayed for dismissal of the appeal stating that the finding of the learned Court below is based on cogent evidence and the sentence awarded is just and proper, which does not require any interference (sic). 7. Having considered the contention advanced by learned Counsel for the parties and on perusal of record it is found that Ramnaresh Choudhary, P.W. 1, Suresh Choudhaiy, P.W. 2, Premlal Choudhary, P.W. 3. Vijay Patel, P.W. 4 and Santram, P.W. 5 have categorically stated that the appellant accused came to their place and personated himself as an Additional Collector and promised to manage government services for them in Collectorate office, Umaria and fraudulently took Rs. 11,500/-from each of them and thereafter gave them appointment orders and identity cards, Articles A to F. Thereafter when they went to Collectorate Umaria it revealed that the documents Articles A to F were forged and the person concerned was also not posted on the post of Additional Collector and he has cheated them. Thereafter, they reported the matter to the police by submitting written complaint, Ex. P-l to Police Station Barhai. J. P. Dubey, P.W. 10, Assist. Sub-Inspector has stated that on the basis of written complaint F.I.R. Ex. P-5 was written on 14.5.2011 at Police Station Barhai and documents, Ex. A to F were seized and seizure memo, Ex. P-2 was prepared. 8. The aforesaid prosecution evidence has remained unimpeachable during. the cross examination. P-l to Police Station Barhai. J. P. Dubey, P.W. 10, Assist. Sub-Inspector has stated that on the basis of written complaint F.I.R. Ex. P-5 was written on 14.5.2011 at Police Station Barhai and documents, Ex. A to F were seized and seizure memo, Ex. P-2 was prepared. 8. The aforesaid prosecution evidence has remained unimpeachable during. the cross examination. There is nothing on record to disbelieve or discard the aforesaid evidence. On the basis of aforesaid evidence prosecution has succeeded to prove the fact that the appellant knowing that he did not hold the office of Additional Collector, falsely personated before P.W. 1 to P.W. 5 that he holds that post of Additional Collector, promised them to provide employment in the Collectorate Office Umaria and induced them to deliver? Rs. 11,500/- each to him and received the same illegally, thereby cheated them and the aforesaid act of the appellant comes within the purview of offence punishable under sections 170, 419 and 420 I.P.C. Therefore, the conviction of the appellant under the aforesaid sections is just and proper and does not require any interference, hence it is affirmed. 9. So far as the evidence relating to offence punishable under sections 466 and 468 of the I.P.C. is concerned, the conviction of the appellant is based mainly on the report of State Examiner of Questioned Documents, Govt, of M.P., Bhopal, Ex. P-44, and the statements of Investigating Officer, J. P. Dubey, P.W. 10 and Constable Indrajeet Singh P.W. 11 and Constable Vijay Singh, P.W. 13, who have stated that standard handwritings of the appellant were taken on the aforesaid documents, Ex. P-9 to P-39 and the same along with the document and Articles A to F were send to State Handwriting expert and the Handwriting Expert after examining the documents prepared report, Ex. P-44. According to the report, the documents. Articles A to F have been prepared by the same person who has written Exs. P-9 to P-39. On the aforesaid basis, learned Court below has come to the conclusion that the documents, Articles A to F were prepared by the appellant fraudulently and used them as a genuine and handed over to Ramnaresh Choudhary, P.W. 1, Suresh Choudhary, P.W. 2, Premlal Choudhary, P.W. 3, Vijay Patel, P.W. 4 and Santram, P.W. 5 with an intention to cheat them. 10. 10. In view of this Court, the aforesaid finding of the learned Court below is not correct as the Handwriting Exert report, Ex. P-44 cannot be considered without formal proof by the concerned handwriting expert or admission of the report by the appellant as it does not come within the purview of the documents prescribed under section 293 of the Cr. P.C. In this regard, reference of Hon’ble the Apex Court judgment in the case of State of Maharashtra v. Damu, S/o Copinath Shinde and others, (2000) 6 SCC 269 .would be befitted. Para 40 of the said judgment is relevant, which is quoted as under :- “40. Ex. 64 is only the opinion of the Assistant State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of section 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Ex. 64 alone”. 11. Similarly, this Court in the case of Murlidhar Agarwal v. The State of M.P., 2011 Cr. LJ 3478.has held that “sub-section (4) of section 293 only applies to Director of the Finger Print Bureau and if it is authored by other than the Bureau, then it could not be used in evidence under the aforesaid sections. 12. In the present case also, from the description of the post of Examiner it. cannot be gathered whether his office would fall within the purview of section 293 of the code, therefore, without examining the such a situation, if Ex. P/44 is not taken into consideration, then he is no evidence against the appellant in connection with the charge under sections 466, 468 I.P.C. and, therefore, conviction of the appellant under the aforesaid section is not sustainable. Accordingly, it is held that the conviction of the appellant for the offence under section 466 and 468 of the I.P.C. is bad in law. 13. In view of the aforesaid discussion, this appeal is partly allowed. The conviction of the appellant for the offence under section 170, 419 and 420 of the I.P.C. is affirmed and conviction for the offence under sections 466 and 468 of the I.P.C. is set aside. 14. 13. In view of the aforesaid discussion, this appeal is partly allowed. The conviction of the appellant for the offence under section 170, 419 and 420 of the I.P.C. is affirmed and conviction for the offence under sections 466 and 468 of the I.P.C. is set aside. 14. So for as propriety of sentence is concerned, the learned Trial Court after considering the provisions of section 71 of the I.P.C., for the offence punishable under sections 170, 419 and 420 I.P.C. only under section 420 of I.P.C. sentenced the appellant to suffer R. I. for 5 years and fine of Rs. 1,000/- and in default further suffer S. I. of 30 days. In this case, the appellant is in custody since 15.5.2011, hence he has already undergone the aforesaid term of imprisonment. Therefore, any modification or change in the sentence would have no meaning. Therefore, the sentence is also affirmed and it is directed that if the appellant is not required in any other offence, he be released forthwith, if he is in jail. A copy of this order be sent to the Trial Court for information and compliance.