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2024 DIGILAW 14 (PNJ)

Rajeev Kumar v. State of UT Chandigarh

2024-01-04

HARPREET SINGH BRAR

body2024
Judgment Mr. Harpreet Singh Brar, J. The instant revision petition has been preferred against the judgment dated 26.10.2023 passed by learned Additional Sessions Judge, Chandigarh whereby the judgment of conviction and order of sentence dated 15.12.2017 passed by learned Judicial Magistrate Ist Class, Chandigarh in FIR No. 309 dated 05.10.2013 under Sections 420, 467, 468, 471 read with Section 511 of the IPC registered at Police Station Sector 36, Chandigarh, has been upheld. The petitioner has been sentenced as under: Sr. No. Offence under Section Punishment 1. 420 read with 511 of the IPC Rigorous Imprisonment of 2 years and fine of Rs. 500/-, in default thereof simple imprisonment of 2 months. 2. 467 of the IPC Rigorous Imprisonment of 2 years and fine of Rs. 500/-, in default thereof simple imprisonment of 2 months. 3. 468 of the IPC Rigorous Imprisonment of 2 years and fine of Rs. 500/-, in default thereof simple imprisonment of 2 months. 4. 471 of the IPC Rigorous Imprisonment of 2 years and fine of Rs. 500/-, in default thereof simple imprisonment of 2 months. FACTUAL BACKGROUND 2. The facts, in brief, are that Rajeev Kumar-petitioner furnished bail/surety bonds in case titled ‘State versus Gurpreet Singh’ bearing FIR No. 429 dated 22.08.2013 under Sections 406, 498-A of the IPC for accused Gurpreet Singh, who was lodged in jail. The petitioner furnished surety bonds along with one affidavit, fard jamabandi, application regarding verification of property containing a report of Tehsildar (West) Ludhiana and a copy of his voter identity card. The complainant-Mewa Singh, who was a Reader in the Court of Judicial Magistrate Ist Class, Chandigarh, got suspicious of the documents furnished and enquired about their veracity. Upon his asking, the petitioner admitted that the above mentioned papers were forged. The complainant informed the Presiding Officer, who further authorised him to take necessary action in accordance with law and an FIR came to be registered against the present petitioner. 3. During the course of the investigation, statements were recorded under Section 161 of the Cr.P.C. and disclosure statement of the petitioner was also recorded, followed by presentation of the challan. On finding a prima facie case against the petitioner, charges under Section 420, 467, 468, 471 read with 506 of the IPC were framed against him to which he pleaded not guilty and claimed trial. 4. On finding a prima facie case against the petitioner, charges under Section 420, 467, 468, 471 read with 506 of the IPC were framed against him to which he pleaded not guilty and claimed trial. 4. The prosecution examined as many as 9 witnesses to prove its case. The statement of the petitioner under Section 313 Cr.P.C. was recorded in which he pleaded false implication but did not lead any evidence in his defence. Subsequently, the petitioner was convicted by the learned trial Court vide judgment dated 15.02.2017. Aggrieved by the judgment of conviction, the petitioner approached the learned lower Appellate Court, where his appeal was also dismissed vide judgment dated 26.10.2023. CONTENTIONS 5. Learned counsel for the petitioner vigorously contends that both the learned Courts below have failed to consider that the Investigating Officer was not made available for cross-examination which jeopardises the entire investigation. Further, the witnesses produced by the prosecution failed to prove that the alleged forged documents were prepared by the petitioner. The handwriting and signatures on the alleged forged documents were not compared with the standard handwriting and signature of the petitioner. Moreover, neither Gurpreet Singh, beneficiary of the bail, nor his advocate were examined to establish the case of the prosecution. Learned counsel further contends that the petitioner was asked to stand surety for Gurpreet Singh and was unaware of the documents attached with the bail bonds. 6. Per contra learned State counsel submits that sufficient material is available on record to prove the complicity of the petitioner in the alleged incident and both the Courts below have rightly convicted the petitioner after taking into consideration all the facts and circumstances of the case and as such, warrants no interference. OBSERVATION AND ANALYSIS 7. Having heard the learned counsel for the parties and after perusing the record of the case, it transpires that PW3- ASI Gurmail Singh, Investigating Officer of the case was not cross-examined. 8. A Co-ordinate bench of this Court in Balwant Singh v. State of Haryana 2007 (4) RCR (Criminal) 927 has held that non-examination of the Investigating Officer would be fatal to the case of the prosecution. Speaking through Justice A.N. Jindal, the following was observed: “8. ...Having deliberated over the aforesaid contentions, I find some substance in the same. 8. A Co-ordinate bench of this Court in Balwant Singh v. State of Haryana 2007 (4) RCR (Criminal) 927 has held that non-examination of the Investigating Officer would be fatal to the case of the prosecution. Speaking through Justice A.N. Jindal, the following was observed: “8. ...Having deliberated over the aforesaid contentions, I find some substance in the same. I have the testimony of Shakti Singh complainant (PW2) alone to unfold the prosecution version, but the same does not find corroboration from any other source. The best evidence to corroborate the testimony of Shankti Singh complainant (PW2) could have been ASI Ram Kumar Investigating Officer, but surprisingly he was not examined. Admittedly, there is no corroboration to the testimony of Shakti Singh who could be dubbed as an interested witness due to lack of corroboration. The Investigating Officer was the material witness to lend corroboration who had visited the place of occurrence; seen the skid marks of the 0-es; prepared the site plan of the place of occurrence; got the place of the occurrence and body photographed; examined the witnesses and made visual observations about the occurrence. He could explain the proceedings of every stage of the investigation. Thus, his non-examination materially affects the case. Certainly, it has been invariably observed that the Investigating Officer being not an eye witness, his non examination could not be fatal to the prosecution, but, where corroboration is lacking and material documents including arrest of the accused, driving licence of the accused, disclosure statements, recoveries memos and the visual observations regarding position of vehicles at the spot are to be proved, then certainly, his testimony could be treated as important piece of evidence and in the absence of any other corroboration, his evidence could be given importance.” A three Judge bench of the Hon’ble Supreme Court in Nageshwar Sh. Krishna Chobe v. State of Maharashtra, AIR 1973 SC 165 , speaking through Justice I.D. Dua, made the following observations: “8. ...The Investigating Officer unfortunately did not care to have taken the photographs of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. ...The Investigating Officer unfortunately did not care to have taken the photographs of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellant’s guilt in the criminal trial.” A three Judge bench of the Hon’ble Supreme Court in Lahu Kamlakar Patil and Another versus State of Maharashtra 2013 (6) SCC 417 , speaking through justice Dipak Misra has held as follows: “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, 1996 (1) RCR (Criminal) 650 : (1996) 2 SCC 317 this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, 2000 (3) RCR (Criminal) 217: (2000) 9 SCC 153 , it has been opined that when no material contradictions have been brought out, then non- examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, 2001 (2) RCR (Criminal) 631 : (2001) 6 SCC 407 , Rattanlal v. State of Jammu and Kashmir (2007) 13 SCC 18 and Ravishwar Manjhi and others v. State of Jharkhand (2008) 16 SCC 561 , has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.” (emphasis added) CONCLUSION 9. In view of the facts and circumstances of the case and the settled law, this Court is of the considered view that in the absence of cross-examination of the Investigating Officer to prove the alleged documents completely suffocates the case of the prosecution. Furthermore, neither were the handwriting and signatures of the petitioner on the alleged forged documents compared to his standard handwriting and signatures nor were Gurpreet Singh-accused or his advocate examined. In view of the discussion above, drawing an adverse inference against the prosecution is inevitable. Therefore, the present revision petition is allowed. 10. The judgment dated 26.10.2023 passed by learned Additional Sessions Judge, Chandigarh and the judgment of conviction and order of sentence dated 15.12.2017 passed by learned Judicial Magistrate 1st Class, Chandigarh are set aside. The petitioner stands acquitted of the charges framed against him. Pending miscellaneous application(s), if any, shall also stand disposed of.