P.D. Kudal, J.
1. This State appeal is directed against the judgment of the learned Addl. Sessions Judge, Jaipur City, Jaipur dated 20th October, 1971.
2. The brief facts of the case which are relevant for the disposal of this appeal are that the Deputy Collector Jagir, Jaipur lodged a report with the police on 24th February, 1964 that Jagir Bonds amounting to Rs. 2,400/- were to be delivered to one Gyarsi Lal son of Nand Lal of Kanwarpura; but it appears that someone else having impersonated himself has obtained these bonds from the office on 12th April, 1963. A case was registered and during investigation it appeared that Jagir bonds amounting to Rs. 2,400/- were prepared in the name of Gyarsi Lal and as Gyarsi Lal was illiterate he used to take help from the accused-respondent Mohan Lal. It is alleged that the accused-respondent Mohan Lal produced Madan Lal son of Ram Nivas who alleged himself to be Gvarsi Lal and took away these Jagir bonds from the office of the Deputy Collector Jagir. It is contended that Chhagan Lal son of Ram Kumar identified him as Gyarsi Lal. Madan Lal and Chhagan Lal were absconding and as such the challan was submitted against the present accused respondent Mohan Lal under Sections 419, 420 and 416 read with Sections 468 and 471, I.P.C.
3. The accused pleaded not guilty and claimed trial.
4. On behalf of the prosecution the statements of Shri B.B. Kashyap, PW/1, Handwriting Expert, Bhom Raj PW/2, Gyarsi Lal PW/3 and Tara Chand PW/4 were recorded.
5. Shri B.B. Kashyap PW/1, Handwriting Expert, stated that he came to the conclusion that P/1 and P/2 vide Ex. P/1 were written by the same person who wrote C1 to C2, the specimen handwritings vide Ex. P/2 to Ex. P/7.
6. Bhom Raj PW/2 stated that he knows Gyarsilal and the accused Mohan Lal, both. As Gyarsi Lal was illiterate, he used to take assistance from Mohan Lal. Bhom Raj denied that he had signed as a witness identifying Gyarsi Lal in connection with taking away of the bonds vide Ex. P/25.
7. Gyarsi Lal PW/3 has stated that the accused Mohan Lal and one Banshi Dhar used to look after his work in connection with the bonds. He has not received the consideration of the bonds. He has further contended that he did not know Tara Chand. He also denied his signatures on Ex. P/27 to Ex. P/36 through which those bonds were transferred to Tara Chand.
8. Tara Chand PW/4 stated that he deals in the sale and purchase of Jagir bonds. He admitted that through Ex. P/27 to Ex. P/36, he had purchased Jagir bonds from Gyarsi Lal, but he did not personally know the seller. According to him, accused Mohan Lal identified Gyarsi Lal to him.
9. After taking into consideration the entire evidence on record, the learned trial Court came to the conclusion that the prosecution has not succeeded in bringing the guilt home to the accused and, as such, the accused respondent was acquitted of all the charges by the learned trial Court on 30th October, 1971.
10. It is against this order of acquittal that on 1st February; 1972. During the course of arguments on 6th February, 1980, the matter remained part heard and was adjourned to 7th February, 1980. On this date, the learned public prosecutor submitted an application under Section 391, Cr. P.C., 1973, praying that the investigating officer may be summoned. This application has been resisted by the accused-respondant on the contention that; firstly, the application had been filed at an extremley belated stage; and secondly; that it would not be conducive in the interests of justice to entertain this application at this stage.
11. On behalf of the prosecution, it has been contended that the accused-respondent Mohan Lal was acquitted by the learned trial Court on a very technical ground and a person of his type is dangerous to society as he betrayed the confidence for whom he was working. It was further contended that in the interest of justice the investigating officer should be summoned as a witness and the specimen signature Ex. P/2 to Ex. P/7 should be got proved. On behalf of the prosecution reliance has been placed on: Rameshwar Prasad v. State of W.B. AIR 1965 SC 1887 Raghunandan v. State of U.P. 1974 SCC (Cr.) 355 Rule B. Mithani v. State of Maharashtra : 1971CriLJ1188 Jamatraj v. State of Maharashtra : 1968CriLJ231 .
12. On behalf of the accused-respondent on the ground of delay reliance has been placed on: Sundt. & Remembrancer of L.A. v. Ishwar Chandra Jana 1971 Cr. L.J. 163 Dhanni v. State of Rajasthan 1973 WLN 152.
13. It has been further contended on behalf of the accused-respondent that if there are lacunas in the prosecution case the appellate Court while dealing with an appeal against the order of acquittal could not assist the prosecution in filing up the lacunas, Reliance has been placed on: Kashmira Singh v. State AIR 1965 J & K 37 Abinash Chandra v. Bimal Krishna AIR 1963 SC 316 Bir Singh v. State of U.P. : 1978CriLJ177a .
14. We have very carefully considered the contentions of the learned Public Prosecutor and the learned Counsel for the accused-respondent. The offence relates to the month of April 1963, and the accused respondent was acquitted on 30th October, 1971 after trial which lasted about 7-8 years. The appeal before this Court was filed on 1st February, 1972, and the application for summoning Investigating Officer has been filed on 7th February, 1980. This is undoubtedly true that the appellate Court exercises all the powers which are necessary for the enhancement of justice. The Court has to view the prosecution and the defence side in equanimity and while calling for an additional evidence against the order of acquittal care has to be taken that the accused is not prejudiced and that the prosecution is not assisted in getting the lacunas filled in. Normally speaking, it was the duty of the prosecution to have at least examined the investigating officer. The very fact that the investigating officer has not been examined causes a very serious lacuna on the side of the prosecution. In the instant case, the admitted specimen signatures of the accused-respondent were attested by the Magistrate. The Magistrate was not available to the prosecution as he had gone abroad. The Magistrate had attested these signatures on the identification of the investigating officer. Under these circumstances, the examination of the investigating officer was mandatory in this case. We have absolutely no hesitation in holding that the prosecution has left a big lacuna in not examining the investigating officer.
15. More over, in the facts and circumstances of the present case that the appeal has been pending in this Court for the last 8 years, the prosecution did not think of examining the investigating officer and it was during the course of arguments on 6th February, 1980 when the Public Prosecutor felt that the entire appeal is likely to fail he moved an application on 7th February, 1980 taking advantage of the fact that the appeal remained part heard. Under these circumstances, we are of the opinion that it would not be conducive in the interests of justice to allow the prosecution to examine the investigating officer at this stage. As stated earlier, it was the duty of the prosecution to have examined the investigating officer even otherwise.
16. Under these circumstances, the application filed by the learned Public Prosecutor for summoning and examining the investigating officer is hereby rejected.
17. Corning to the merits of the case, we are very sorry to observe that the prosecuting agency has not conducted the case in the right earnest. The disputed signatures were held to be resembling with the signatures of the accused respondent. The conviction of the accused-respondent could not be sustained only on the basis of the statement of the hand writing expert in a case where the accused even challenges the admitted signatures. The Magistrate could not be produced as he had gone abroad. The investigating officer who had identified the accused respondent was not produced for the reasons best known to the prosecution. Under these circumstances, there is no legal evidence on record on the basis of which it could be said that the specimen signatures were those of the accused-respondent. The report of the handwriting expert in the presence of such set of circumstances could not be relied upon.
18. Moreover, this is an appeal against the order of acquittal. The offence was committed as early as 1963 and the matter has been hanging for the last 17 years. Under these circumstances, we do not feel inclined to interfere on the appellate side against an order of acquittal.
19. Before parting with this appeal we would definitely like to observe that the prosecuting agency should be toned up, and such lacuna should be avoided to reoccur in criminal case where the persons who have definitely committed offence are set scot-free only because of technical lacuna.
20. For the reasons stated above, there is no force in the state appeal which is hereby dismissed.