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Tolapuri and anr. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 309 and 325 of 1978
Judge
Reported in1984WLN(UC)154
AppellantTolapuri and anr.
RespondentState of Rajasthan and anr.
DispositionAppeal allowed
Excerpt:
.....print on sale deed of accused s and not of b according to director of finger print bureau sale deed executed in favour of accused s--held, there hm cogent reason to set aside concur rent finding that accused s hid direct hand in forging sale deed.;as regards accused shankergiri, there is the evidence of the handwriting expert shri ajcet krishna (pw 6). he is the director of the state fingerprint, bureau, jaipur. shri ajeet krishna was of the opinion that the disputed thumb impressions on ex. p.1 were not of bheekgar but were that of accused shanker giri. since ex. p.1 has been executed in favour of accused shankergiri, it can be well presumed that he had a direct hand in forging sale deed ex. p.1 in his favour. there is a concurrent finding of both the courts below on this..........times. a few days before october 14, 1974, bheekgar learnt that accused shankergiri got the sale deed ex. p 1 in his favour purporting to have been executed by him (bheekgar.)according to this sale deed dated october 9, 1970, bheekgar sold his share in the aforesaid field to accused shanker giri for a sum of rs. 1000/-. it was also got registered. before the sub-registrar, accused tolapuri wrongly identified some person as bheekgar. bheekgar, on learning about this forged sale deed, presented the written complaint ex. p.1 before the chief judicial magistrate, jalore against the revision-petitioners and four others narrating therein all the facts. it was alleged therein that the accused have committed the offence punishable under section 120b, 467, 420 etc. of the penal code. the.....
Judgment:

S.S. Byas, J.

1. Since both these revisions arise out of one and the same judgment of the learned Sessions Judge, Jalore dated October 38, 19/8, they were heard together and are disposed of by a common judgment. The two accused Tolapuri and Shankergiri were convicted under Section 467/34, IPO and each was sentenced to one year's rigorous imprisonment with a fine of Rs. 200/-, in default of the payment of fine to further undergo one month's life imprisonment by the learned Chief Judicial Magistrate, Jalore vide his judgment dated July 4, 1977. The accused went in appeal which was partly allowed. Their convictions were maintained but the term of imprisonment was reduced to six months from that of one year. The accused have now come-up in revision to challenge their conviction and sentence.

2. Brifly stated, the prosecution case is that PW. 3 Bheekgar Swami owns 1/4 share in Aaraji Khasra No. 57 situate in Mauja Posana district Jalore. He was in possession of his share at all the relevant times. A few days before October 14, 1974, Bheekgar learnt that accused Shankergiri got the sale deed Ex. P 1 in his favour purporting to have been executed by him (Bheekgar.)According to this sale deed dated October 9, 1970, Bheekgar sold his share in the aforesaid field to accused Shanker Giri for a sum of Rs. 1000/-. It was also got registered. Before the Sub-Registrar, accused Tolapuri wrongly identified some person as Bheekgar. Bheekgar, on learning about this forged sale deed, presented the written complaint Ex. P.1 before the Chief Judicial Magistrate, Jalore against the revision-petitioners and four others narrating therein all the facts. It was alleged therein that the accused have committed the offence punishable under Section 120B, 467, 420 etc. of the Penal Code. The learned Magistrate forwarded the complaint to the Station House Officer, Jalore under Section 157(3), Cr. PC with directions to register the case and make investigation. The case was eventually registered. During investigation, accused Shankergiri produced the sale deed Ex. P.1. The specifimen thumb impressions of accused Sohangiri were taken during investigation. The sale deed Ex. P 1 as well as the specimen thumb impressions of accused Sohangiri were sent for examination to the Rajasthan Fingerprint Bureau, Jaipur. On examination, it was found that the thumb impressions on Ex. P.1 purporting to be that of Bheekgar were not of that of Bheekgar but that of accused Sohangiri. On the completion of investigation, the police presented a challan against the two accused Shankergiri and Tolapuri in the Court of the Chief Judicial Magistrate, Jalore. The learned Magistrate framed charges under Sections 167, 419/109, 420, 467/120B, IPC against both the accused, to which they pleaded not guilty and demanded the trial. In support of its case, the prosecution examined seven witnesses and filed some documents. In defence, the accused examined three witnesses. On the conclusion of trial the learned Chief Judicial Magistrate found the offence under Section 467/34, IPC established against both the accused Shankergiri and Tolapuri. The charges for the other offences were not taken as proved. The two accused were consequently convicted under Section 467/34, IPC and were sentenced as mentioned at the very out-set.

3. I have heard the learned Counsel appearing for the accused-petitioners and the learned Public Prosecutor. I have also gone through the case file carefully. It would be proper to deal with the case of each accused separately.

4. As regards accused Shankergiri, there is the evidence of the hand writing expert Shri Ajeet Krishna (PW. 6), He is the Director of the State Fingerprint Bureau, Jaipur. He deposed that he examined the disputed thumb impressions on the sale deed Ex. P.1 and compared them with the stacircien thumb impressions of accused Shankergiri on Ex P.5 and Ex P.6. He also compared the thumb impressions on Ex. P 1 with the specimen thumb impressions of Bheekgir on Ex. P.9 and Ex. P 10. Shri Ajeet Krishna was of the opinion that the disputed thumb impressions on Ex. P.1 were not of Bheekgar but were that of accused Shankergiri. The sale deed Ex. P.1 has bean executed in favour of accused Shankergiri. Since Ex. P.1 has been executed in favour of accused Shankergiri, it can be well presumed that he had a direct hand in forging sale deed Ex. P.1 in his favour. There is a concurrent finding of both the courts below on this point. There appears no good and cogent reasons to set-aside this concurrent finding. As such the conviction of accused Shankergiri is proper and calls for no interference. The sentence awarded to him is not at all excessive. His revision has, thus, no force and should be dismissed.

5. Coming to the case of accused Tolapuri, the allegation against him is that he wrongly identified some unknown person as Bheekgar before the Sub-Registrar when the sale deed Ex. P.1 was presented before him for registration. It was vehemently contended by the learned Counsel that the concurrent finding of both the Courts below on this point is wholly erroneous and is based on nil evidence. It was argued that there is nothing on record to show that accused Tolapuri identified a wrong person as Bheekgar. I was taken through the entire evidence recorded in the trial Court. In reply, the learned Public Prosecutor strived his best to sustain the concurrent finding of the two Courts below and submitted that it can be gathered from the evidence that accused Tolapuri had identified a wrong person as Bheekgar. Having gone through the entire evidence, the contention raised by the learned Counsel appearing for accused Tolapuri appears to have considerable force.

6. PW. 2 Rabaksingh is the Patwari of Circle, Posana. He has no; stated anything against accused Tolapuri. PW. 3 Bheekgar also did not depose anything incriminating against this accused. He has simply stated that he was not present when Ex. P.1 was presented for registration be for the Sub Registrar. PW. 4 Chandkhan is the Stamp Vendor who has also not stated anything incriminating against this accused Tolapuri. PW. 5 Narainsingh is the Investigating Officer, whose testimony is of formal nature. PW. 6 Shri Ajeet Krishna is the Fingerprint Expert who has also not deposed anything against this accused. PW. 7 Padamsingh is the Tehsildar before whom the specimen thumb impressions of accused Bheekar Giri and complainant Bheekgar were taken.

7. We are thus left only with the evidence of PW. 1 Mohansingh who is the Sub-Registrar. He deposed that on August 10, 1970, the sale deed Ex. P.1 was presented before him for registration. He deposed that Ex. P.1 purported to have been executed by one Bheekgar (PW. 3) in favour of accused Shankargiri. He did not personally know Bheekgar. The person was identified before him as Bheekgar by one Tolaouri. The witness further stated that he also did not know Tolapuri. Tolapuri was identified by one Achalsingh. He thereafter registered the sale deed. In his cross-examination, he very positively stated that he was unable to identify in Court whether accused Tolapuri appeared before him to identify Bheekgar at the time of the registration of the sale deed Ex. PL It is thus, abudantly clear that the Sub-Registrar Mohan Singh (PW. 1) did not know accused Tolapuri before hand and he was also unable to identify him in the Court during trial. He attested the deed on the assurance of Achal Singh. The signatures of Achahingh are there on sale deed Ex. P.1.

8. Since the evidence of PW. 1 Mohansingh discloses nothing incriminating against accused Tolapuri, it was incumbent on the prosecution to examine Achalsingh. Achal Singh was the only proper person to state whether accused Tolapuri identified some wrong person as Bheekgar before the Sub-Registrar. Unfortunately, the prosecution has not produced Achal Singh in evidence for the reasons best known to them. It is interesting to notice that in the calender of witnesses filed by the prosecution, Achalsingh has not even been shown as a witness.

9. The learned Chief Judicial Magistrate tried to take help from the statement of accused Tolapuri recorded under Section 313, Cr. PC in convicting him. The accused in his aforesaid statement replied in answer to question No. 1 that he had identified only the accused Shankergiri He further stated his aforesaid statement that he did not identify any body as Bheekgar before the Sub-Registrar. From this reply, the learned Chief Judicial Magistrate inferred that accused Tolapuri was present at the time of registration and that was sufficient to seek his conviction. The learned Chief Judicial Magistrate crept into an error in raising such an inference from the reply given by accused Tolapuri in answer to question No. 1. The reply in no way suggests that accused Tolapuri had wrongly identified some person as Bheekgar.

10. The best evidence against accused Tolapuri could be of two persons-namely, the Sub Registrar and Achalsingh. The Sub-Registrar PW 1 Mohansing, as discussed above, has not stated anything incriminating against accused Tolapuri to connect him with the forgery of sale deed Ex. P.4. Had this witness identified accused Tolapuri as the person identifying the wrong person as Bheekgar before him, the matter would have been somewhat different. But that is not so. Unfortunately, the other pesson Achalsingh, as stated above, has to been examined by the prosecution. In these circumstance I find that it is a case of absolutely no evidence against accused Tolapuri, His conviction under Section 467/34. IPC cannot be, therefore, maintained.

11. In present, 1 would add a few words about the investigation. It was carried out in a perfunctory manner. Achalsingh was not cited as a witness. The complaint Ex. P.1 was filed against six persons, one of them is the scribe while the two others are the attesting witnesses and the remaining is the person who has attested the thumb impression on sale deed Ex. P.1 to be that of Bheekgar. For reasons best known to the Investigating Officer, the scribe, the attesting witnesses and the person who attested the thumb impressions on sale deed Ex. P.1 have not been challenged. That shows the complete lack of bonafides on the part of the Investigating Agency. In fact, the real culprits were the scribe, the attesting witnesses and that other was who falsely attested the thumb impression of Bheekgar on Ex. P.1. All these persons have been named in the complaint Ex. P.1 filed by PW. 3 Bheekgar. It leaves the impression that the investigating agency adopted the pick and choose policy and filed the challan only against the two persons while shielding the remaining four.

12. In the result:

(1) The revision filed by accused Shankergiri is dismissed;

(2) The revision accused Tolapuri is allowed. His conviction and sentence under Section 467/34, IPC are set-aside and he is acquitted thereof. He is already on bail and need not surrender. His bail bonds shall stand cancelled, and

(3) The revisions shall stand accordingly disposed of.


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