IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision 632 of 2009 Date of decision: 19.5.2009 Harmail Singh and anr …Petitioners Versus State of Punjab …Respondent Present: Mr JBS Gill, Advocate for the petitioners. Mr Sudhir Nehra, Addl AG Punjab. S.S. SARON, J. This revision petition has been filed against the order dated 27.2.2009 passed by the learned Additional Sessions Judge, Hoshiarpur whereby the appeal filed by the petitioners against the judgment and order dated 24.7.2000 passed by the learned JMIC Dasuya convicting and sentencing the petitioners – Harmail Singh for the offences punishable under Sections 419, 468 and 471 Indian Penal Code (IPC – for short) and Gurdial Singh for the offences under Sections 419 read with 120B IPC; besides under Sections 468 and 471 IPC, has been dismissed. The petitioner – Harmail Singh has been sentenced to RI for various terms i.e. 1 year for the offence under Section 419 IPC and 2 years each for the offences under Sections 468 and 471 IPC respectively. Gurdial Singh – petitioner-2 has been sentenced to undergo 1 year imprisonment for the offences under Section 419 IPC read with Section 120B IPC; besides 2 years each for the offences under Sections 468 and 471 IPC respectively. All the sentences were ordered to run concurrently. 1 Criminal Revision 632 of 2009 The prosecution case is that Surinder Singh and Kulwinder Singh sons of Sohan Singh were owners in possession of land comprised in Khasra No.730 measuring 13 Marlas in village Budhi Pind. They sold 7 Marlas of land to Harbhajan Singh and Amar Singh. Thereafter, Surinder Singh, one of the vendees, went to Germany on 11.9.1986. He came back to India on 10.10.1987. In his absence, a sale deed dated 19.3.1987 was executed with regard to the remaining 6 Marlas of land out of land measuring 13 Marlas in Khasra No.730. The said 6 Marlas was sold in favour of Baba Bhula Wala Trust, Village Budhi Pind through its President – Tulsi Ram Balmik, for a consideration of Rs 1,000/-. The sale deed was executed by Kulwinder singh – co-owner. However, Surinder Singh being abroad was impersonated by Harmail Singh (petitioner-1). Harmail Singh (petitioner-1) signed as Surinder Singh son of Sohan Singh on the said sale deed. Gurdial Singh (petitioner-2) was a marginal witness to the sale deed which was scribed by Karam Singh – Deed Writer. Tulsi Ram signed the sale deed for the vendee – Baba Bhula Wala Trust. One Bhag Singh son of Rulia of village Budhi Pind also signed as a marginal witness to the sale deed. On the complaint of one Dharam Pal son of Beli Ram regarding the impersonation by Harmail Singh (petitioner-1), the present FIR was registered. During investigation, the Passport of Surinder Singh was taken in possession; besides photocopy of the sale deed dated 19.3.1987 and other documents were also taken in possession by the Police. The signatures of Gurdial Singh (petitioner-2) appearing on the sale deed dated 19.3.1987 were compared with his standard signatures. On completion of the investigation, challan was filed against Harmail Singh and Gurdial Singh – the present petitioners. The prosecution examined Patwari Sukhdev Singh 2 Criminal Revision 632 of 2009 (PW1), Inspector Joginder Singh (PW2), HC Gurdev Singh (PW3), complainant – Dharam Pal (PW4), Devinderjit Singh (PW5), Kashmir Singh, an Assistant in the office of SDM Dasuya (PW6), Sh Arvind Sud, Handwriting and Finger Print expert (PW7) and Surinder Singh – co-owner of the land (PW8). Besides, documents were tendered in evidence. During trial, an application was filed on 14.6.1996 for summoning Kulwinder Singh – co-vendor as additional accused. The application was allowed vide order dated 29.1.1997 and Kulwinder Singh appeared on 21.8.1997. Thereafter, fresh charges were framed on 17.9.1997 against the accused. Accused – Kulwinder Singh, however, became absent on 11.10.1997 and could not be arrested. He was declared a PO vide order dated 23.5.2000. On account of Kulwinder Singh being declared as a PO, the learned trial Court proceeded with the case for recording further evidence against the petitioners. After considering the evidence and material on record, petitioner – Harmail Singh was convicted by the trial Court for the offence under Section 419 IPC and sentenced to undergo RI for 1 year; besides to pay a fine of Rs 500/- and in default of payment of fine, to undergo imprisonment for 1 month. Besides, he was also convicted for the offences under Sections 468 and 471 IPC and sentenced to 2 years RI for each of the said offences; besides pay a fine of Rs 1,000/- for each of the offences and in default of payment of fine, to undergo imprisonment for 2 months for each of the offences. Gurdial Singh – petitioner was convicted for the offence under Section 419 IPC read with Section 120B IPC and sentenced to undergo RI for 1 year; besides pay a fine of Rs 500/- and in default of payment of fine, to undergo imprisonment for 1 month. He was also convicted for the offences under Sections 468 and 471 IPC and sentenced to undergo RI for 2 years for each of the said offences; besides to pay a fine of 3 Criminal Revision 632 of 2009 Rs 1,000/- for each of the offence and in the event of default of payment of fine, to further undergo imprisonment for 2 months for each of the offences. All the sentences were ordered to run concurrently. In appeal, the learned Additional Sessions Judge, Hoshiarpur held that the evidence as discussed in his order proved it beyond doubt that petitioner – Harmail Singh impersonated as Surinder Singh whereas petitioner – Gurdial Singh falsely identified Harmail Singh as Surinder Singh. There was, thus, no illegality or infirmity with the judgment of conviction as recorded by the learned trial Court. No arguments were addressed with regard to the sentence awarded to the accused-petitioners. It was observed that the sentence awarded to the accused-petitioners was not on the higher side. Accordingly, the appeal of the petitioners was dismissed. Learned counsel for the petitioners has contended that in fact Surinder Singh had appeared in the case as PW3, after his brother – Kulwinder Singh who had been declared a PO was arrested and in his statement while appearing as PW3 he stated that he had signed the sale deed on 19.3.1987 which was correct. Therefore, it is submitted that the sale deed having been accepted to be valid by Surinder Singh who is the owner of the land, the petitioners are liable to be acquitted. In response, learned counsel for the State submits that the sale deed aforesaid could not have been executed by Surinder Singh as he was admittedly abroad during the period from 11.9.1986 to 10.10.1987. The sale deed in which Harmail Singh (petitioner-1) impersonated as Surinder Singh could not have been executed by Surinder Singh on 19.3.1987. After giving my thoughtful consideration to the contentions of learned counsel for the parties, it may be noticed that the Passport of Surinder Singh is on record as Ex P2. The said Passport has been perused 4 Criminal Revision 632 of 2009 by the learned counsel for the petitioners and he has been unable to show that Surinder Singh was in India on 19.3.1987 so as to execute the sale deed on 19.3.1987. The learned lower appellate Court even has considered this aspect and has held that Surinder Singh was abroad during the period from 11.9.1986 to 10.10.1987. During this period he (Surinder Singh) was in Germany. In the circumstances, it was held to be proved that Surinder Singh was not in India on 19.3.1987 from which it could be said that the sale deed had been executed by him on 19.3.1987. As such, the findings recorded by the learned trial Court and affirmed by the lower appellate Court call for no interference. Learned counsel for the petitioners has then contended that keeping in view the facts and circumstances of the case, the petitioners may be released on probation as they have faced the travails of the prosecution and the trial since 1987 when the FIR was registered on 15.11.1987. Learned counsel for the State submits that keeping in view the forgery committed, the petitioners are not liable to be released on probation. After giving my thoughtful consideration to the matter, it may be noticed that Kulwinder Singh and Surinder Singh are real brothers. Kulwinder Singh is a signatory to the sale deed dated 19.3.1987 which he executed in favour of Baba Bhula Wala Trust through its President – Tulsi Ram Balmik. Surinder Singh was abroad at that time and Harmail Singh (petitioner-1) impersonated as Surinder Singh and Gurdial Singh (petitioner-2) signed as a marginal witness. Later, Surinder Singh also came and affirmed the sale deed dated 19.3.1987. The sale deed qua the share of Kulwinder Singh of land measuring 3 Marlas can be said to be valid. The dispute remains about the remaining 3 Marlas only, which Surinder Singh has accepted to have signed the sale deed but is not proved to have been 5 Criminal Revision 632 of 2009 signed by him. In any case, he is not aggrieved against the same and he has stated as such while appearing as PW3 in the case against Kulwinder Singh. Kulwinder Singh, it is submitted by learned counsel for the petitioner, has since died. The custody certificate that has been filed in Court shows that the petitioners have undergone 1 month and 20 days of imprisonment till 26.4.2009. Till date, they have undergone a month more. As per the custody certificate which has been filed on affidavit, there is no other case pending against the petitioners. In the facts and circumstances of the case, it would be just and expedient that the petitioners are granted the benefit of probation. Accordingly, while maintaining the conviction, the sentence of imprisonment of the petitioners shall remain suspended and the petitioners are ordered to be released on probation of good conduct for a period of 2 years on their furnishing personal bond in the sum of Rs 10,000/- each with one surety in the like amount each, to the satisfaction of the trial Court, to appear and receive the sentence as and when called upon to do so and during the said period of 2 years, the petitioners shall keep peace and be of good behaviour. The fine that has been paid by the petitioners shall be treated as costs of the proceedings. The probation bonds shall be furnished and the costs of the proceedings if not already deposited, shall be deposited within a period of one month from the date of receipt of a certified copy of this order. On their doing so, the petitioners shall be released from custody. 19.5.2009. ( S.S.SARON ) ASR JUDGE 6 Criminal Revision 632 of 2009 7