IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 560 of 1996 Date of decision : July 31, 2009 Balbir Singh ....Petitioner versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Bhoop Singh, Advocate, for the petitioner Mr. Sidharth Sarup, AAG, Haryana L.N. Mittal, J. (Oral) Balbir Singh has filed this revision petition aggrieved by his conviction and sentence recorded by the courts below. Prosecution case is that in civil suit No. 28/1 of 1985, titled Dharam Chand versus Nafe Singh and another, two affidavits dated 18.9.1985 and 21.9.1985 allegedly sworn by the petitioner were filed and the said affidavits were contradictory. Learned Additional Senior Sub Judge, Gohana after making inquiry filed complaint under section 340 of the Code of Criminal Procedure for prosecution of the petitioner for offence under section 193 IPC. After trial, learned Judicial Magistrate Ist Class, Gohana vide judgment and order dated 3.2.1995 convicted the petitioner under section 193 IPC and sentenced him to undergo rigorous imprisonment Criminal Revision No. 560 of 1996 -2- for two years and to pay fine of Rs 3000/- and in default thereof to undergo further rigorous imprisonment for six months. In appeal preferred by the petitioner, learned Additional Sessions Judge, Sonepat while maintaining conviction of the petitioner reduced the sentence from rigorous imprisonment of two years to rigorous imprisonment for six months while maintaining the fine amount of Rs 3000/- and in default thereof to undergo further rigorous imprisonment for two months. Feeling aggrieved, the petitioner has preferred this revision petition. I have heard learned counsel for the parties and perused the case file including the records of the lower court. Affidavit Ex. P3 dated 18.9.1995 was sworn before Mr. Sri Yans Jain, Oath Commissioner on identification of Mr. Mahabir Malik, Advocate PW4. Affidavit dated 21.9.1985, Ex. P2 has also been attested by same Oath Commissioner on identification by Mr. Vinod Aggarwal, Advocate PW3. Vinod Aggarwal and Mahabir Malik while appearing in the witness box stated that they had identified deponent Balbir Singh accused and thereupon the aforesaid affidavits were attested by Mr. Sri Yans Jain as Oath Commissioner. Learned counsel for the petitioner vehemently contended that while affidavit Ex. P3 dated 18.9.1995 bears the certification of the Oath Commissioner that the said affidavit was sworn before him by the deponent but there is no such certification on the other affidavit dated 21.9.1985, Ex. P2 which has simply been attested by the Oath Commissioner and therefore, affidavit Ex. P2 cannot be said to be an affidavit. There is considerable merit in the contention. Vinod Aggarwal PW3 and Mahabir Criminal Revision No. 560 of 1996 -3- Malik PW4 have not stated that these affidavits were sworn in their presence by the petitioner before the Oath Commissioner. These two witnesses have simply stated that these two affidavits were attested by the Oath Commissioner on their identification. They have also stated that these affidavits were signed by the petitioner. However, there is no evidence to depict that affidavit Ex. P2 was sworn before the Oath Commissioner, although affidavit Ex. P3 can be said to have been sworn before the Oath Commissioner as per his certification. In the absence of similar certification of affidavit Ex. P2 that the same had been sworn by the petitioner before the Oath Commissioner, it cannot be said that affidavit Ex. P2 was, in fact, sworn or affirmed on oath by the petitioner. Any affidavit becomes affidavit when it is sworn before the competent authority authorised to administer oath to the deponent. In this case this essential ingredient of affidavit is missing in the case of affidavit Ex. P2. It has to be noticed here that Sri Yans Jain, Advocate who attested these affidavits as Oath Commissioner has also not been examined as witness as he had since left practicing at Gohana as per reports on summons issued to him many times in the case as revealed by perusal of the trial court file. If Sri Yans Jain had stated in the witness box that affidavit Ex. P2 had also been sworn before him, the position might have been different. Presently, there is no evidence on record that affidavit Ex. P2 was affirmed on oath or sworn by the petitioner. In view of this technical defect, benefit has to be extended to the petitioner. In view of the aforesaid, the instant revision petition is allowed and judgment and order dated 3.2.1995 of learned Judicial Magistrate Ist Criminal Revision No. 560 of 1996 -4- Class, Gohana as affirmed in appeal by learned Additional Sessions Judge, Sonepat vide judgment dated 22.7.1996 are set aside and the petitioner is acquitted of the charge against him giving him benefit of doubt. The petitioner is on bail. His bail bonds shall stand discharged. ( L.N. Mittal ) July 31, 2009 Judge 'dalbir'