IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.170 of 2003 Date of decision: 19th June, 2010. Jeevan Singh … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.Rakesh Jaswal, Advocate. For the Respondent: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The petitioner has been convicted for offences under Sections 170 and 420 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.2,000/- and in default of payment of fine simple imprisonment for one month under Section 170 IPC and rigorous imprisonment for two years and fine of Rs.3,000/- under Section 420 IPC. 2. The prosecution case in brief is that on 3.2.1997 a telephonic message was received at Army 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Cantonment, Dharamshala from one Mr.B.M.Sudhir Sood, who stated that he is Secretary, M.S. Branch, Army Headquarter, Delhi. He instructed that Captain Sood, ADC to Chief of Army Staff, General Chaudhary is visiting Kangra and would be going to Jawalamukhi temple and Palampur etc. The Army Authorities in the Cantonment were accordingly directed to provide one vehicle at Kangra Bus Stop on 4.2.1997 at 6.30 A.M. in the morning for Captain Sood. This vehicle was put at his disposal for utilization. 3. On 4.2.1997, a Jonga Jeep of Army Cantonment, Dharamshala, driven by Naik Narayan Bahadur Gurang (who has not been produced in evidence) alongwith Subedar Bhim Bhadur Thappa PW-18 were deputed to attend “Captain Sood”. They reached Kangra Bus Stand at the appointed time, whereupon the petitioner, impersonating himself as “Captain Sood”, asked them to drive to Haripur Santoshi Mata Temple. On his way, he visited Railway Station, Kopar Lahar where he spent about 15 minutes and met the Station Master Abdul Rasheed, PW-8. He is alleged to have taken a sum of Rs.200/- and a jacket from him. He then visited the house of one retired Subedar Kamlesh Kumar, PW-1, of Haripur and introduced himself as Captain Mankotia. Thereafter he proceeded towards the temple at Haripur. 4. It is then alleged that he visited the house of retired Honorary Captain Jaswant Singh of village Sakri, PW-2, and introduced himself as Captain 3 Jasrotia. From there he proceeded to the house of Lata Devi, PW-11, of Nagrota Surian where he is purported to have assured her that he would get her husband transferred to Pathankot. Thereafter he went to Jarot Koti Memorial Public School, where he met PW-4 Kanta Devi, who is a teacher and introduced himself as Captain Chaudhary and then proceeded to another School where he met his nephew Budhi Singh. 5. The episode did not end here. He visited the house of PW-6 Rakesh Pathania, resident of village Manjiar, where he became Captain Guleria and cheated his brother PW-10 Subhash Singh of Rs.200/-. Subsequently, he went to the house of Ashwani Kumar, PW-15 and offered that he would get him recruited in the Army which offer/promise was made in the presence of Ashwani’s brother PW-16 Purshotam. He is also stated to have assured some persons that he would get them recruited in the Indian Army for which recruitment was being held on 16.2.1997 at Ray. He took money from different people at different times disclosing them his rank and designation as an army officer and promised/assured them of success in the venture promised by him. 6. On 5.2.1997 he left the Army Jeep and proceeded towards Nurpur-Jassur Road by Maruti Van bearing No.HIK 4269. The army personnel accompanying him became suspicious and a complaint Ex.PW-18/A was lodged by Bhim Bahadur Thappa PW-18 with the police, on 4 the basis of which First Information Report Ex.PW-9/B was recorded at Police Station, Dharamshala. The case was investigated by Sub Inspector Mohinder Singh, PW- 17, who seized documents Ex.P-1 to Ex.P-10 vide seizure memo Ex.PW-13/A. 7. At this juncture the complaint PW-18/A, which is the foundation of the case, may be considered. It is reproduced verbatim:- “24500/7/Q 2/5 GR(FF) C/O 56 APO 05 Feb 97 Superintendent of Police Kangra at Dharamshala FIRST INFORMATION REPORT IN RESPECT OF AN IMPOSTER PERSONIFYING HIMSELF AS CAPTAIN SUD OF INDIAN ARMY. Dear Sir, 1. It is to inform you that one individual, who identified himself as Under Secretary in MS Branch, Army HQ, rang up Army authorities for a vehicle to be provided to one Captain Sud who was identified as ADC to Chief of the Army Staff. The caller further stated that he was on leave in Dharamshala and the said Captain Sud will be arriving at Kangra Bus Stand on 04 Feb 97 at 0630 hours. The said Captain was to be conducted to Jawala Mukhi Temple and Palampur, is native town. 2. Considering the request, an army vehicle with driver Naik Narayan Bahadur Gurung and Subedar Bhim Bahadur Thapa of 2/5 GR (FF) as Co- driver was sent to Kangra bus stand at 0615 hours on 04 Feb 97. The said 5 Captain Sud approached the vehicle at Kangra Bus stand as it arrived and boarded the vehicle in civil dress with a brief case and asked the said Subedar to take him to Haripur, where he visited a Santoshi Mata Temple. At Haripur he went to one retired Subedar’s house and after a wash he went to Guler Railway station and met station master where this party was offered tea. 3. From Guler the said officer with vehicle moved to Fatehpur and visited his aunt’s house, another house of a BSF Jawan and also met a number of personnel on the road side and he was heard stating that he is involved with the recruitment which is now scheduled on 16 Feb 97 at Reh instead of 06 Feb 97. This conversation caused a suspicion in the mind of said Subedar who asked him to move to Jawala Mukhi and Palampur as requested through the telephone call. The said Captain Sud however pacified the Subedar that he need not worry and he will inform the Army authorities about his programme. Then the said Captain took the vehicle to his stated sister’s house around five km from Fatehpur where lunch was catered for. 4. After lunch and visiting a number of hamlets enroute, the said Captain returned to Fatehpur and went to a Pradhan’s house in the close vicinity of Fatehpur, where he stayed for the night 04/05 Feb 97. He also organized for the beddings for Subedar and Naik as stated in Para 1 above. 6 5. At 0630 hours on 05 Feb 97, the said Captain asked the Subedar to move and he sat in Army vehicle with a white Maruti van with registration Numebr HIK 4269 with CHIBS painted on the rear pane following. The said Captain Sud came up to main road Pathankot – Nurpur to a point approximately two km towards Nurpur from Jassore and left the army vehicle stating that he shall be going back to the Pradhan’s house where he had stayed for the night. The said Captain got into the Maruti van HIK 4269 which was reportedly being driven by son of Pradhan. 6. The Naik Narayan Bahadur Gurung and Co-driver Subedar Bhim Bahadur Thapa are available as eye witnesses and to identify the house where the said Captain stayed for the night.” 8. A reading of the report would show that both the Army personnel accompanied the accused and they spent the night at the house of one Pradhan in the close vicinity of Fatehpur. This Pradhan has not been produced in evidence. This fact is of some significance. The case of the prosecution is that first the accused met with Station Master PW-8 Abdul Rasheed, then retired Subedar Kamlesh Kumar PW-1, thereafter Honorary Captain Shri Jaswant Singh, PW-2, then PW-11 Smt.Lata Devi, PW-4 Smt.Kunta Devi and Shri Rakesh Pathania PW-6. During the entire occurrence three persons, namely, the accused, driver of the 7 vehicle and PW-18 Bhim Bahadur Thapa, were all present. So was of the Pradhan, at whose house, the accused has spent the night alongwith both the army personnel PW- 18 Subedar Bhim Bahadur Thapa, and the driver Naik Narayan Bahadur Gurung, (not produced in evidence) who, according to the complaint, became suspicious and wanted to report the matter to the Army Authorities, but the accused pacified them that they need not worry and that he will inform the Army Authorities about his programme. It is also significant to note that though the vehicle Jonga Jeep was supposed to have been at the disposal of the accused and driven all over District Kangra, yet no orders have been produced authorizing/allocating the jeep for the purposes of escorting/transporting the petitioner who was supposed to be Captain Sood. The number of the vehicle and the Unit from which it was sent have also not been produced on the record, though these records are available with the army. The log book of this jeep and the orders which may have been issued for its deployment have also not been produced. The Unit where the Jeep was on duty, the number of the vehicle etc. and important details have also not been produced and most of all, the driver has been withheld from deposing in Court. Lastly, even the Pradhan where the accused and Army Personnel spent night has also not been produced in evidence. This indeed is a very strange case which has been set out by the prosecution. They want this Court 8 to believe that Army vehicles are deputed without any order(s) of the Army authorities and are to serve imposters without ascertaining their identity etc. Even the evidence of other material circumstances including the details of the message etc. received from Delhi as also other documents etc. have not been produced/proved on the record. 9. Turning to the evidence of PW-18 Shri Bhim Bahadur Thapa, complainant, all that I can say is that his evidence is not worthy of being relied upon. He states that in 1996-97 he was posted as Subedar in Army Cantonment at Dharamshala and that the Brigade Officer of his Unit directed him that one Captain Sood was visiting Kangra and he was to be received at the bus stop and be taken to Jawalamukhi temple and other places where he wanted to go. An order (not produced in evidence) was issued that a Jonga Jeep with one driver be deputed to look after this Captain Sood. They went to Kangra Bus Stand where they met the accused who was in civil dress and introduced himself as Captain Sood. They traveled to different places including Jawalamukhi Temple. This witness was declared hostile. In cross-examination he admitted that the case of the prosecution to the extent that the accused visited various places. He also admitted that no log book was maintained by him. There was one other witness who was declared hostile, when he stated that the accused did not hold out any promise to any 9 person(s) in his presence. If his testimony is considered as a whole, he supports the case of the defence. Coupled with the fact that the other witness i.e. the driver of the Jeep and Pradhan has not been produced in evidence, creates a grave doubt in the mind of this Court as to whether the incident did take place in the manner as alleged. 10. Adverting to the evidence of PW-4 Abdul Rasheed, who has stated that he was Station Master at Kopar Lahar. On 3.2.1997, accused met him at Railway Station and introduced himself as Captain R.S. Samyal of the Ist Sikh Light Infantry C/o 56 APO Yol Cantt and inquired about Station Master. Kamlesh Kumar, PW-2 has stated that in January, 1997, Chokidar of Haripur HPSEB came to him and told him that Clerk of Electricity Board was standing outside in the company of one Army Officer. In cross-examination, he admits that he does not know the name either of the Chowkidar or of the Clerk, who introduced him. PW-2 Sh.Jaswant Singh testifies that he was an Ex-Army Officer. According to him the appellant introduced himself as Captain A.Jasrotia of 25 Punjab Regiment. He informed this witness that he was posted in Delhi in Army Head Quarter as ADC. He wanted to get his son transferred but does not disclose as to where his son is serving. PW-11 Smt. Lata Devi states that on 2.2.1997 the petitioner came to her house and identified himself as an Army Officer hailing from Kathua. Accused assured 10 her that he would get her husband transferred, who was serving in “25 Punjab”. The accused is supposed to have visited PW-4 Smt. Kunta Devi who testified that she was teacher in Moti Memorial Public School Ghar Jarot. She has been declared hostile and nothing material has been elicited from her evidence to show that the accused infact met her and introduced himself as an Army Officer and assured her to help under the colour of his office. PW-6 Sh. Rakesh Pathania states that one Kartar Singh from Fatehpur had brought the petitioner to his house on the night of 24.1.1997 and at that time he was in civil dress and introduced himself as Captain Yogesh Guleria from Delhi. He informed this witness that he knows his brother-in-law PW-10 Subhash (brother of PW-6) and stayed there up to 26.1.1997. On 27.1.1997, he came in an Army vehicle and cheated Subhash PW-10 of Rs.200/- on the pretext that he would get the pending forest case against this witness resolved favourably. On 4.2.1997 he again visited them for 10-15 minutes. PW-10 Subhash Singh states that the petitioner had visited him on 26.1.1997 and again on 27.1.1997. What is significant about this witness is that there is no evidence on record to show that there was any forest case pending, which this witness wanted to be sorted out for which assistance was required for favourable resolution. 11. I have heard learned counsel appearing for the parties and gone through the record of the case. 11 12. The story is that the petitioner had taken the Army vehicle from place to place and spent the intervening night of 4.2.1997/5.2.1997 in the house of one Pradhan, where even the Army personnel accompanying him happily shared food with him and were looked after by the Pradhan, whose identity is neither known nor has been disclosed in evidence. 13. Learned Additional Advocate General contends that in revisional jurisdiction it is not open to this Court to re-appreciate the entire evidence and record a finding different from that which has been recorded by the two Courts below. This proposition is well settled. At the same time if there is perversity in arriving at the conclusion of guilt or if the principles of law have not been properly applied, this Court can exercise its revisional jurisdiction to correct any injustice. 14. Considering the entirety of the evidence, no offence under Section 170 or under Section 420 of the Indian Penal Code is made out. The star witness PW-18 Sh.Bhim Bhadur Thapa has resiled from his previous statement and has turned hostile. He supports prosecution story in cross-examination only to a limited extent, but at the same time no log book, orders deputing the vehicle, phone calls/orders from any headquarters, any document signal etc. directing the jeep be used in a particular manner, have been produced in evidence. The driver of the vehicle though 12 named in the First Information Report has also not been examined. Why this course has been followed is not clear. Why the log book of the vehicle has not been produced, the source of the messages, orders issued for deputing the jeep, have not been proved in evidence remains a mystery. The Pradhan though a star witness has not been produced/examined in evidence. The origin of the order(s) is not clear. Who gave the message from Delhi regarding the visit of Captain Sood, is also not proved. 15. Before adverting to the principle applicable for proof of offence under Section 170 IPC, it is now well settled that the party in possession of evidence must produce the same in Court irrespective of the purpose of proof. (See: Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, AIR 1968 SC 1413). 16. In Mohan Lal Shamji Soni vs. Unioin of India and Others, 1991 Supp(1) SCC 271, the Supreme Court holds:- “10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the code to compel either the prosecution or the defence to 13 examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. … … …” (p-277) 17. In Mohan Lal Shamji Soni’s case supra the Supreme Court holds that the rule of evidence is that the best evidence should be produced. I have already considered the fact that the star witnesses and the people conversant with the facts of the case were withheld and even the complainant had resiled from his statement. In these circumstances, an adverse inference under Section 114(g) of the Indian Evidence Act is required to be drawn against the prosecution. From the state of the record, it cannot but be presumed that if the evidence, which has been withheld, was produced in Court it would have been fatal to the case of the prosecution. Perversity in the application of the principles of law applicable is writ large in the judgment of both the Courts below. 18. Before parting with the case, I must express my deep anguish in the manner in which the prosecution case proceeds. To say that the attitude of the Army Authorities is alarming would be stating the obvious. How and under what circumstances a person purportedly 14 impersonating himself as an Officer of the Army has tricked the Army Authorities at the cantonment and if the prosecution story was to be believed, taken an official army jeep all over District Kangra without anybody waking up to the security threat such impersonation, has caused to the security of the country borders on the verge of incredibility. With respect to the withholding of material evidence, the lesser said the better. The prosecution case cannot succeed on the number of witnesses but it on the quality of the evidence. If what the prosecution states is correct, the threat to the security establishment is writ large what more can be said. 19. In Biswanath Mukherjee vs. The State, AIR 1967 Calcutta 602, a Division Bench of the Calcutta High Court considered the necessary ingredients to be proved before a person can be convicted of offence under Section 170 IPC:- “3. … … … … … … … … … … … … … Section 170 Indian Penal Code reads as follows: Whoever pretends to hold particular office as a pubic servant, knowing that he does not hold such office or falsely personates any other person holding such office and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description, 15 for a term which may extend to two years, or with fine or with both. The prosecution, therefore, is to prove the following points. (1) that the accused falsely pretended to be or personated to be a public servant, (2) that he did so knowingly, and (3) that when assuming such character he did or attempted to do something under colour of such office……………”. (p.602) In that case, prosecution case was that the petitioner went on board a Japanese vessel S.S. Ganges Maru and represented himself as a Customs Officer and wanted presents from the Purser and the Master of the vessel. He received a ball-pointed pencil from the Purser and a packet of handkerchiefs from the Master. The Court on consideration of the facts concludes:- “4. The demand or receipt of presents cannot be said to be under colour of office, as the act has no relation to the duties of the Customs Officer and the ingredients for an offence under S 170 Indian Penal Code are not therefore satisfied. We are, therefore, of the view that the prosecution failed to prove that the act was done under colour of the pretended office and no offence under S. 170 Indian Penal Code was therefore, committed”. (p.603 ) 20. The Court also noticed and considered the decision of Allahabad High Court in Emperor Vs. Aziz- Ud-Din, (1905) ILR 27 All 294, holding that it is not 16 necessary that the act done or attempted to be done should be such an act as might legally be done by the public servant impersonated. To similar effect is the decision of Punjab and Haryana High Court in Ajitinder Singh vs. State of Punjab and Others, 2000 Cri.L.J. 1827. The court holds:- “13. As already observed, there is nothing on records to show that the 5th respondent has done any act under the colour of the office. Mere attending some meetings and addressing general public does not amount to act under the colour of the office. If a person who has been designated as Chairman discusses with somebody like the Sub- Divisional Magistrate or Deputy Commissioner and other people, it does not amount to dealing with the activity of the Marketing Board or with regard to participating in the activity of the Marketing Board. In my view, it does not amount to acting under the colour of the office. May be, having been appointed as Chairman of the Punjab State Agricultural Marketing Board, the 5th respondent wanted to acquaint himself with the functioning of the Board and also to streamline the functioning after assumption of the office. But it does not amount to offence as envisaged under Section 170, I.P.C. Mere assumption of a character without any attempt to commit any official act is not sufficient to attract Section 170, I.P.C. I am, therefore, of the 17 opinion that Section 170 is not attracted”. (p-1829) 21. I am in respectful agreement with the proposition of law extracted above. There is no evidence worth the name alleged to connect the acts of the petitioner with the so called colour of his office. Moreover, as I have held an adverse inference requires to be drawn against the prosecution for withholding the best evidence. Turning to the offence of cheating, the statements of PW-8, Abdul Rasheed and PW-10, Subash Singh are concerned, all that they say is that a sum of Rs.200/- was borrowed by the petitioner. PW-15 Ashwani Kumar, who runs a Dhaba, states that the petitioner promised him to get him recruited in the Army and had his meals there. So far as the statements of PW 15 Ashwani Kumar and PW-16 Purshotam are concerned, their evidence does not prove the case of the prosecution in any manner. In these circumstances, I find that the judgments of both the Courts below are against law. I hold that the petitioner has not impersonated himself as an Army Officer nor has he cheated any of the witnesses, as stated by them. This Revision is accordingly accepted. Judgment of conviction is set aside and the petitioner is given the benefit of doubt. The bail bonds furnished by the petitioner shall stand discharged. June 19, 2010 (Dev Darshan Sud) (aks) Judge