IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision Nos.191 and 192 of 2002. Date of decision: 29.03.2010. 1. Criminal Revision No.191 of 2002. Ramesh Chand & Another ….Petitioners Versus State of Himachal Pradesh ….Respondent 2. Criminal Revision No.192 of 2002. Parkash Chand @ Parkash Singh ….Petitioner Versus State of Himachal Pradesh ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes For the Petitioners: Pt.Om Parkash Sharma and Mr.Virender Rathore, Advocates. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. Both these revision petitions are being disposed of by a common judgment as they arise out of the same appeal. The petitioners were charged for offences under Sections 420, 467, 468, 471 and 120-B read with Section 34 of the Indian Penal Code. The brief facts necessary for determination of this petition are that a petition under Section 125 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes 2 of the Code of Criminal Procedure, (hereinafter referred to as the `Code) was instituted by one Smt.Sunita Devi against petitioner Ashok Kumar in the Court of the learned Chief Judicial Magistrate, Kangra at Dharamshala. This petition was allowed in her favour and she was awarded maintenance at the rate of Rs.500/- per month by order of the Court dated 21.1.1994. She filed an application for execution of this order. At the relevant time her husband Ashok Kumar(one of the petitioners) was serving in 29 BN C.R.P.F., 111 Building Kalanaur (Punjab). The learned Chief Judicial Magistrate, Kangra at Dharamshala issued warrant of attachment of the salary of the accused- petitioner which was sent to the Commandant of the 29 BN where he was serving. The prosecution case was that when there was no compliance of the execution order, a notice was sent by the Chief Judicial Magistrate to the Commandant of the Battalion where the accused- petitioner Ashok Kumar was serving. The Commandant by his letter dated 2.2.1994, Ex.PW-9/E, communicated with the Court that the learned Additional Sessions Judge-(II), Kangra at Dharamshala stating that the learned Court had issued a stay order on 19.1.1994 staying the execution proceedings. Communication Ex.PW-19/A, dated 20.3.1994 was addressed by the learned Chief Judicial Magistrate to the learned Additional Sessions Judge-(II), Kangra at Dharamshala 3 seeking confirmation as to whether any stay order had been issued staying the execution of the order of maintenance passed against petitioner-accused Ashok Kumar. The learned Additional Sessions Judge by a communication dated 23.3.1994, Ex.PW-19/F, informed the executing Court that the alleged stay order dated 19.1.1994 appears to have been forged by some interested persons and action in accordance with law be initiated against those persons. Complaint Ex.PW- 19/K was lodged by the then Chief Judicial Magistrate, Mr.George. This was preceded by an order passed by him Ex.PW-19/I to the Station House Officer, Dharamshala, for registration of the case and recording First Information Report. The order reads:- “30.6.94. Present: Sh.O.S.Kaistha, Adv. for the petitioner. Respondent not present. A warrant of attachment of the salary of respondent Ashok Kumar was sent to the Commandant, 29 BTN CRPF, 111 Building Kalanaur (Punjab) to the tune of Rs.500/- per month and remitting the same to this court vide this court order dated 31.1.94. A confidential letter dated 18.2.94 was received from the Commandant’s office in this court. Thereafter, a reminder was sent for compliance of the earlier order. The Commandant thereafter sent letter dated 4 4.2.94 alongwith alleged stay order in this execution of the court of learned Addl.Sessions Judge (II), Kangra at Dharamshala, dated 19.1.94. The request was sent by this court dated 23.3.94 to the court of learned Addl.Sessions Judge (II), Dharamshala, to confirm as to whether any stay order dated 19.1.94 has been issued in the present execution petition or not. The learned Addl.Sessions Judge (II), Dharamshala, vide his letter dated 29.3.94 has informed this court that the alleged stay order dated 19.1.94 appears to have been forged by the person interested, who has submitted the same to the CRPF authorities and as such, action is liable to be taken against him in accordance with law. After going through all these documents, there appears to be a case made out against accused Ashok Kumar, respondent for the commission of offence under section 420/468/478 IPC, for which, for which a report may be sent alongwith Photostat copies of all these documents and copy of this order to the S.H.O., P.S. Dharamshala, for registration of the case against the accused/respondent and investigation of the case, in accordance with law. The main petition be put up for consideration on 30.7.94. Sd/- Chief Judl.Magistrate Kangra at Dharamshala.” 5 First Information Report Ex.PW-24/A was lodged on the basis of the written complaint made by the learned Chief Judicial Magistrate. The prosecution examined 24 witnesses to establish the complicity of the accused. The accused-petitioners were charged to stand trial for offences under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code on the allegations that they had conspired by typing out a forged stay order granting stay for the execution of the maintenance granted in case No.44-IV/93, titled: Sunita Devi vs. Ashok Kumar and used it for not only thwarting judicial proceedings but also cheating the Commanding Officer of the Battalion where one of the accused-petitioner Ashok Kumar was serving. PW-19 Shri George was the Chief Judicial Magistrate, Kangra at Dharamshala. In his evidence he proves the order passed by him and the other documents purportedly received by him, namely, the confirmation sought by him from learned Additional Sessions Judge- (II), Kangra at Dhamahsla, vide Ex.PW-19/F, the reply of the learned Additional Sessions Judge-(II), Kangra at Dharmashala, Ex.PW-19/H. More importantly he proves Ex.PW-19/G which was objected to as it was merely a photocopy and the original has not been produced. In his cross-examination he states that the stay order is not a part of the record. He admits that Ex.PW-19/G is a photocopy and the original was 6 never shown to him. This will have a material bearing on the entire prosecution case, as without proving the foundation of the case made out before the learned Court, the petitioners cannot be charged and convicted for the offences allegedly committed by them. PW-20 Lashkari Ram, was posted in the office of the Superintendent of Police as Assistant Head Clerk. He produced Ex.PW-19/G, which production and mode of proof was objected to by the accused. In reply to the question in cross-examination with respect to the original of this document, he states that he has no idea where the original is and further states that it may be with ASI Swaran Singh, PW-21. The order was probably lost in the office and he could not say where it was. PW-21, ASI Swaran Singh, admits that he does not know where the original of PW-19/G is. The learned trial Court purportedly makes a thorough analysis of the evidence and convicts the petitioners for the offences, as charged. The judgment strangely proceeds on the premise that it is the admitted case of the prosecution that the facts stated by it are true. After accepting the fact that the original of Ex.PW-19/G was lost, there was no explanation forth coming as to how and under what circumstances it came to be lost. The learned Court proceeds on the ground that it is an admitted case that the photocopy has been accepted by the accused as being the very order 7 which was used by the accused to subvert the course of justice. At this juncture, I may also note that no person from the office of the Commandant of the CRPF Battalion where the petitioner-accused Ashok Kumar was serving has been produced in Court to prove as to what order/letter/document was received in the office of the Commandant, 29th BN, CRPF. Rather the learned Judge has relied heavily on expert evidence of Shri N.C. Sood, who appeared in Court and tried to establish forgery. At this juncture, the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as the `Act’) may be considered. Section 64 of the Act postulates that a document must be proved by primary evidence except in the cases exempted which have been provided under Section 65. This is the golden rule and for the obvious reasons because primary evidence is the best evidence. Merely tendering photocopies of a document, which are not proved to have been made by the same mechanical process as envisaged under Section 63(2) of the Act, cannot be treated as evidence under Section 63. Needless to say that the case has been handled either with deliberate negligence or a casual approach on behalf of the prosecution which did not even care to examine the Commanding Officer or any other person from whose custody Ex.PW-19/G, the foundation of the entire prosecution case was received. Strangely there is no evidence to prove 8 that this photocopy was prepared from the original document in circumstances where it was not possible to have tampered with the original document. PW-20 Lashkari Ram and PW-21 ASI Swaran Singh are absolutely casual in their deposition before the Court by saying that the document was lost in the custody of the police under circumstances they are not aware of. How and under what circumstances both the Courts below considered Ex.PW-19/G as also Ex.PW-19/I to be the original document and genuine, is not clear from the record. Offences affecting the administration of justice are serious and the legal system cannot be allowed to be tampered with or manipulated to suit the needs of a particular individual. It is a very serious crime which requires award of exemplary punishment. Ample evidence could have been produced from the Office of Superintendent of Police to prove that the original of Ex.PW-19/G was lost. No attempt was made to establish that the original of PW-19/G was kept in safe custody and the circumstances under which it came to be lost from the office of the Superintendent of Police. In Government of Andhra Pradesh and Others vs. Karri Chinna Venkata Reddy and Others, AIR 1994 SC 591, the Supreme Court held:- “2. … … … … … … … Two questions arise, one, if the additional documents could have been admitted in writ 9 jurisdiction and second if reliance could be placed on them as they were only Photostat copies and the High Court admitted the documents without recording any finding that the respondents made out a case for acceptance of secondary evidence. The admission of additional documents by the High Court in writ jurisdiction is an exercise of discretion with which this Court does not normally interfere. But the genuineness of documents is an aspect which goes to the root of the matter. If the records have been tampered and fictitious documents were produced before the High Court then it certainly vitiates the finding … … … … … … … … … …” Similarly, in Kalyan Singh vs. Smt.Chhoti and Others, AIR 1990 SC 396, while dealing with the provisions of Section 63, the Supreme Court, interpreting the provisions, held:- “25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts 10 of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.” Whether Ex.PW-19/G was a document having been prepared by the same mechanical process or it was a copy of the copy has not been established on record. In Badrunnisa Begum vs. Mohamooda Begum, AIR 2001 Andhra Pradesh 394, the Court holds:- “5. … … …The learned counsel for the appellant submits that under illustration (c) a copy transcribed from a copy but compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the 11 original. Now, if one goes by this illustration in the light of the evidence that is on record, one finds that there is no evidence whatsoever showing thereby that the copy taken from the copy was compared with the original. What the plaintiff has tried to do is that, she has tried to prove comparison of the copy of the copy by exhibiting Ex.A32 which is a photo copy along with the negatives. The requirement of illustration (c) was that the copy taken from the copy should have been compared with the original… … … … … … … … …”. The decision of the Patna High Court in Jai Prakash Singh vs. State of Bihar, 2007(1) Crimes 456 may also be considered. Relying upon the decision of the Supreme Court in Ashok Dulichand vs. Madahavlal Dube, AIR 1975 SC 1748, the Court held:- “5. Learned Court below by the impugned order has allowed this prayer of the prosecution to admit the photocopy of the inquiry report in evidence. This has been opposed by the learned counsel on behalf of the petitioner. In this connection my attention has been drawn to the case of the Ashok Dulichand v. Madahavlal Dube, AIR 1975 SC 1748”. In this decision 12 the Hon’ble Supreme Court has held that in a case of photocopy of a document, before it is admitted in evidence it has to be explained as to what were the circumstances under which photocopy was prepared and who was in possession of the original document at the time when its photocopy was taken and this should be above suspicion. In the present case as will appear from the impugned order dated 3.8.2005 it appears that the original injury report was not attached with the case diary rather only its photocopy was attached to it. This is a great circumstances against the case of the present petitioner. As held by the Hon’ble Supreme Court in the above mentioned case before a photocopy of a document is admitted into evidence it has to be explained as to what were the circumstances under which the photocopy was prepared and who was in possession of the original document at the time when its photocopy was taken and this must be above suspicion. In the present case as will appear from the impugned order as also the facts and circumstances of this case that the prosecution has not been able to specify when the photocopy of the original injury report was prepared and under what circumstances. It has also not 13 been stated as to who was in possession of the original document at the time when its photocopy was prepared. Under this circumstance I think that the learned Court below by the impugned order has wrongly decided to admit the photocopy of the injury report. It may be stated here that it is well settled that the photocopy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or some other evidence as has been held in the case of Subarna Barik vs. The State of Orissa, AIR 1976 Orissa 236. 6. However, under the facts and circumstances of this case it is clear that the photocopy of the injury report is not admissible in evidence as has been held by the learned Court below. The impugned order is directly in conflict with the decision of the Hon’ble Supreme Court in the case of Ashok Dulichand (AIR 1975 SC 1748) (supra).” The mode of proof and the production of the the document which was exhibited as Ex.PW-19/G in evidence has been objected to. Mere marking of the 14 document as an exhibit would not render it to be a document purporting to prove that what it contains. On the question of admissibility of evidence, in Bipin Shantilal Panchal vs. State of Gujarat and Another, (2001)3 SCC 1, the Supreme Court holds:- “13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of 15 practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re- moulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other 16 objections the procedure suggested above can be followed.” It was incumbent for the Court to have decided on the objection raised by the defence. Merely recording an objection was not sufficient. The evidence of the handwriting expert Shri N.C. Sood, PW-15, cannot be relied upon as it is now well settled that the science of identification of handwriting is imperfect and frail. (See: State of Maharashtra, Complainant vs. Sukhdeo Singh and another, AIR 1992 SC 2100, Magan Bihari Lal vs. The State of Punjab, AIR 1977 SC 1091 at page 1094, Ram Narain vs. State of Uttar Pradesh, AIR 1973 SC 2200 and the Constitution Bench decision of the Supreme Court in Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 SC 529.) Moreover, the original document not having been proved, its safe custody having remained a mystery and its loss/destruction having not been established, I cannot find any evidence to hold that the petitioners are guilty of the offences as alleged. It is established by the evidence of PW-19, Shri George, Chief Judicial Magistrate, who himself states that this order Ex.PW-19/G was never produced before him. As held by me, no person from the office of the Commandant was produced to prove the genuineness of Ex.PW-19/G. The document Ex.PW-19/G which has been 17 produced in evidence is without any proof of it being prepared in a manner which eliminates suspicion. In these circumstances, the very basis and foundation of the order having been not proved, no conviction can be based on the evidence on record. I must observe that the case has been conducted in a very casual manner. If the allegations made against the accused were true they were of a serious nature deserving exemplary punishment but that does not mean that this Court should act emotionally without following strict standards of proof. These revision petitions are accordingly allowed. The judgments of conviction and sentence of both the Court below are set aside and the bail bonds executed by the petitioner are directed to be discharged. March 29, 2010. (Dev Darshan Sud) (aks) Judge.