1 IN THE HIGH COURT OF HIMACHAL PRADESH , SHIMLA Cr. Revision No.: 130 of 2007 Reserved on: 7th July,2008 Decided on: 16.7.2008 Gopal Dass Petitioner Versus State of Himachal Pradesh Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? yes. For the petitioner: Mr. Asuthosh Burathoki Advocate, For the respondent: Mr. J. S. Guleria, Law officer Surinder Singh.J. The learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, affirmed the conviction and sentence passed by the learned Chief Judicial Magistrate, Kangra at Dharamshala in Cr.RBT Case No. 38-II/04/99 dated 7th June, 2004 whereby the petitioner, hereinafter called the accused was convicted under sections 420,467,468 and 471 of the Indian Penal Code and sentenced to under go imprisonment for a period of one year and to pay fine of Rs.5000/- on each count, in default to further undergo simple imprisonment for a further period of four months in this revision petition. The accused has challenged the judgment of both the courts below, in this revision petition. 2 The factual matrix, which gives rise to the present petition are that the accused-convict was posted as Licensing Clerk in the office of the District Magistrate, Kangra at Dharamshala. At the relevant time, Smt. Manisha Shridhar was the District Magistrate. It came to her notice that some arm licenses were forged by the accused and its area was extended to all India without any valid orders by the competent authority. On this information, she nominated PW11 Parbod Saxena, the then Additional Deputy Commissioner, Kangra at Dharamshala, to conduct an inquiry into the matter and submit a detailed report. After conducting inquiry Shri Parbod Saxena, submitted his report Ex.PW8/A to the District Magistrate looked into the veracity of the license No.5616-A issued in the name of Sh. Mohamand Sahit for NPB Rile .3154 Bore No.2B4387 which was valid up to 10.1.1994 and was having an endorsement extending its jurisdiction to All India by quoting the reference of letter No. Home(A)(F)(12)-2/94 dated 22.3.1994, regarding which no record was found available. Since the license of Mohamand Sahit was neither found entered nor its endorsement was correct, therefore, the Inquiry Officer found the license to be forged. It was also came to his notice that the Department of Home vide the aforesaid number had only conveyed the extension of area to All India Jurisdiction in respect of the following arms licenses: 1. Shri Radhe Shyam (servicemen) 5440/M-Kangra/92 2. Shri Parlad Singh (servicemen) 4948/Kangra 3. Shri Rudra Dutt Nisahad (servicemen) 5746/Kangra-94 4. Shri Balbir Singh (servicemen) 2930/94 5. Shri Inderjit Singh Yadav (servicemen) 5737/Kangra/94 3 In the process of inquiry, PW11 also went through the Register for Kangra Sub Division, running from the license No.5288 to 5671 w.e.f. 24.12.1991 and found that 21 number of licenses including license one more license No. .5616-A were found endorsed to All India jurisdiction quoting the same letter No. Viz. Home (A)(F)(12)- 2/94 dated 22.3.94 referred above. The details of the aforesaid forged licenses are appended as Annexure-B to his report. He further found that none of the license holder was of District Kangra and out of this 15 licenses were issued mainly to the residents of Uttar Pradesh, 5 to the residents of New Delhi and 1 to the resident of Secunderabad. Thus, these licenses were issued in utter violation to the instructions issued regarding residence of the licensee. Neither any record was provided by the dealing clerk with reference to the above licenses nor it was available in the office. He also found that no police verification was ever got done. All these licenses bear “Suffix-A”, which appears to have been incorporated subsequently in the Register and was deliberate strategy of the dealing clerk to leave the space either at the end of each page or in between the entries. However, more often then not, they were found at the end of the page. On perusing the letter Annexure A, Inquiry Officer did not find any permission for these licenses for extension of All India Jurisdiction from the Debarment of Home nor such permission could have been asked by the office of the Deputy Commissioner, as the license holders were the resident of Uttar Pradesh. Entries in the register were not properly authenticated by the Licensing Officer and in some of the licenses photographs were found missing. Out of 21 licenses, 12 licenses are for revolver/pistol and its detail are given in Annexure–C. While conducting further 4 inquiry, the Inquiry Officer associated Shri Lokinder Singh Negi, Additional District Magistrate and accused Gopal Dass Thakur, dealing clerk. During the course of inquiry, accused is alleged to have admitted that he made the fictitious entries in the licenses because of economic considerations and disassociated himself from the inquiry after 1.3.1996. The official record perused was sealed and kept in the Treasury Building under the supervision of Naib Tehsildar,Dharamshala. The record of the details (Annexure –D) was sent to the record room by making a proper inventory. The Register pertained to the period 24.12.1991 to 19.5.1993, which was examined with reference to endorsement for All India jurisdiction made vide letter No.Home(A)IF)(12)-2/94 dated 22.3.1994 and the mischief was alleged to have been played at two stages: a) issuance, and b) endorsement for All India Jurisdiction. The date of issuance pertained to the period of. 24.12.91 to 19.5.93 and the date of endorsement was presumed to be subsequent to 22.3.1994. with effect from 24.12.1991 ( date of opening of register) the licensing branch was looked after by the following dealing hand: 1. Shri Chand Swaroop(dead) till December, 1993 2. Shri Gopal Dass Thakur (accused) December 1993 onwards In respect of 21 licenses, its issuance appeared to the inquiry officer to be signed by the following officers: 1. Shri K.J.B.Subrahmanyam (3) (licences) 2. Shri R.K.Chouhan (17) (licences) 3. Unauthenticated (1) (licence) 5 The genuineness or otherwise of the signatures of these officers was beyond the scope of the inquiry. He placed on record confessional statement of the accused-convict, addressed to Shri Lokinder Singh Negi, Addl. District Magistrate along with its envelop which is alleged to have been received by post. In the opinion of the Inquiry Officer, there appeared to be a racket operating in this field, which required a thorough probe on of the licensing branch by the experts. PW 8 Shri Saxena Additional Deputy Commissioner submitted the report to the District Magistrate, who in turn sent the same to the Superintendent of Police, Kangra for the registration of the case, on the basis of which FIR No.124/96 under sections 420,467,468 and 471 of the Indian Penal Code was formally registered on 30.3.1993. During the investigation, two arm license registers, one from 24.12.1991 to 19.5.1993 and another from 24.5.1993 to 23.2.1996 vide recovery memo Ex.PW1/A, 22 gun licenses forms Ex.P1 to Ex.P-22 vide recovery memo Ex.PW1/B, three letters Ex.PW3/A to Ex.PW3/C, addressed to accused-convict by one Sh.B.K.Shukla were, also taken into possession by the police vide recovery memo Ex.PW3/D. Specimen handwriting of accused-convict Ex.PW5/B to Ex.PW5/H and signatures Ex.PW5/J to Ex.PW5/L were also taken in the presence of PW5 Shri Jagmohan Singh Mahantan, the then Chief Judicial Magistrate, on the request of the police. Similarly specimen signatures of one Sh.R.K.Chauhan Ex.PW5/AG to Ex.PW5/AJ were also taken and sent to the Government Examiner, Questioned Documents for comparison with the disputed 6 writing on the register and licenses along with the admitted writings, which were in the form of leave applications of the accused taken into possession from his service record. Police also recorded statement of Shri Parmodh Saxena (PW8). Police also recorded statement of Shri Kishan Chand, who had produced Gun License No.5958-CP Kangra dated 20.12.1994 issued by the license clerk of D.C.Office. PW11 Prithi Chand was a witness, in whose presence the gun along with licence, were taken into possession by the police vide recovery memo Ex.11/A. PW12 Dasondi Ram was also a witness, in whose presence the police took into possession, vide recovery memo Ex.PW12/A, the rifle and cartridges . PW 13 Rulia Ram also produced his alleged forged arm licence along with his gun, which were taken into possession by the police. PW15 Kamlesh produced three rubber stamps, which were taken into possession by the police vide recovery memo Ex.Pw15/A Police also took into possession license registers of sub division of Kangra, Palampur, Dehra and Nurpur along with rubber stamps. PW26 Shri N.C.Sood, Deputy Government Examiner, Questioned Documents, submitted his reports vide Ex.PW26/18, Ex.PW26/19, Ex.PW26/20, Ex.PW26/21. Specimen signatures and handwriting of Sh. K. J. B. Subrahmanyam were also taken. PW3 Rajesh Thapa produced three letters Ex.PW3/A to Ex.PEW3/C, which were taken into possession vide recovery memo Ex.PW3/D According to the report of the Government Examiner, Questioned Documents, the questioned writing and endorsements found on the licenses and registers tallied with the alleged admitted writings of the accused Gopal Dass. All the disputed gun licenses were taken into possession by the police from different 7 persons. After recording the statement of the witnesses, challan was presented in the court for trial of the accused. Finding a prima-facie case against the accused, he was charge-sheeted for the aforesaid offences, to which he pleaded not guilty and claimed trial. At the end of the trial, he was convicted and sentenced as aforesaid, on the ground that the report of the Government Examiner, Questioned documents is corroborated by the confessional statement Ex,PW8/C of the accused, sent by post to Sh. L. S. Negi, the then Additional District Magistrate. In appeal, before the learned Additional Sessions Judge, the impugned judgment of conviction and sentence was affirmed, which has been assailed in this petition on the grounds: i) the prosecution failed to prove the admitted writings in the hand of the accused; ii) the alleged statement is not connected with the accused; iii) Ex.PW8/C alleged confessional statement is in fact no confession. Since the learned courts below committed an error of law by relying upon it, which has caused a miscarriage of justice. Shri Ashutosh Burathoki, learned counsel for the petitioner has elaborated the above points in his arguments and contended that judgment of conviction and sentence passed by the learned trial court and affirmed by the learned Addl. Sessions Judge, is erroneous, therefore, sought intervention of this court. Contra, Shri J.S. Guleria, learned Law officer has supported the impugned judgment of conviction and sentence passed 8 by the learned trial court and affirmed in appeal by the learned Additional Sessions Judge. I have given my thoughtful consideration to the rival contentions of the parties and scrutinized the record carefully. No doubt a big scandal regarding issuing the fake licenses came to the fore in the inquiry conducted by Shri. Prabodh Saxena, which culminated into the FIR and the investigating agency only held accused responsible for it without touching other officers who were also blindly signing the licenses and the relevant register. It was also their duty to see whether the licenses were genuine and all the legal requirements were fulfilled. In the instant case, against the accused, the prosecution mainly relies only two circumstances: (i) Confessional statement (ii) Report of the handwriting expert. Now I shall deal with both the aforesaid circumstances, turn by turn: CIRCUMSTANCE No. (i) . PW 8 Shri Parmodh Saxena, the then Additional Deputy Commissioner, Dharamshala, during the inquiry of the case, had taken into possession the alleged confessional statement Ex.PW8/C of the accused-convict from Sh. Lokinder Singh.Negi, the then Addl. Deputy Commissioner which fact has also been testified by him during the trial of the case. Letter/ Confessional statement Ex.PW8/C reads as under: “Date ……96 (torn) Respected Negi Ji, I feel terribly sorry and at the same time, I beg apology for the disgusting act committed by me which not only created hatred in your mind but also lost faith in your staff. Prudently it all happened due to timid and unpardonable activities as well as 9 uncontrollable greediness. Un-ambiguously money is the root of evil mind which always ruins the life. I have now realized as to what a blunder committed which cannot be rectified now even confession. It is well said that once the time is passed cannot be recalled. It is worthwhile to mention here that I am on the verge of retirement and have also a little place in the society. Imagine, if at this I am blamed for one or the other blunders, I shall be left no place to live than that of committing suicide as I have no coverage to face every one’s questionary eyes. My repentance cannot wash it , even my mind does not forgive me. Besides, all this I have utmost regard for your personality and sympathy which enshrines on your staff. Staff as well as I cannot remain silent without praising our beloved officer at this very time, there are a few officers who love their staff like a child and get optimum respect, praise and blessing. Nothing more to say. With best regards, Yours sincerely Sd/ (in English) Gopal Dass Thakur, Jr. Assistant. “ The alleged confessional statement Ex. PW8/C quoted above did not show the date ( the paper is torn) whereas its envelop Ex.PW26/4, wherein this letter was alleged to have been sent in the name of Sh. Lokinder Singh Negi, bears the postal stamp date as 4.3.1996. Prosecution did not examine Shri Lokinder Singh Negi, as a witness in order to substantiate this fact that this was the letter, which was received by him in the aforesaid envelope. Further it is also pertinent to note that the accused was posted at Dharamshala in the office of the Additional District Magistrate, he was not proved to be on leave when this letter was sent. Whether he was 10 in station or out of station, what compelled him to write the letter aforesaid and in which context he was remorseful. All these circumstances remained unexplained on the record. No witness has been produced to prove the alleged confessional statement. There is no evidence on record whether the address on the envelope was in the hand of the accused. Writing on the said confessional statement as well as on the envelope was only examined by the handwriting expert vis-à-vis the admitted writing which are also disputed by the accused and no attempt was made to prove those writing and signatures to be that of the accused. Despite of all these defects, if we go through the alleged confessional statement, it does not reveal that in any case the accused was repentant about the offence(s) in question. The narration made in letter is also not a clear and un-ambiguous admission of the offences, therefore, in my considered opinion, neither it can be said to be an admission of guilt nor a confessional statement with respect to the offence made by the accused in absence of the legal proof, thus this circumstance is of any assistance to the prosecution to link the accused with the offence charged. CIRCUMSTANCE No. (ii) . Next, the prosecution relies upon the opinion of the hand- writing expert PW26 Shri N.C.Sood. To connect the accused with the disputed writings, he was produced before Shri Jagmohan Singh Mahantan (PW5) the then Chief Judicial Magistrate, for obtaining his signatures and writings. The accused was asked to give his specimen handwritings Ex.PW5/B to Ex.PW5/H and signatures Ex.PW5/J to Ex.PW5/L on 26.8.1996 which were taken as material for comparing it with the disputed writing and endorsements. Further PW40 R. P. Jaswal (I.O.) had taken into possession the leave applications A-62 to A-72, scribed in hindi from PW24 Kishori Lal, Sr. Assistant, D.C. Office, Dharamshala from the service record of the accused 11 vide memo Ex,PW24/A, which are styled as admitted writings, but these documents have been denied to be in his own hand by the accused in his statement under section 313 Cr.P.C. The prosecution has not examined any witness from the office of the accused, who has either worked with him or was Junior to him who was conversant with the handwriting or signatures or was receiving notes, letters etc. from the accused, in the ordinary course of the official business or otherwise. Before these documents are held to be admitted, at least some sort of evidence was required to be produced, which is not available on record. By now it is also well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitting writing on a scientific basis, and (iii) by the court comparing the disputed document with the admitted one. In the present case, the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting Sh. N. C. Sood PW26. Section 311 (A) was introduced by the Code of Criminal Procedure by the Amendment Act of 2005 it received an assent of the President of India on 23.6.2005. It empowered the Magistrate to order person to give specimen signatures or handwriting but before this amendment, in 1995-96 when the signatures and writings of the accused were taken there was no such provision in the Code, therefore, the specimen writings and signatures taken before the learned C.J.M. is of no consequence. A Division Bench of this Court in Dev Raj versus State of H.P. 2003 (1) Cur. L. J. (H.P.) 82, held that during the course of investigation of the case, a Magistrate has no power to order and direct the accused to give 12 his specimen handwriting for the purpose of comparison with the disputed handwriting. Such specimen handwriting cannot be made use of during the course of the trial and report of handwriting expert is rendered of no consequence. While coming to this conclusion, the court relied upon the judgment of the Hon’ble Apex Court in Sukhwinder Singh & Ors vs. State of Punjab JT 1994 (4) SC 1. In State of Maharashtra vs Sukhdev Singh A.I.R. 1992 Supreme Court 2100 the Hon’ble Apex Court held that science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison. But in the instant case, the opinion of the handwriting expert is based upon the comparison of the material which is not proved to be in the handwriting of the accused. Thus in the instant case, there is no internal or external evidence relating to the document in question, supporting the view expressed by the expert aforesaid on which too much weight cannot be put in view of the above attending circumstances. If the aforesaid two circumstances are ignored, there remains nothing in the prosecution case by which the accused can be said to have been connected with the offence, more specifically when PW24 Kishori Lal Senior Assistant of the D.C.Office, Kangra has categorically stated that Shri Chand Swaroop (deceased) also remained for long time as Licensing Clerk and after his death cases of embezzlement in respect of Pong Dam also surfaced against him. Further the important witness of the prosecution was Shri Lokinder Singh Negi who was not examined, which creates doubt, on the authenticity of Ex.PW8/C. There is nothing on record to show as to why 13 the officers who had signed the licenses and endorsements were exonerated at the investigation state. On the perusal of the judgments of both the courts below, I find that too much importance was attached to the alleged confessional statement and the report of the handwriting expert, which is otherwise discrepant and do not connect the accused with the offences charged beyond a reasonable doubt. Accordingly, the judgment of conviction and sentence passed by the learned trial court and affirmed by the learned Addl. Sessions Judge, both are hereby set aside. Consequently, the accused is acquitted of the offences giving him the benefit of doubt. The fine, if any deposited, be refunded to the accused. The petitioner-accused is discharged of the bail bonds entered upon by him at any stage of the proceedings. The revision petition stands disposed of accordingly. Cr.M.P.No.467 of 2007. This petition does not survive in view of the order passed in the main revision petition. The application stands disposed of. July 16, 2008 (Surinder Singh), J. (D)