( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 445 OF 1999 The State of Maharashtra .. Appellant Versus Suman Madhavrao Rajguru .. Respondent Age. 40 years, Occ. Household, R/o. Harsul, Tal. & Dist. Aurangabad. Shri K.M. Suryawanshi, A.P.P. for the appellant. Shri N.G. Kale, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 05.12.2009 ORAL JUDGMENT :- 1. This is an appeal filed by the State being aggrieved by the order of acquittal passed by the 10th Judicial Magistrate, First Class, Aurangabad, in R.C.C. No. 383 of 1997, decided on 23.04.1999, whereby the respondent is acquitted of offence punishable under Sections 420, 465, 468 and 471 of the Indian Penal Code. 2. Briefly stated, it is case of the prosecution that ( 2 ) present respondent – Suman Rajguru was recruited as Police Constable w.e.f. 01.12.1982. Her birth date shown on the record of the department is 18.08.1958. In about 1988 there was special drive for recruitment of wards of police employees in the police department and the son of the present respondent had made application. He had shown his birth date as 06.09.1966. So, if 18.08.1958 was birth date of respondent Suman, she would have been eight years old when she gave birth to the son, which was not possible. Therefore, the Department started enquiry against the respondent. Complainant Vajrakumar Katke, Police Inspector, Crime Branch, Aurangabad, inquired into the matter. He visited the Government Girls Middle School, where the respondent had taken education and he found that the real date of birth was 18.08.1948 and not 18.08.1958. It was also found that the respondent had left school when she was in 5th standard. As per eligibility prescribed for appointment of Constable, minimum required educational qualification is passing of 7th standard and the age should be below 28 years. Said age is relaxed up to 33 years in the case of backward class candidates. Here age of the respondent, who was of backward class, should have been below 33, on the date of appointment. ( 3 ) Thus, according to the prosecution the respondent has cheated the Government, by fabricating false and forged documents. The respondent falsely represented that she had passed 7th standard and that her birth date was 15.08.1958 and thus secured employment and committed various offences. 3. The charge-sheet against the respondent was filed on 30.05.1992. The case was registered as R.C.C. No. 176 of 1992. It subsequently came to be renumbered as R.C.C. No. 383 of 1997. The learned advocate for respondent Shri N.G. Kale stated that on 98 dates the matter was adjourned and on all dates the respondent was present in the Court. Thus, inspite of several opportunities, the prosecution could examine only two witnesses. Those witnesses were P.W.1 – Vijaya Shiurkar, a clerk in the Police Commissionarate, Aurangabad and P.W.2- Maruti Ghuge, Dy.S.P., who had submitted the charge-sheet. It is rightly observed that Dy. S.P. Ghuge, who has been examined at Exh. 28, has done nothing other than mere filing of charge-sheet. The entire investigation was carried out by P.I. Katke. 4. So, there remains evidence of P.W.1 – Vijaya ( 4 ) Shiurkar, who stated that she was working in the Establishment Department of Commissionarate. Her work was relating to keeping personal record of employees Bakkal (Badge) No. 1401 onwards and one Mrs. Sunanda Rana was in- charge of personal record of personnel holding Bakkal (Badge) No. 901 to 1400. The work of opening of service books was done by both P.W.1-Vijaya Shiurkar and Sunanda Rana. According to this witness Bakkal number of the respondent was 1200. She had made endorsement regarding physical measurements, date of birth, educational qualification in the service book of Bakkal No. 1200 i.e. the respondent. The birth date as 18.08.1958 is mentioned on the basis of transfer certificate of school. The educational qualification shown was that she had passed 7th standard. 5. However, there was no other evidence on record. In-fact, the prosecution ought to have examined someone from the Government Girls Middle School, Aurangabad to prove the original entry regarding date of birth. It appears that what was produced as the basis of entry in the service record is school transfer certificate. The respondent in her statement under Section 313 of the Cr.P.C. has denied that she had ( 5 ) produced the transfer certificate on the basis of which entries are made in the service record, but she admitted while answering question No. 3 that the entries in the Transfer Certificate No. 373 (which was third copy) regarding date of birth being shown as 18.08.1948 and showing that at the time of issuance she was studying in the 5th standard were correct. Under the circumstances, it was for the prosecution to prove that the documents on the basis of which entries were taken in the service record were actually produced by the respondent. Her application for recruitment also could have been produced and proved to show that she misrepresented her educational qualification and the date of birth. 6. Further evidence was required to be produced to show that respondent did not take education beyond 5th standard. It is possible that someone may resume further education after a gap of certain period. During evidence of P.W.1-Vijaya Shiurkar, no document was proved or exhibited. During her evidence P.W.1-Vijaya Shiurkar was shown III photo-state copy of school Transfer Certificate No. 373, which bore date as 18.08.1948 and in which it is said that the respondent was then studying in 5th standard. It does not ( 6 ) appear that service record of the respondent was produced and the same was proved. So, in the circumstances the order of acquittal cannot be faulted with as evidence was far from being satisfactory. 7. The learned Magistrate has observed in para 20 that inspite of sufficient opportunities, the complainant was not examined. The documents on the basis of which the entries in service record were made are not proved. The matter was pending for more than four years. Witness summonses were issued from 11.12.1992 to 08.04.1999, but all witness summonses were returned with endorsements that either they could not be served on witnesses due to police bandobast or with reason that address of the witness was not known. The Magistrate finally observed while parting with the judgment that from the conduct the complainant/Investigating Officer, it was seen that he is trying to save the accused as both were from same department. 8. In my considered opinion, the evidence available at the Police Commissionarate in the form of service record including documents produced by the respondent at the time of ( 7 ) her recruitment, and the original record from the Government Girls Medium School, Aurangabad, could have been easily procured by the prosecution. But, it appears that there were no sincere efforts to lead proper evidence before the Court. It is necessary that the entire manner in which the prosecution was handled in the Trial Court needs to be taken cognizance of by the Home Department and the Director of Prosecution. 9. In the result, the order passed by the Trial Court is hereby confirmed and the appeal is dismissed. 10. Copy of this judgment be sent to the Principal Secretary, Home Department, State of Maharashtra, Mantralaya, Mumbai, for information. [P.R. BORKAR,J.] snk/2009/DEC09/crap445.99