CR.A/1009/1994 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1009 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus KHANT CHANA RAGHAV - Opponent(s) ====================================== Appearance : MR M.R. MENGDE, A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR HRIDAY BUCH for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 30/01/2008 ORAL JUDGMENT 1. The State of Gujarat preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 16.4.1994 delivered by learned Judicial Magistrate First Class, CR.A/1009/1994 2/7 JUDGMENT Veraval, whereby the present respondent who was the accused in Criminal Case No.1470 of 1986, came to be acquitted for the offences punishable under Sections 420, 468 and 471 of Indian Penal Code. 2. It is the case of the prosceution that the accused was serving as a Bit-Guard in the Forest Department. However, he had procured his service as such by tendering fake School Leaving Certificate, and thereby the accused has committed the offences punishable under Section 420, 468 and 471 of the Indian Penal Code. On behalf of the State of Gujarat, learned Assistant Public Prosecutor, Mr.M.R. Mengde strenously urged that the learned Judicial Magistrate First Class, Veraval had committed serious illegalities in acquitting the accused. That the learned Magistrate erred in holding that the application given by witness Bhana Laxman to the D.S.P., Junagadh should have been treated as First Information Report, in connection with the commission of cognisable offence. That the learned Magistrate erred in coming to the conclusion that the prosecution failed to prove that the fake School Leaving Certificate was tendered by the accused to his Department at the time of getting job. That it was the accused who was in need of job, and at the time of getting job, it is impossible to believe that somebody else on behalf of the accused might have tendered fake Certificate to the Forest Department. That the prosceution had adduced cogent and convincing evidence by examining the teacher of the School, wherein the accused is said to have studied as per the fake certificate; and Talati – cum – Secretary of the Village Panchayat along with the record regarding registration of birth, and it has come in evidence that the accused neither studied in the School from where he has said to have obtained the School Leaving Certificate nor he was born in Village Virdi on 01.06.1960, which is said to be the date of birth of the accused. That considering the deposition of CR.A/1009/1994 3/7 JUDGMENT witness Harsukhlal Kanjibhai, examined at Exh.8, who was Talati – cum – Secretary of Village Virdi, categorically deposed that in the month of June – 1960, no birth of the accused was registered in his Panchayat. That even the witness Devabhai Karsanbhai Mori, whose testimony is recorded at Exh.6, clearly deposed that in the Primany School of Village Virdi, the accused had never studied. Therefore, in sum and substance it is submitted that the prosecution succeeded in proving the case beyond reasonable doubt against the accused, and the impugned judgment and order passed by the Trial Court deserves to be set-aside, and the respondent – accused should be appropriately punished. 3. As against this, on behalf of the respondent – accused, the learned Advocate Mr.Hriday Buch, supporting the impugned judgment and order passed by the Trial Court, submitted that the Trial Court rightly came to the conclusion that the prosceution failed to prove beyond any reasonable doubt the offences charged against the accused. That even the prosecution failed to examine as witness, the complainant, who lodged the so-called FIR before police against the accused, which is even not proved on record in the criminal case. That the so-called fake certificate was fabricated by the accused and was tendered by the accused to his Department is not proved on record, during the course of the trial before the learned Magistrate. That as a matter of fact, considering the testimony of witness Bhana Laxman, who is examined at Exh.15, it is revealed that this witness had made some complaint in writing to D.S.P., Junagadh, making false allegations against the accused that he obtained the job as Bit-Guard in the Forest Department by exercising deceiptful means. However, witness Bhana Laxman clealy deposed that he is illiterate. He was even not read over the so-called application. That the so-called application said to have been made by witness Bhana Laxman to the D.S.P., Junagadh is not produced on CR.A/1009/1994 4/7 JUDGMENT record in this case. Therefore, the learned Magistrate rightly observed in his judgment that the prosecution has suppressed the material evidence in this case. In the result, it is submitted that the appeal preferred by the State of Gujarat be dismissed. 4. I have perused the record and proceedings of the Trial Court as well as the impugned judgment delivered by the Trial Court. The prosceution case against the accused is that while procuring job as Bit- Guard in the Forest Department, he tendered a fake School Leaving Certificate to get the job. I need not reproduce here the depositions of six witnesses examined in the Trial Court, but, suffice it to say that the origin of this case lies in an application made by witness Bhana Laxman to the D.S.P., Junagadh. However, neither the original nor the copy of the said application said to have been made by witness Bhana Laxman to the D.S.P., Junagadh is produced on record by the prosecution. However, perusing the depositon of witness Bhana Laxman, Exh.15, he stated that he had made one application to D.S.P., Junagadh, wherein he had alleged that the accused who was serving in Forest Department, had not studied in any school. However, he stated that he is illiterate, and even the said application was not read over to him by anybody. Now, in absence of said documentary evidence in the form of the application on record, it is difficult to state as to what type of allegations this witness had made in the said application, and on what basis. The important aspect of this matter is this, that the D.S.P., Junagadh, seems to have forwarded the said application to Talala Police Station, and some entry was made in the relevant register of Talala Police Station, and said application was thereafter forwarded to Sasan Out-post Police Station for investigation, and on the basis of said entry, one Mr.K.D. Parmar, Unarmed Police Constable lodged an FIR against the accused. Perusing the entire record of the Trial Court, neither Mr.K.D. Parmar, Unarmed CR.A/1009/1994 5/7 JUDGMENT Police Constable, who is said to have lodged the FIR is examined as witness, nor the FIR came to be proved by the prosecution during the course of evidence before the Trial Court. Again one clinching circumstance is that, as per the case of the prosceution, the accused tendered a fake School Leaving Certificate. Perusing the original record of the Trial Court, it appears that the said certificate is on record at Mark-17/1. In connection with so-called fake certificate, no evidence is adduced by the prosecution to prove the forgery as well as who is the author of this document. The prosceution examined witness Devabhai Karsanbhai Mori at Exh.6, and according to his deposition, at the time when his deposition was recorded, he was serving as Teacher in Virdi Primary School, and as per his deposition, in his School, the accused had never studied. However, even during the course of his deposition, the alleged fake certificate Mark-17/1 was not shown to him, and no attempt was made to prove that the said certificate was not issued by any authority of his school. 5. The prosceution examined the Talati – cum – Secretary of Virdi Gram Panchayat, Harsukhlal Kanjibhai at Exh.8, to prove that in the month of June, 1960, no person, named Khant Chana Raghav (the accused) was born in that village, and his birth was not registered in the relevant record of the Panchayat. Be it as it is, but, the important aspect is that the prosecution did not adduce any evidence to show that the birth place of accused was Virdi. In absence of such evidence, the say of this witness Harsukhlal Kanjibhai in his deposition that birth of accused was not registered in Virdi Gram Panchayat, looses its importance. The prosecution examined witness Chanabhai Jasabhai Zala at Exh.17, who was serving in Forest Department, and during his examination in Chief, he stated that he came to know that the accused obtained job by tendering a fake certificate. He further stated that the accused was CR.A/1009/1994 6/7 JUDGMENT appointed on 02.01.1982, however, he stated that he was not the appointing authority of the accused, but the appointing authority was the D.F.O. He only received the service-book of the accused. In his cross- examination, he admitted that he had no occasion to see any document, which the accused might have produced at the time of getting job. He even admitted that the accused did not produce any record before him. 6. However, perusing the impugned judgment of the Trial Court, it appears that the learned Magistrate observed that the prosceution failed to prove that the accused tendered the so-called fake certificate before the Forest Department at the time of getting job. Ordinarily, any person who seeks job, produces necessary testimonials before the appointing authority. But, so far as this case is concerned, the prosecution failed to prove that it was the accused who forged the certificate. Even the prosecution failed to tender any evidence about the certificate Mark 17/1. As stated above, the only witness who could have thrown some light about the certificate Mark – 17/1 was the teacher of Virdi Primary School, Mr.Devabhai Karsanbhai Mori, examined at Exh.6, but nowhere during the course of his entire depsition the certifcate was even shown to him by the prosecution. Even the prosecution failed to produce any evidence as to what was the required qualification of Bit-Guard in Forest Department of the State in the year 1982. As stated above, even the origin of this case which is the application made by witness Bhana Laxman to D.S.P., Junagadh is not produced by the prosecution. As stated earlier, in connection with this offence, Mr.K.D. Parmar, Unarmed Police Constable, lodged the FIR, but the said complainant is not examined as witness in the Trial Court, and no explanation is forthcoming for not examining the complainant. The resultant, effect is that even the important document like FIR remained unexhibited on the record of the Trial Court, and the same is not proved. CR.A/1009/1994 7/7 JUDGMENT 7. Considering the entire discussion, as above, there is no reason whatsoever for this Appellate Court, to interfere with the findings of acquittal recorded by the Trial Court. In the result, the appeal preferred by the State Government deserves to be dismissed, and is hereby dismissed. (J.C. Upadhyaya, J.) binoy