IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 516 / 2003 Date of decision: 22. 9. 2010 State of H.P. ….Appellant Versus Brahma Nand and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Appellant: Mr. A.K. Bansal, Additional Advocate General. For the respondents : M/s. Surinder Sharma, Shivank Panta and Paresh Sharma, Advocates. Surinder Singh J. (Oral) Acquittal of the respondents passed in criminal case No. 129/2 of 2002, decided on 25.8.2003, by the learned trial Court has been assailed in the present appeal by the State. 2. Heard and gone through the record. 3. Facts giving rise to the present appeal can be stated thus. In the month of November, 2000, General Elections of the Panchayats were declared by the State Government. The post of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Pradhan, Gram Panchayat Devna, in sub-Tehsil Nohradhar, District Sirmaur was reserved for the candidate belonging to OBC category. PW1 Som Dutt complainant filed his nomination for the post of Pradhan and Brahma Nand was his rival candidate, as OBC candidate. The date of scrutiny of the nomination papers was 30.11.2000. The nominations of both these persons along with others were accepted by the Assistant Returning Officer (A.R.O.). It is alleged that on 30.11.2000, complainant Som Dutt moved an application to the A.R.O. for furnishing information whether respondent No. 1 Brahma Nand had filed any OBC certificate along with his nomination paper. A.R.O. made endorsement thereon that respondent Brahma Nand had filed a certificate on 30.11.2000 showing him from OBC category. 4. It is alleged that respondent Brahma Nand was neither a OBC candidate nor was issued any such certificate by any authority. The complainant had also filed an application before the S.D.M. Nahan to seek information with respect to issuance of such a certificate, but it was informed that as per record, a certificate was only issued in the name of Lekh Ram, father of respondent No. 2 - 3 - against Sr. No. 946 on 29.11.2000. Thereafter vide another application, the complainant sought similar information from the Naib Tehsildar, who was also competent authority to issue certificate, he got the reply that no such certificate was issued in the name of respondent No. 1. Thereafter on 9th January, 2001 he filed the complaint Ext. PW12/B, under Sections 420, 408, 471, 201 and 120-B Indian Penal Code, in the court of Chief Judicial Magistrate Nahan. It was sent for registration of the case under Section 156(3) of the Code of Criminal Procedure which culminated into FIR No. 7 of 2001. 5. The police investigated the case and took into possession the photocopy of the alleged forged certificate Ext. PW11/B along with the office copy Ext. PW11/A which was issued in the name of Lekh Ram against the same serial number. The certificate Ext. PW11/B was alleged to have been produced by respondent No. 1 to the Assistant Returning Officer, as aforesaid. It transpired during the investigation of this case that respondent No. 2 Smt. Mira Bhardwaj, who was working as teacher in Dhar-Talion School, at the relevant time, had conspired with respondent No. 1 and engineered the photocopy Ext. PW11/B in the name of - 4 - respondent No. 1 which was used by him as an evidence before Assistant Returning Officer to show that he was a OBC candidate and respondent No. 2 forged the attestation of the said photocopy in the name of B.P.E.O. Nohradhar. Original was destroyed. 6. During the investigation, the admitted signatures and hand writings of respondent No. 2 were obtained from the School record concerned along with admitted writings of respondent No. 1. There after both these respondents were produced before the S.D.M. Nahan and their specimen signatures and hand writings were obtained. The admitted signatures and hand writings along with specimen handwritings and signatures were sent to the forensic science for comparison with the writings and signatures on disputed certificate. On comparison, the Handwriting Expert of the questioned document gave his opinion Ext. P1 vide which it was opined that the attestation made on the photocopy Ext. PW11/B over the stamp of the B.P.E.O. Nohradhar pertained to respondent No. 2, qua other writing no definite opinion was expressed by him. - 5 - 7. Further, investigation of the case revealed that respondent No. 2 Mira Bhardwaj was the supporter of respondent No. 1. She had proposed respondent No. 1. She also facilitated respondent No. 1 to manufacture and produce the fabricated certificate of OBC in his name. 8. Thus, finding a prima facie case under the aforesaid Sections, on the completion of the investigation, challan was presented in the Court for the trial of the respondents. 9. Respondents were charge sheeted for the offences aforesaid. They abjured their guilt and claimed trial. 10. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon them, were put to each of them which were denied. They took-up the stand of their false implication in the case because of election rivalry. 11. No evidence in defence was led. 12. At the end of the trial, respondents were acquitted by the learned trial Court on the ground that the hand writing expert was not examined to - 6 - prove his report Ext. P1. Further the ingredients of the offence charged were not proved. There was no evidence to establish the authorship of the alleged certificate Ext. PW11/B. 13. I have legally scanned and carefully reappraised the evidence on record. It stands established that one OBC certificate dated 29.11.2000, was issued by S.D.M. Nahan in favour of Lekh Ram father of respondent No. 2 vide Sr. No. 946 which was received by respondent No. 2 under her signatures which were appended by her on the office copy Ext. PW11/A. 14. Now the question arises whether the respondent No. 1 was not belonging to O.B.C. category and that the disputed photocopy Ext. PW11/B was used by him to show him wrongly a candidate belonging to OBC category, which was allegedly attested by respondent No. 2? The prosecution has examined PW8 Sushil Rana A.R.O. According to him, the last date for nomination was 29.11.2000. Respondent No. 1 filed his nomination on 27.11.2000. The date of scrutiny was fixed for 30.11.2000. At that time, he had not produced OBC certificate, but a photocopy to this effect was produced by him on 30.11.2000 which was issued - 7 - on 29.11.2000 by S.D.M., Nahan, which was attested by B.P.E.O. Nohradhar. These documents were deposited by him in the office of Tehsildar Sangrah on 3.12.2000. He further stated that the information with respect to the production of OBC certificate was also sought by the complainant and he made his endorsement thereon that respondent No. 1 had filed OBC certificate, as aforesaid. In cross- examination he admitted that respondent No. 1 had also field a certificate obtained from the Patwari which was duly endorsed by the Naib Tehsildar with respect to his being a candidate belonging to OBC category, which was not considered. 15. PW12 Sapender Singh the investigating Officer stated having collected the disputed certificate Ext. PW11/B from the office of District Panchayat Officer, Nahan but there is nothing on record to show that the document Ext. PW11/B was existing in the file of nomination papers, and there is also no evidence on record to exhibit that he had sought any permission to take into possession the said certificate from the nomination papers of respondent No. 1. Even the evidence so collected and produced in the court does not reveal that Tehsildar Sangrah had sent nomination files to the - 8 - District Panchayat Officer, Nahan. Further, there is no document showing in whose custody this record was kept in the office of District Panchayat Officer. So the origin and existence of this certificate in question in the office of District Panchayat Officer is questionable and is shrouded by suspicious circumstances in absence of the link evidence and also lack of the requisite documents to prove the fact of taking into possession by the Investigating Officer. 16. Further, there is an overwhelming evidence on record to show that respondent No. 1 belonged to the OBC category as his nephew Sunil is Bhat-Brahaman. He had also filed his nomination for the post of Pradhan, as an OBC candidate with the requisite certificate. Even the Investigating Officer (PW12) has admitted this fact. Further, the allegation against respondent No. 1 remains that whether he had used the certificate of Lekh Ram by substituting his name by preparing photocopy in connivance with respondent No. 2. To link both the respondents with the said certificate which is allegedly attested in the name of B.P.E.O. Nohradhar under the signature of respondent No. 2, prosecution heavily relied upon the report of the - 9 - hand writing expert Ext. P1, who is stated to have compared the signatures and hand writings on the disputed document, on the basis of the specimen handwriting and signature taken by sub Divisional Magistrate Rajgarh. This opinion cannot be relied upon for more than one reason. Firstly, the said Magistrate was not a competent officer to take specimen hand wring/signatures of the respondent as no inquiry or trial was admittedly pending before him. As a matter of fact, hand wring may be proved to be in the hand wiring of a particular individual by the evidence of a person familiar with the hand writing of that individual or by the testimony of an Expert competent to the comparison of hand writings on a scientific basis. A third method is comparison by the Court with the writing made in the presence of the Court or admitted or proved to be the writing of the person. Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. Where an - 10 - expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness. [See Fakhruddin versus The State of Madhya Pradesh AIR 1967 SC 1326]. 17. Further, the apex Court in Sukhvinder Singh and others vs. State of Punjab, 1994 SCC (Cri.) 1376, observed that even under Section 73 of the Indian Evidence Act it does not permit any Court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent Court. Section 73 of the Evidence Act cannot be made use of, for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial proceedings before the Court are pending and that - 11 - Court requires the writing for the purpose of ‘enabling it to compare’ the same. 18. In the instant case, prosecution did not examine any witness in terms of Section 47 of the Evidence Act who was familiar with the hand writings of respondent No. 1. It only relied on the strength of expert opinion of the Handwriting Expert under Section 45 of the Evidence Act which is not supported by the reasons the Court is also handicapped to form its opinion under Section 73 of the Evidence Act in absence of such reasons. Therefore, in view of the above situation, report of the Hand Writing Expert qua the signatures regarding attestation by respondent No. 2 on disputed certificate stands not proved therefore, report Ext. P1 is of no assistance. 19. For the foregoing reasons, in my opinion, the acquittal of the respondents cannot be interfered with as the prosecution evidence led before the learned trial Court could not meet the warp and woof of the prosecution case for the offence charged. As such the appeal sans merit, hence dismissed. Respondents are discharged by the bail bonds entered upon by them at any stage during the proceedings of this case. September 22, 2010 (Surinder Singh), (cm) Judge.