IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.152 of 2007 Date of decision : March 16, 2011 State of H.P. ….Appellant. Versus Durga Dass Bhardwaj and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Vikas Rathore, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : M/s Onkar Jairath, Ajay Sharma and N.S. Chandel, Advocates. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 25th September, 2006 of learned Special Judge, whereby respondents Durga Dass Bhardwaj and others (all numbering 33) have been acquitted of the charge, under Sections 420, 467, 468, 471, read with Sections 109, 34 & 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. 2. Respondents were challaned by the police, on the allegations that respondents No.1 to 3, namely Durga Dass Bhardwaj, Jagdish Singh and Negeshwar Prasad, had conspired to issue fake JBT diplomas to unemployed young people, by charging hefty amounts of money from Whether reporters of the local papers may be allowed to see the judgment? …2… them. Other respondents, numbering 30, were alleged to have obtained fake certificates from them, by making illegal payments to the above-named three respondents. Respondent Jagdish Singh was employed as Vigilance Officer with the Bihar Vidyalaya Pariksha Samiti, in the early eighties. Taking advantage of his position in the said Samiti, he entered into a conspiracy with respondent Durga Dass Bhardwaj, resident of village Nagrota Surian, Tehsil Dehra in Kangra District and respondent Nageshwar Prasad, Principal of Chhota Nagpur Prathmic Shikshak Shiksha Mahavidyalaya, Ranchi. 3. As per conspiracy, fake certificatres were to be issued to the candidates, looking for JBT diplomas, on payment of money. Respondent Durga Dass Bhardwaj was to find persons, looking for such certificates, in Himachal Pradesh. Respondent Nageshwar Prasad, who was Principal of the aforesaid Chhota Nagpur Prathmic Shikshak Shiksha Mahavidyalaya, Ranchi, was to issue fake certificates that the candidates had attended his school, while respondent Jagdish Singh was to arrange fake certificates. 4. Respondents No.4 to 33 obtained fake certificates, by paying huge amounts of money, varying from `10,000/- to `15,000/-. On the strength of those fake diplomas/certificates, respondents No.4 to 33 applied …3… for the posts of JBTs, in Himachal Pradesh, when such posts were advertised, in the year 1988. 5. PW-2 Shri S.K. Behal was the Director of Primary Education those days. Applications were required to be submitted to him. While scrutinizing the applications, he entertained a suspicion about the genuineness of certificates submitted by 41 candidates, including respondents No.4 to 33. He discussed the matter with the Officers, working in his Directorate, and deputed PW-30 Shri P.C. Pandey, one of the Assistant Directors, to Patna in Bihar State, to find out from the authorities of Bihar Vidyalaya Pariksha Samiti, whether certificates, numbering 41, submitted by some of the candidates, including respondents No.4 to 33, were genuine or not. Said PW-30 Shri P.C. Pandey submitted report Ex. PW-2/D-2, alongwith documents, in the form of report Ex. PW-2/D-1, obtained from Bihar Vidyalaya Pariksha Samiti, Patna. As per his report and the information gathered from the said Samiti, 38 out of 41 certificates, including those submitted by respondents No.4 to 33, were fake, as some of the candidates had taken the examination, against roll numbers mentioned in the certificates and atleast in three cases, i.e. of respondents Mamta Sharma, Chaman Lal and Lekh Raj, …4… against the roll numbers mentioned in their certificates, some other candidates had taken examination. 6. When the matter was still under process in the Office of PW-2 Shri S.K. Behal, Director of Primary Education, a letter Ex.PW-2/A, alongwith lists Ex.PW-2/B-1 to Ex.PW-2/B-3, purporting to be from the Office of Bihar Vidyalaya Pariksha Samiti, Patna, was received. In this letter Ex.PW-2/A, it was mentioned that earlier information that the certificates were fake was not correct and that as a matter of fact all the candidates had taken examination and their certificates were genuine, as per record available with the Samiti. PW-2 Shri S.K. Behal then made a report to Superintendent of Police, Enforcement Department, South Zone, Shimla, vide communication Ex. PW-2/C. The said Superintendent of Police, Enforcement Department, deputed PW-3 Inspector Pratap Singh to Patna to enquire into the matter. The witness, after visiting Patna, sent a report Ex. PW-3/A to SHO, Police Station Enforcement, South Zone, Shimla, on the basis of which case was formally registered vide FIR Ex. PW-1/A. 7. During the course of investigation, Bihar Vidyalaya Pariksha Samiti was approached to intimate whether the certificates issued in favour of respondents No.4 to 33 were genuine or fake. Respondent Jagdish …5… Singh, who was then working as Joint Secretary, wrote letter Ex. PW-28/A to the Enforcement Department that all the certificates were fake. Specimen signatures and writings of respondents Jagdish Singh and Nageshwar Prasad were taken. Handwriting Expert, namely PW-21 Shri Mohinder Singh, vide report Ex.PW-21/C-1, opined that signatures on provisional certificates Ex. PW-1/A (in the name of respondent Lekh Raj), Ex. PW-5/C (in the name of respondent Mamta Sharma) and Ex. PW-21/A-1 (in the name of respondent Chaman Lal) were similar to the admitted and specimen signatures of respondent Nageshwar Prasad, on Ex. PW-21/B-23 to Ex. PW-23/B-29. 8. Specimen handwritings of respondent Jagdish Singh were also obtained. His specimen writings and signatures are on documents Ex. PW-21/B-1 to Ex. PW- 21/B-20 and admitted writings are on Ex. PW-6/A-1 to Ex. PW-6/A-5. The same were sent to Handwriting Expert, PW-21 Shri Mohinder Singh, for comparison with his questioned signatures and writings on various documents. The Expert opined that writing Marked Q-143, on a photostat copy matched with the aforesaid standard writings. However, his opinion was subject to the presumption that Ex. PW-21/A-2, containing questioned writing Marked Q-143 was the true photocopy of the original. …6… 9. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, alongwith relevant papers, was filed in the Court of Special Judge, who, after supplying copies of the said report and documents filed therewith to the respondents, heard learned Public Prosecutor and learned defence counsel and found prima facie case against all the respondents. Consequently, respondents were charged with the aforesaid offences. They pleaded not guilty. Therefore, they were tried. 10. Prosecution examined 30 witnesses to bring the charge home to the respondents. It also proved the opinion of the Handwriting Expert and the allegedly forged certificates and the reports received from Bihar Vidyalaya Pariksha Samiti, Patna. Respondents, in their examination, under Section 313 of the Code of Criminal Procedure, denied the allegations and pleaded innocence. 11. We have heard learned Deputy Advocate General as also learned counsel representing the respondents and gone through the record. 12. We may observe, at the very outset, that the opinion evidence of PW-21 Shri Mohinder Singh is of no avail to the prosecution, not only on account of its having not been corroborated by any other evidence, but also for the reason that the alleged specimen and admitted …7… writings of respondents Nageshwar Prasad and Jagdish Singh are not proved to be theirs, inasmuch as neither the Magistrates of Patna, before whom their alleged specimen writings/signatures were obtained, were examined as witnesses nor was any subordinate official of those Magistrates examined and also nobody testified that the alleged admitted writings/signatures of these two respondents were, in fact, their writings/signatures. Otherwise also, as we would be demonstrating from prosecution’s own evidence, the opinion evidence, even if taken to be correct, does not prove the charge. 13. Evidence adduced by the prosecution, in support of the allegation that the certificates are fake, consists of report Ex. PW-2/D-1, which was handed over to PW-30 Shri P.C. Pandey, by the authorities of Bihar Vidyalaya Pariksha Samiti, Patna, and letter Ex. PW-28/A, allegedly addressed by respondent Jagdish Singh to the Investigating Officer of the case. Writings given by the officials of Bihar Vidyalaya Pariksha Samiti, Patna, cannot be treated as primary evidence of the facts stated therein. These writings, as per their contents, are based on the record available with the Bihar Vidyalaya Pariksha Samiti. It was that record, on which these writings are based, which was the primary evidence, in the case. That evidence has been withheld by the prosecution and no …8… explanation for not producing the same has been put forward. As a matter of fact, it appears from the testimony of the Investigating Officer that such record was not even sought to be taken into possession. In any case, the prosecution could have summoned the concerned officials of the Bihar Vidyalaya Pariksha Samiti, Patna, alongwith the record, during the trial, but it did not choose to do so. There being no explanation, leave alone justification, for not producing the primary evidence, secondary evidence, in the nature of the aforesaid documents Ex. W-2/D-1 and letter Ex. PW-28/A, cannot be looked into. 14. Abovestated position apart, what is written in the aforesaid two documents, Ex.PW-2/D-1 an Ex.PW- 28/A, is contradicted by another letter, purporting to have been issued by Secretary of Bihar Vidyalaya Pariksha Samiti, Patna. This letter is Ex. PW-2/A. As per this letter and its enclosures Ex. PW-2/B-1 to Ex. PW-2/B-3, none of the certificates, including those of respondents No.4 to 33, in respect of which query had been made by the Director of Primary Education, Himachal Pradesh, was fake. Though PW-2 Shri S.K. Behal, the then Director of Primary Education, testified that he suspected the genuineness of letter Ex. PW-2/A and the documents Ex. PW-2/B-1 to Ex. PW-2/B-3 received with this letter, but …9… his bare statement would not prove that these documents are not genuine, especially when in communication Ex. PW-2/C, which he addressed to the Superintendent of Police, Enforcement Department, not only that there is no reference that this document is suspicious, but in fact this document has been referred to in a manner and context, which suggests that its genuineness or authenticity had not been doubted. When it is not shown that the document is not genuine and it is part of prosecution’s own evidence, no reliance can be placed upon the other two documents, i.e. Ex.PW-2/D-1 and Ex. PW-28/A, in which it is indicated that the certificates are fake. In other words, evidence led by the prosecution to prove the allegation of certificates being fake is self contradictory. As a result of the above discussion, we find no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J March 16, 2011(sd) ( Kuldip Singh ), J.