IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 220 of 1994 Date of decision: 30.10.2008 State of H.P. Appellant Versus Beer Singh and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. Ramakant Sharma, Advocate, for respondents No. 1 to 5, 7 to 9, 11 and 12. Per V.K.Ahuja, J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, dated 16.7.1993, vide which the respondents were acquitted of the charge framed against them under Sections 467, 468, 469, 471, 419, 420 read with Section 120-B I.P.C. Briefly stated the facts of the case are that a gift deed was executed by one Smt. Roop Dei and others on 13.8.1986 in favour of several persons. The mutation was also attested on the basis of the gift deed by PW-3 R.L. Rao, the then Tehsildar, Nalagarh. Subsequently, it Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 came to the knowledge of the said Tehsildar that one of the person i.e. the donor who allegedly executed the gift deed was already dead for the last several years. He recorded some evidence and thereafter applied to the Collector for review of the mutation alleging that since one of the executants of the gift deed was already dead and somebody had impersonated on her behalf, the mutation was liable to be cancelled. After getting permission from the Collector and after conducting an inquiry, he passed an order canceling the mutation and also reported the matter to the police. The case was registered as against the donees and other witnesses who had appeared before the Registrar at the time of attestation of the gift deed including the identifier and after investigation, the challan was filed as against the respondents who were tried by the learned trial Court under various sections as mentioned above leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record. The first and foremost question which arises for consideration before the learned trial Court was as to whether it has been established that Smt. Roop Dei who is alleged to have executed the gift deed dated 13.8.1986 was already dead on that day and some other person had impersonated on her behalf before the Registrar. There is no evidence on record to show that as to who had impersonated allegedly on behalf of Smt. Roop Dei executant. Once it was established that Smt. Roop Dei, the alleged executant of the gift deed was already dead, then the next question would have arisen for consideration as to whether the accused persons i.e. the beneficiaries and the witnesses and the identifier had wrongly identified the lady present as Roop Dei, executant and this was to be explained by them that Roop Dei was not 3 dead and the person present at the time of execution of the gift deed was a real person and had not been impersonated and wrongly identified by them. However, the evidence in regard to the fact that Roop Dei one of the executants of the gift deed was already dead is lacking in the present case. To prove this fact and other facts that Smt. Roop Dei was dead on the date of the execution of the gift deed, the prosecution had examined 14 witnesses. However, to prove the factum of death, the prosecution had relied upon the testimony of PW-13 Talim Singh, Secretary of the Gram Panchayat, who stated that he was not joined by the police nor his statement was recorded by the police. However, he had brought the register in regard to the birth and deaths with him. He stated that Smt. Roop Dei wife of Lekha’s death date is entered in the register as 12.11.1975. His statement is oral and the facts had been stated by him from the record and the copy of the entry in regard to the death should have been produced and proved from his statement before his evidence could be legally read in evidence. The witness is stating from the record but the said record never saw the light of the day since its attested copy was not proved on record from this witness who stated the facts orally as per the record. In cross- examination, he admitted that the entry in his record to the death of Roop Dei is in the hand of previous Secretary and he cannot say if the entry is correct since no signatures of the person who made the entry are there against the said entry and there are no signatures of any officer who may have verified the entries in this register at any time. There is no other evidence on record to prove the death of Smt. Roop Dei. 4 It has also been observed by the learned trial Court that the best witness to prove the death of Smt. Roop Dei could be said to be the father of the deceased, namely, Kirpa Ram, whose statement was also recorded by Shri Rao, Sub Registrar, in review petition of the mutation but he was never examined by the prosecution. The learned trial Court had rightly observed that adverse inference has to be drawn against the prosecution under Section 114(g) of the Indian Evidence Act, for with-holding of material witness. It is also on record as observed by us that the Sub Registrar Shri Rao PW-3 had also recorded the statements of two of the maternal uncles of the deceased and one member of the Panchayat on 31.12.1986 but even they have not been examined by the prosecution to substantiate the fact as to when Smt. Roop Dei died. A perusal of the gift deed Ext. PW2/D shows that the particulars about the name of deceased, her parentage as given in the gift deed shows that her name has been mentioned as Smt. Roop Dei aged 27 years and then name of Ram Piari has been mentioned as aged 20 years, daughters of Smt. Bajji Muni, daughter of Kapuria, Paragna Rampur, Sub Tehsil Ram Shehar. It is, therefore, clear that the name of father of Smt. Roop Dei has not been mentioned in this gift deed as to who had executed this gift deed. The learned trial Court had also observed that the name of mother of Smt. Roop Dei is Bajji Muni as is evident from the perusal of Missal Haquiat and copies of Khasra Girdawaris Ext. PW2/C and Ext.PW2/H but there is nothing to show that Kirpa Ram was the husband of Smt. Bajji Muni and as such, was father of Smt. Roop Dei. The learned trial Court had wrongly not relied upon the statement of PW-3 Shri Rao observing that since he learnt about the death of Smt. Roop Dei on 2.2.1987, how he made a request to the Collector for 5 review of the mutation on 28.10.1986 vide his order Ext. PW3/C. To our mind, this observation was wrongly made by the learned trial Court without considering the facts and rather the statement of Shri Rao PW-3 was condemned without their being any reason to disbelieve him. A perusal of the record shows that the gift deed was executed on 13.8.1986. The Sub Registrar had not acquired the knowledge on 2.2.1987 as per the statement of the father of the deceased, namely, Kirpa Ram, but before he made a reference to the Collector for review vide his order dated 28.10.1986. He had mentioned in Ext. PW3/C reference to Collector dated 28.10.1986 that he had learnt that Smt. Roop Dei was already dead for the last 7/8 years. He never observed that this fact was learnt by him from the statement of Kirpa Ram, the father of the deceased. After the permission was granted to him on 31.10.1986 by the Collector as mentioned in Ext. PW3/C, he conducted the proceedings on 19.12.1986 and 31.12.1986 and recorded the statements of one Tulsi and Kanshi Ram, maternal uncles of Smt. Roop Dei and one Asha Ram, former member of Panchayat and then had summoned the father of the deceased for 2.2.1987. He recorded the statement Ext. PW-3/E of the father of the deceased, namely, Kirpa Ram on 2.2.1987 and then passed order for cancellation of the mutation. From the above discussion, it is clear that in the review proceedings four persons had appeared before the Sub Registrar but none was produced by the prosecution and no documentary evidence was placed on record to show that Smt. Roop Dei was already dead on 13.8.1986 when the gift deed was executed. There is no question of considering the evidence in regard to the handwriting expert since the gift deed allegedly bears the thumb mark of Smt. Roop Dei but until and 6 unless it was established that said Roop Dei was already dead, the evidence was irrelevant as to whether it bore the thumb mark of the deceased or not. Keeping in view all these facts, it is clear that the prosecution had failed to prove their case and final findings recorded by the learned trial Court holding that the prosecution had failed to prove their case beyond any reasonably doubt calls for no interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal, which is dismissed. The bail bonds furnished by the respondents shall stand discharged. ( Deepak Gupta ) Judge October 30, 2008 ( V.K. Ahuja ) (BSS) Judge 7