Criminal Revision No. 1562 of 2002 1 Criminal Revision No. 1563 of 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1562 of 2002 Date of Decision :27.07.2009 Smt. Rattan Kaur w/o Sh. Joginder Singh r/o village Sahlon, Tehsil and District Nawan Shahar. ...Revision-Petitioner Versus 1. State of Punjab 2. Amar Singh s/o Nukhra Singh s/o Bachint Singh; 3. Kewal Singh s/o Mohinder Singh s/o Dit Ram; 4. Joginder Kaur w/o Amar Singh s/o Nukhra Singh; r/o village Narur, Tehsil Phagwara, District Kapurthala. 5. Dilbagh Singh s/o Ishar Singh s/o Dalip Singh, r/o village Randhirgarh, Tehsil Phagwara, District Kapurthala. ....Respondents Criminal Revision No. 1563 of 2002 Date of Decision :27.07.2009 Smt. Rattan Kaur w/o Sh. Joginder Singh r/o village Sahlon, Tehsil and District Nawan Shahar. ...Revision-Petitioner Versus 1. State of Punjab 2. Bhag Ram s/o Sh. Bishan Dass s/o Labhu Ram, r/o village Narur, Tehsil Phagwara, District Kapurthala. ....Respondents Criminal Revision No. 1562 of 2002 2 Criminal Revision No. 1563 of 2002 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. N.C. Kinra, Advocate, for the revision-petitioner. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for respondent No. 1. None for respondents No. 2 to 5, despite due service, in Criminal Revision No. 1562 of 2002. Mr. S.S. Brar, Advocate, for respondent No. 2, in Criminal Revision No. 1563 of 2002. * * * * SHAM SUNDER, J. This judgement shall dispose of Criminal Revision No. 1562 of 2002, and Criminal Revision No. 1563 of 2002, filed by Smt. Rattan Kaur, revision-petitioner (complainant), against the judgement, dated 20.04.2002, rendered by the Court of Additional Sessions Judge, Kapurthala, vide which, it accepted the appeal, and acquitted the accused, against the judgement of conviction and the order of sentence, dated 19.10.2000, rendered by the Court of Sub Divisional Judicial Magistrate, Phagwara. 2. The facts, in brief, are that, Raj Kaur was a resident of village Narur. Her husband died before 01.03.1989, leaving her issue- less. She was in possession of the land, measuring 16 ½ killas. She was giving the same on lease (theka) and maintaining herself with that income. On 31.01.1989, at about 8.00 PM, she was present, in her Criminal Revision No. 1562 of 2002 3 Criminal Revision No. 1563 of 2002 house, alongwith her relative Shiv Singh son of Bachittar Singh, r/o village Narur,and Gurbachan Singh son of Kartar Singh, when Amar Singh, Bhag Ram, Dilbagh Singh, Lambardar, Kewal Singh, Davinder Kumar Sharma, Naib Tehsildar, Manmohan Lal, Registration Clerk, and Sat Pal, Deed Writer, visited her, and told her that the entries in the old khasra girdawaris, were to be got corrected. On account of this reason, her thumb impressions, were obtained, on some papers. Thereafter, Raj Kaur, came to know, that a number of sale deeds qua her land, were forged and fabricated, in the names of Joginder Kaur, Ravinder Kaur, Bhag Ram, and Tilak Raj, without any payment of sale consideration to her. She also came to know that besides the agricultural land, in her possession, Bhag Ram, had also forged and fabricated sale deed qua her immovable property, situated in the abadi. On the basis of the aforesaid statement of Raj Kaur, a criminal case was registered, against the accused. The statements of the witnesses were recorded. The site plan was prepared with correct marginal notes. In pursuance of the disclosure statement of Amar Singh, some sale deeds, were recovered, from his possession. Bhag Ram, accused, also produced the sale deed, which was taken into Police possession. After the completion of investigation, the accused, were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 465, 468, 471, 420 and 120-B of the Indian Penal Code, was framed against them, which was read-over and Criminal Revision No. 1562 of 2002 4 Criminal Revision No. 1563 of 2002 explained to them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Pargan Ram (PW1), Jagjit Singh (PW2), S.R. Lamba (PW3), Assistant Sub Inspector Darshan Singh (PW4), Assistant Sub Inspector Tarsem Singh (PW5), Raj Kumar (PW6), Raj Kumar son of Charan Dass (PW7), Gurmail Singh (PW8), Des Raj (PW9), Sh. S.M. Handa, Advocate (PW10), Shiv Singh (PW11), Gurbachan Singh (PW12), and Surinderpal Singh, Investigating Officer (PW13). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Amar Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that a false case was registered against him. He further stated that the sale deeds, were rightly executed. He further stated that he was not present, at the time of execution of the sale deeds. 6. Joginder Kaur, accused, in her statement, under Section 313 of the Code of Criminal Procedure, stated that she was innocent. 7. Kewal Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that the case was false. 8. Dilbagh Singh, accused, in his statement, under Section 313 Criminal Revision No. 1562 of 2002 5 Criminal Revision No. 1563 of 2002 of the Code of Criminal Procedure, stated that the sale deeds PA and PB, were rightly executed by Raj Kaur. He further stated that the sale consideration, was paid to the vendor, before the Sub Registrar. He further stated that the sale deeds were valid. 9. Ravinder Kaur, Tilak Raj, Sat Pal and Harjit Singh, accused, were declared proclaimed offenders, whereas, Davinder Kumar, Naib Tehsildar, died, during the pendency of the trial. 10. During the pendency of trial Raj Kaur, complainant died. 11. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 12. Feeling aggrieved, two appeals were preferred by Amar Singh, Kewal Singh, Joginder Kaur, Dilbagh Singh and Bhag Ram, accused (now respondents), which were accepted, by the Court of Additional Sessions Judge, Kapurthala, vide judgement, dated 20.04.2002. 12-A. Feeling dissatisfied, the instant revision-petition, was filed by Rattan Kaur, legal heir of Raj Kaur, complainant (since deceased). 13. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case, carefully. 14. The Counsel for the revision-petitioner, submitted that a lady of 80 years, was defrauded, and the accused/respondents, took the advantage of her advanced age. He further submitted that they forged the sale deeds of her 16 ½ acres of agricultural land, in their favour. He Criminal Revision No. 1562 of 2002 6 Criminal Revision No. 1563 of 2002 further submitted that this aspect of the matter, was not considered, by the Additional Sessions Judge, while accepting the appeals, against their conviction and sentence. He further submitted that the judgements of the Civil Courts, were against the accused/respondents, which were a part and parcel of the judicial file. He further submitted that the said decision was not taken into consideration by the Appellate Court, at the time of deciding the appeals. He further submitted that the acquittal of the accused/respondents, was mainly directed by the Appellate Court, on the ground, that there was delay of one month, in lodging the first information report, and that Smt. Raj Kaur was not examined. He further submitted that when the complainant, came to know about the forgery, having been committed, after obtaining copies of the sale deeds, she lodged the first information report, within a month of the commission of the offences. He further submitted that everything was in black and white, and nothing, could be manufactured. He further submitted that Raj Kaur, died, during the pendency of the case, and, therefore, could not be examined. He further submitted that the Appellate Court, therefore, could not take into consideration the non-examination of Raj Kaur, as one of the grounds, for acquittal of the accused/respondents. He further submitted that the extra-judicial confession of some of the accused/respondents, and other material pieces of evidence, were not taken into consideration, by the Appellate Court, while acquitting the accused/respondents. He further submitted that the judgement of the Appellate Court, acquitting the Criminal Revision No. 1562 of 2002 7 Criminal Revision No. 1563 of 2002 accused/respondents, being the result of mis-reading and mis- appreciating, and non-taking into consideration the material pieces of evidence, was illegal, and liable to be set aside. 15. On the other hand, the Counsel for the respondents, submitted that the criminal case, was required to be proved, beyond a reasonable doubt, whereas the civil case, was required to be proved, on the preponderance of evidence. They further submitted that the judgement of the Civil Court, was only binding upon the Criminal Court, to some extent. They further submitted that Civil Appeal No. 279 dated 26.08.97, was filed by Gurbachan Singh and seven others appellants, against Dharam Kaur etc., whereas, Civil Appeal No. 303 of 15.09.1987, was filed by Jasbir Singh and others against Dharam Kaur etc., against the judgement and decree dated 29.07.1997, rendered by the Court of Additional Civil Judge (Senior Division), Phagwara. They further submitted that both the appeals were accepted by the Court of District Judge, Kapurthala, vide judgement and decree dated 26.09.2002. They further submitted that Regular Second Appeal No. 808 of 2003, was also filed, against the judgement and decree, rendered by the District Judge, Kapurthala, which was also dismissed. They further submitted that the Appellate Court, took into consideration, the entire evidence produced, on record. They further submitted that the judgement of acquittal, rendered by the Appellate Court, did not suffer from any illegality, or perversity. They further submitted that this Court in its revisional jurisdiction, cannot interfere into the judgement of the Criminal Revision No. 1562 of 2002 8 Criminal Revision No. 1563 of 2002 Appellate Court, until and unless, it comes to the conclusion, that the same, is the result of mis-reading or mis-appreciation of the evidence, and, as such, illegal. They further submitted that the revision-petitions, were liable to be dismissed. 16. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petitions, are liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in its revisional jurisdiction, is not to reappreciate and reappraise the evidence, until and unless, it comes to the conclusion, that the findings recorded by the trial Court, are perverse, illegal or erroneous, on account of misreading and misappreciating the evidence, or non-taking into consideration the material piece of evidence. The High Court, in its revisional jurisdiction, is not to reach a finding different from the Appellate Court, at the instance of a private party. The revisional Court exercises only a limited jurisdiction, and cannot act as an Appellate Court. The scope of revision against acquittal, was well discussed by the Apex Court, in a judgement rendered in Bindeshwari Prasad Singh @ B.P. Singh and others Vs. State of Bihar (Now Jharkhand) and another 2002(4) RCR (Criminal) 61 (S.C.). In the said case, their Lordships of the Apex Court observed that, in the absence of any legal infirmity, either in the procedure, or in the conduct of trial, there was no justification, for the High Court, to interfere in exercise of its revisional jurisdiction. In Bindeshwari Criminal Revision No. 1562 of 2002 9 Criminal Revision No. 1563 of 2002 Prasad Singh's case (supra), their Lordships also placed reliance on D. Stephens Vs. Nosibolla AIR 1951, Supreme Court 196, K.C. Reddy Vs. State of Andhra Pradesh AIR 1962 SC 1788, Akalu Ahir and others Vs. Ramdeo Ram (1973) 2 SCC 583, Patakalapti Narayana Gajapathi Raju and others Vs. Bonapalli Peda Appadu and another, AIR 1975 SC 1854, and Mahendra Pratap Singh Vs. Sarju Singh AIR 1968 SC 707. Similar principle of law, was laid down in Gurmail Singh Vs. Boga Singh and others, 2005(1) RCR (Criminal) 623. Keeping in view the principle of law, laid down, in the aforesaid cases, let us see, whether the judgement of the Appellate Court suffers from illegality or perversity or not. The Appellate Court, after proper reading and due appreciation of the evidence, on record, held that there was no evidence, on record, that the khasra girdawari entries, were in the name of some other persons, and on the pretext of correction of the same, in the name of Raj Kaur, her thumb impressions, were taken, on some documents, which were converted into sale deeds, later on; that the entries of the khasra girdawari, were in the name of Raj Kaur, and, as such, there was no question of her obtaining thumb impressions, on some documents, for the correction of the entries; that the alleged thumb impressions of Raj Kaur, were taken, on 31.01.89, and the sale deeds were also dated 31.01.89, but she made a complaint, on the basis whereof, the first information report, was registered, on 01.03.89; if the thumb impressions of Raj Kaur, had been obtained, in the manner, detailed in the first information report, then she was required to file a Criminal Revision No. 1562 of 2002 10 Criminal Revision No. 1563 of 2002 complaint immediately after the alleged forgery of the sale deeds; that the thumb impressions of Raj Kaur, were also obtained by the Deed Writer, in his register; that if Raj Kaur, did not execute any registered sale deed, the fact, as to under what circumstances, her thumb impressions, were obtained, in the register of the Deed Writer, remained unexplained; that no doubt, Shiv Singh, PW11, stated that after about 20/25 days from 31.01.89, Bhag Ram, accused, made an extra-judicial confession, before him, and then he and Gurbachan Singh, came to know about the incident, but when he was confronted with his previous statement DA, there was no reference, with regard to the making of extra-judicial confession by Bhag Ram, before him and, as such, the alleged extra-judicial confession was a fabricated circumstance; that Harjit Singh, was the main accused, who allegedly forged and fabricated the sale deed, but his name, did not figure, in the first information report; that from D5, copy of the order dated 06.09.93, it was evident, that Civil Suit No. 59 of 28.01.93, instituted by Gurbachan Singh and others, challenging the sale deeds dated 31.01.1989 executed by Raj Kaur, was dismissed as withdrawn, on 06.09.93; that if the sale deeds were the result of fraud, then there was no idea of getting the Civil Suit dismissed as withdrawn; that Raj Kaur, through attorney Shiv Singh filed Civil Suit No. 52 against Joginder Kaur and Ravinder Kaur, wherein, sale deed, in question, qua land measuring 70 kanals 9 marlas, was challenged, but in view of the statement of the Attorney, the suit was dismissed as withdrawn on Criminal Revision No. 1562 of 2002 11 Criminal Revision No. 1563 of 2002 04.12.89, vide order D2; that in case the sale deed qua land measuring 70 kanals 9 marlas, was forged and fabricated, then there was no idea to withdraw the suit instituted by Raj Kaur, through her Attorney; that Tilak Raj and Bhag Ram, appeared in the Court, and admitted the claim of Raj Kaur, and in view of their statements suit No. 53, was decreed, on 20.04.89; and that no finding was recorded by the trial Court, in that suit on merits, that the sale deeds dated 31.01.1989, were forged and fabricated documents. The judgement of acquittal, rendered by the Appellate Court, is based, on the correct appreciation of evidence, and law, on the point. There is nothing, on the record, that the Appellate Court, mis-appreciated and mis-read the evidence, or ignored any material piece of evidence, and fell into a legal error, in acquitting the accused. This Court, cannot reappreciate and reappraise the evidence, in its revisional jurisdiction. 17. Coming to the factum, whether the judgement of the Civil Court, is binding, on the Criminal Court, it was held in K.G. Premshanker Vs. Inspector of Police and another, (2002)8, SCC, 87, that the decision of the Civil Court, shall be relevant, if conditions of any of Sections 40 to 43, are satisfied, but it cannot be said, that the same would be conclusive, except as provided in Section 41. If the judgement, order or decree of Civil Court, is relevant, as provided, under Sections 40 and 42, then Court has to decide, to what extent, it is binding, with regard to matters decided therein. Therefore, in each case, it has to be ascertained, whether judgement, decree or order, is relevant, Criminal Revision No. 1562 of 2002 12 Criminal Revision No. 1563 of 2002 and, if so, its effect. In the instant case, the prosecution was required to prove, beyond a reasonable doubt, by leading cogent and convincing independent evidence that the sale deeds dated 31.01.1989 executed by Raj Kaur were the result of fraud, forgery and misrepresentation. On the other hand the civil case was required to be decided on the preponderance of evidence. Merely, on the basis of the Civil Court judgements, it could not be conclusively held, in the criminal trial, that the sale deeds were the result of fraud, forgery and misrepresentation. Under these circumstances, the judgement of the Civil Court, cannot be said to be binding, on the Criminal Court, for the purpose of deciding the guilt of the accused, in a criminal case. In B.N. Kashyap Vs. Emperor, AIR 1945, Lahore 23, a Full Bench of the Lahore High Court considered the following question:- “When there are concurrent proceedings covering the same ground before a criminal court and a civil court, the parties being substantially the same, would the judgement of the civil court, if obtained first, be admissible in evidence before the criminal court in proof or disproof of the fact on which the prosecution is based?” In that context while deciding the said question the Court observed thus: In other words, the short point to decide is whether the finding on certain facts by a civil court is relevant before the criminal court when it is called upon to give a finding on the same facts or vice versa? The Evidence Act being exhaustive, the answer to this question depends upon the correct interpretation of the relevant provisions, contained in that Act regardless of the fact whether the conclusion at which one ultimately arrives is in Criminal Revision No. 1562 of 2002 13 Criminal Revision No. 1563 of 2002 accordance with what was characterized before us during the arguments at the Bar to a common-sense view of things or not. In construing a statute like the Evidence Act, where any fact intended to be established has to be in accordance with the scheme of the Act, found to be relevant under a provision contained in the Act before it can be allowed to be proved, any argument based on plausibility can have no effect. I must therefore ignore any other consideration and confine myself strictly to the provisions of the Act. Thereafter, the Court referred to Sections 42 and 43 of the Evidence Act. After considering the said questions, the Court observed as under: Under Section 40 of the Act, previous judgements are admissible in support of a plea of res judicata in civil cases or of autre fois acquit or autre fois convict in criminal cases. Judgements such as those the relevancy whereof we have been called upon to determine do not fall under this category. Nor can they fall under Section 41 of the Act which only makes a final judgement of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, conferring upon, taking away from or declaring any person to be entitled to any legal character or to be entitled to any specific thing absolutely, relevant when the existence of any such legal character or the title to any such thing is relevant. They do not also fall within the purview of Section 42 of the Act as they do not relate to matters of a public nature. Section 43 of the Act positively declares judgements other than those mentioned in Sections 40, 41 and 42 to be irrelevant unless their existence is a fact in issue or is relevant under some other provision of the Act. It is quite clear that the mere existence of a judgement in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wished to rely on Section 11 of the Act. But I cannot Criminal Revision No. 1562 of 2002 14 Criminal Revision No. 1563 of 2002 see how could that section have any application when the existence of that judgement as apart from any finding contained therein or even the finding itself could neither be inconsistent with any fact in issue or a relevant fact. Nor could such judgements either by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact in any subsequent proceedings highly probable or improbable. This section only refers to certain facts which are either themselves inconsistent with, or make the existence or non-existence of, the fact in issue or a relevant fact highly probable or improbable and has no reference to opinions of certain persons in regard to those facts. It does not make such opinions to be relevant and judgements after all of whatever authority are nothing but opinion as to the existence or non-existence of certain facts. These opinions cannot be regarded to be such facts as would fall within the meaning of Section 11 of the Act unless the existence of these opinions is a fact in issue or a relevant fact which is of course a different matter. Finally, after considering the various decisions, the Court held thus: There is no reason in my judgement as to why the decision of the civil court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a civil court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to criminal courts to go behind the findings of the civil court is to place the latter without any valid reasons in a much higher position than what it actually occupies in the system of administration of this Country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over Criminal Revision No. 1562 of 2002 15 Criminal Revision No. 1563 of 2002 which it has really no control. The fact is that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the criminal court, which, unhampered by the civil court, is fully competent to decide the questions that arise before it for its decision and where in the nature of things there must be a speedy disposal.” 18. In Kharkan Vs. State of U.P., AIR 1965 (SC) 83, the Court observed thus: “The earlier judgement can only be relevant if it fulfills the conditions laid down by the Indian Evidence Act in Sections 40 to 43. The earlier judgement is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence. What emerges from the aforesaid discussion is- (1) the previous judgement which is final can be