1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 136 of 2002 and Cr. Appeal No.149 of 2002. Judgment reserved on 7.4.2009 Date of decision: 23.4.2009 1. Sher Singh and others ...Appellants Vs. State of H.P. …. Respondent 2. Narinder Singh ….Appellant Vs. State of H.P. …Respondent _________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Vinay Thakur, Advocate, for appellants in (Crl. Appeal No.136/02). Mr. S.S. Mittal, Sr. Advocate with Mr. Dev Raj Dev, Advocate for appellant in (Cr. Appeal No.149/02). For the Respondent : Mr. Anshul Bansal, Addl. Advocate General. ( in both the appeals) Kuldip Singh, Judge This judgment shall dispose of Cr. Appeal No.136 of 2002 and Cr. Appeal No.149 of 2002, both having arisen from judgment dated 13.3.2002 passed by learned Special Judge, Kullu Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 in Corruption case No.01/2001 convicting and sentencing Sher Singh, Amar Nath and Narinder Singh under Sections 420, 120-B IPC read with Section 13(2) of Prevention of Corruption Act, 1988 and Kahan Singh under Section 420 read with Section 120-B IPC and sentenced them for various terms as mentioned in the impugned judgment. Cr. Appeal No.136 of 2002 has been filed by Sher Singh, Amar Nath and Kahan Singh and Cr. Appeal No.149 of 2002 has been filed by Narinder Singh. 2. The prosecution case, in brief, is that PW-2 Amra Devi had filed a complaint which was sent to Dy. S.P. (Vigilance), Kullu by Special Judge, Kullu on 30.5.1992. On the basis of preliminary report Ex.PW17/A received from PW-17 Lekh Raj Inspector, Special Judge, Kullu directed Vigilance Department to register a case for investigation and there upon FIR Ex.PW-1/A was registered on 11.6..1993 under Sections 420, 120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988 ( for short Act). 3. The further prosecution case is that one Atma Ram brother of Dhale Ram was non-occupancy tenant of land comprised in khasra Nos.62,146 and 155 measuring 8-9-0 bighas, village Reri, Phati and Kothi Bajaura, Tehsil and Disitrict Kullu vide jamabandi for the year 1958-59. Atma Ram died in the year 1966 and his widow Mani Devi occupied the tenancy land but Atma Ram continued to be recorded as non-occupancy tenant in the revenue record. Atma Ram and Mani Devi had no issue, they had adopted PW-2 Amra Devi daughter of Pune Ram their niece as their daughter. Mani Devi died in the year 1984 but before her death on 3 19.1.1979 through registered Will she bequeathed her property in favour of Amra Devi and mutation No.879 dated 22.11.1984 was sanctioned in favour of Amra Devi regarding property of Mani Devi. However, tenancy land comprised in khasra Nos. 62,146 and 155 continued to remain in the name of Atma Ram. 4. On 17.11.1988 vide rapat No.124 Ex.PW-3/A, a report was lodged with accused Narinder Singh Patwari, Bajaura who on the same day had entered mutation No.1088 Ex.PW-4/E under Section 45 of the H.P. Tenancy and Land Reforms Act (for short H.P. Tenancy Act). However, on 24.3.1989 Sher Singh accused the then Naib Tehsildar, Kullu at Bhunter got deleted Section 45 from the rapat in league and collusion with Amar Nath the then Field Kanungo by converting mutation from Section 45 to Section 104 of the H.P. Tenancy Act. He also got made other alterations in criminal conspiracy with nambardar and brother of deceased Atma Ram to cause wrongful loss to PW-2 Amra Devi and wrongful gain of the land valuing more than two and half lac to Dhale Ram. The alterations in mutation were intentionally made in conspiracy with each other by all accused to grab in illegal manner property owned by Amra Devi. The accused entered into criminal conspiracy to cheat Amra Devi by abusing their position as public servants. Amra Devi was forced to file civil suit against Dhale Ram who thereafter died and also got the illegal mutation reviewed by the Collector. It was alleged that all the accused in order to cause wrongful pecuniary advantage to Dhale Ram had entered into criminal conspiracy to cheat Amra Devi of land owned and possessed by her and in furtherance converted mutation of 4 inheritance from Section 45 to Section 104 of the H.P. Tenancy Act after deleting with mala-fide intention material portion. The accused Sher Singh, Amar Nath and Narinder were charged for the commission of offence punishable under Sections 420, 120-B IPC read with Section 13(2) of the Act and accused Kahan Singh was charged under Section 420 read with Section 120-B IPC. They denied the charge and claimed trial. The prosecution has examined 18 witnesses and has produced many documents on record. The statements of accused were recorded under Section 313 Cr.P.C. They denied the prosecution case but led no evidence in defence. The learned Special Judge convicted and sentenced the accused on 13.3.2002 as noticed above, hence this appeal. 5. I have heard Mr. S.S. Mittal, Senior Advocate and Mr. Vinay Thakur, Advocate for the appellants and Mr. Anshul Bansal, Addl. Advocate General for the respondent in both the appeals and have also gone through the record. It has been submitted on behalf of the appellants that no case under sections 420, 120-B IPC read with section 13(2) of the Act is made out against any of the appellants. The appellant Sher Singh had attested the mutation No.104 of the Act bonafide. Amar Nath appellant carried out corrections in column Nos.10, 12 13 and 15 of the mutation No.1088 Ex.PW-4/E on the direction of appellant Sher Singh, superior officer and therefore, no case is made out against Amar Nath. The appellant Narinder Singh was the patwari, he entered the mutation No.1088 Ex.PW-4/E under section 45 of the H.P. Tenancy Act. There is no allegation against him that he 5 made the cuttings in mutation Ex.PW-4/E, therefore, against him also no case is made out. The appellant Kahan Singh was the namberdar, the allegation against him is of identification of the beneficiary of the mutation. There is no allegation against him that he identified a wrong person. 6. The allegations of cheating and conspiracy against appellants are based upon suspicion only, there is no iota of evidence on record to prove cheating and conspiracy of appellants to attest mutation Ex.PW-4/E in favour of Dhale Ram. There is no allegation of the prosecution that for some monetary gain, any appellant had deprived PW-2 Amra Devi the land in question. The mutation does not confer any title and attestation of mutation Ex.PW-4/E in favour of particular person could not deprive the title of the rightful owner in the property covered by mutation Ex.PW- 4/E. Amra Devi ultimately got the property in dispute and it could not be said that she was deprived of the property covered by mutation Ex.PW-4/E. The bonafide act of appellant Sher Singh for attesting mutation is protected under Section 82 of the H.P. Tenancy Act. The learned Special Judge has misconstrued and misinterpreted the evidence on record and the legal position. The learned Addl. Advocate General has supported the impugned judgment and has submitted that no fault can be found with the impugned judgment. 7. On 17.11.1988 vide rapat No.124 Ex.PW-3/A, PW-2 Amra Devi had reported to the patwari that Atma Ram had died. The patwari, accordingly entered mutation No.1088 Ex.PW-4/E on 17.11.1988 under section 45 of the H.P. Tenancy Act. On 6 12.12.1988 vide rapat No.160 Ex.PW-3/B , patwari after giving the reference of order ( date is not clear) recorded that name of Dhale Ram instead of Atma Ram be entered as tenant on land comprised in khasra Nos.62,146 min, 155, measuring 8-9 bighas. On 24.1.1989 vide rapat No.182 Ex.PW-3/C, patwari has recorded that the Sub Divisional Officer has reviewed the order dated 7.12.1988 with the direction not to implement the order in the revenue record. 8. PW-2 Amra Devi has stated that land in question was possessed as tenant by Atma Ram, who died about 35 years ago, thereafter the land was possessed by Mani Devi wife of Atma Ram who has also died about 18 years ago. After the death of Mani Devi the land in question was possessed by her. Mani Devi had executed a deed of her entire property in her favour. On the death of Mani Devi she went to patwari, Bajaura for recording the land in her name. The accused Narinder was patwari at that time. The rapat was entered by the patwari but Amar Nath, kanungo, Sher Singh Naib Tehsildar and Kahan Singh entered the land in the name of Dhale Ram wrongly. Kahan Singh is the brother of Roop Singh who is son in law of Dhale Ram. She thereafter approached the revenue officer for cancellation of the wrong entry. She also filed civil suit which was decided in her favour. The land which was owned by Mani Devi on her death was mutated in her name, but the disputed land which was possessed by her as tenant was wrongly mutated in the name of Dhale Ram. At the time of attestation of mutation of ownership of land of Mani Devi she was identified by Kahan Singh nambardar. The mutation was entered in the name of Dhale Ram by the accused in order to grab her land. 7 9. Atma Ram died on 25.3.1966, as per death certificate Ex.PW-6/A, Mani Devi died on 3.5.1984 according to death certificate Ex.PW-6/B, Dhale Ram died on 3.10.1992 vide death certificate Ex.PW-7/A. It is admitted case of the prosecution that after the death of Atma Ram and even Mani Devi, the revenue record continued to show Atma Ram as tenant on the land in question. It appears no body reported the death of Atma Ram to the revenue authorities regarding the tenancy land of Atma Ram. H.P. Tenancy Act came into force w.e.f. 21.2.1974. It is also not in dispute that on the death of Atma Ram his tenancy land was succeeded by his wife Mani Devi in as much as Atma Ram had no issue of his own from Mani Devi. Therefore, on 25.3.1966 on the death of Atma Ram, Mani Devi had succeeded to the tenancy of Atma Ram on the land in question. Mani Devi was tenant on the land in question on coming into force of the H.P. Tenancy Act and she automatically became owner of the land in question on coming into force of the rules on 3.10.1975 which were framed under the H.P. Tenancy Act, but unfortunately these changes could not be reflected in the revenue record as no body brought to the notice of the revenue authorities of the death of Atma Ram. 10. It has also come on record that Mani Devi had two sets of land, one owned by her and another which came to her through her husband Atma Ram as tenant. Mani Devi had executed a Will Ex.PW-15/B on 19.1.1979 of the land owned by her in favour of PW-2 Amra Devi. On the death of Mani Devi, PW-2 Amra Devi brought the factum of death of Mani Devi to the notice of 8 revenue authorities and a mutation No.879 was attested in favour of PW-2 Amra Devi 11. PW-2 Amra Devi on 17.11.1988 vide rapat No.124 Ex.PW-3/A reported the factum of death of Atma Ram to patwari. In Ex.PW-3/A, PW-2 Amra Devi had not reported that Atma Ram was survived by his wife Mani Devi who had also died. She has also not reported that Mani Devi had executed a Will dated 17.1.1979 in her favour. The patwari entered the mutation No.1088 Ex.PW-4/E under section 45 of the H.P. Tenancy Act. PW-12 Budh Ram, office kanungo has stated that all entries in mutation Ex.PW-4/E except sanction order were in the hand of patwari Narinder Singh. The entry in original description column of Ex.PW-4/E was made by Narinder Singh patwari in black ink. In column No.13 of the original of Ex.PW-4/E, entries were made in black ink. The entry in column No.10 was deleted and thereafter blue ink entry was made by Amar Nath. PW-12 has no where stated that various cuttings were made in mutation No.1088 Ex.PW-4/E by patwari. He has named Amar Nath for various cuttings and additions made in Ex.PW-4/E. He has not stated, who actually cut Section 45 and converted into Section 104 in column No.15 of Ex.PW-4/E. Amar Nath in his written statement under Section 313 Cr.P.C. has stated that on the direction of Sher Singh Assistant Collector 2nd grade, he made the correction in columns No.10,12,13 and 15 of the mutation, in other words Amar Nath has admitted that all alleged cuttings and additions on mutation No.1088 Ex.PW-4/E were made by him but on the direction of Sher Singh, Assistant Collector 2nd grade. 9 12. The question is whether the appellants have committed offence punishable under Sections 420, 120-B IPC and Section 13(2) of the Act. There is no evidence of giving any gratification by Dhale Ram or any body else for making cuttings and additions in mutation No.1088 Ex.PW-4/E. The entry of mutation and attestation of mutation are two different things. The entry of mutation does not amount to attestation of mutation. It has not been shown by the prosecution that patwari while entering the mutation is expected to refer to provisions of law under which mutation is to be attested. In any case, even if, patwari had referred to some provision of law under which mutation is to be attested, the authorities concerned are not bound by the provisions of law referred by the patwari while entering the mutation. The concerned authority is to independently apply mind under which provision of law the mutation is to be attested. In the present case, the appellant Amar Nath has taken the stand that he made various cuttings and changes in column Nos. 10,12,13 and 15 of mutation No.1088 but such cuttings and changes were made on the direction of appellant Sher Singh the then Assistant Collector 2nd grade immediate superior of Amar Nath. This stand of Amar Nath has not been denied by the appellant Sher Singh. The question is about the bonafidies and jurisdiction of Assistant Collector to attest the mutation. The prosecution case is that appellant Sher Singh had attested the mutation No.1088 on 24.3.1989 under Section 104 instead of under Section 45 of the H.P. Tenancy Act. Sher Singh could have attested the mutation in absence of cuttings and changes under Section 104 irrespective of the fact that patwari had 10 indicated Section 45 of the H.P. Tenancy Act while entering mutation Ex.PW-4/E. The bonafide wrong act of Sher Singh of attestation of mutation under Section 104 instead of Section 45 of the H.P. Tenancy Act has been stretched too much by the prosecution. The alleged motive for conspiracy of accused was to help Dhale Ram, who was father in law of Roop Singh brother of accused Kahan Singh, nambardar. The alleged motive is too remote and weak to connect accused for the commission of offence. There is no allegation that Kahan Singh nambardar had identified wrong person. It is common knowledge that at village level the revenue authorities rely nambardar for identification purposes. Kahan Singh nambardar had identified Amra Devi on 20.1.1995 at the time of attestation of mutation No.1611 Ex.PW-4/J in favour of Mani Devi and at the time of attestation of mutation No.1612 Ex.PW-4/H. The prosecution has not led any evidence why Sher Singh, Amar Nath and Narinder Singh wanted to help Dhale Ram out of the way. The aforesaid three accused were not under any obligation to help Kahan Singh directly or indirectly. 13. The ingredients of Section 420, 120-B IPC and Section 13(2) of the Act are not satisfied in the present case. Simply on the basis of cuttings made in the mutation No.1088 which was just entered and not attested no body had cheated or induced other person to deliver any property or committed offence punishable under Section 13(2) of the Act. The accused are not facing charge of forgery and making use of the forged document. In BEHARI LALl vs. BAL HAR SINGH and others 1983 Criminal Law Times 204, it has been held that according to the definition 11 as given in section 30 IPC, valuable security denotes such a document whereby any legal right is created or whereby any person acknowledges that he lies under a legal liability or has not a certain legal right. A mutation cannot be said to be such a kind of document which creates any title. It has come on record that mutation Ex.PW-4/E now does not survive, the mutation of land in question had already been attested vide Ex.PW-4/J in favour of Mani Devi and after her in favour of Amra Devi vide Ex.PW-4/H. Thus practically Amra Devi had suffered no loss. A little mist which was created by mutation Ex.PW-4/E was cleared by mutations Ex.PW-4/J and Ex.PW-4/H. Sher Singh appellant has taken responsibility on himself when he has taken the stand that on his direction Amar Nath, Field kanungo made cuttings in mutation Ex.PW-4/E. It has been already noticed that the action of Sher Singh for attestation of mutation Ex.PW-4/E was wrong but he had no criminal intent. It appears Sher Singh in good faith bonafide attested mutation Ex.PW-4/E under Section 104 of the H.P. Tenancy Act in favour of Dhale Ram and such action is protected under Section 82 of the H.P. Tenancy Act. 14. The learned Special Judge has not properly appreciated the facts and legal position in convicting and sentencing the appellants/accused and therefore, appellants in both the appeals are entitled to acquittal after setting aside the impugned judgment. 15. No other point was urged. 16. The result of the above discussion, both appeals being Cr. Appeal No.136 of 2002 and Cr. Appeal No.149 of 2002 12 are allowed, judgment dated 13.3.2002 passed by learned Special Judge, Kullu in Corruption case No.01/2001 under Sections 420, 120-B IPC read with Section 13(2) of Prevention of Corruption Act, 1988 is set aside, the appellants in both the appeals are acquitted of the charge, fine amount, if any deposited by them, be refunded to them. Their bail bonds are discharged. ( Kuldip Singh) Judge April 23, 2009 (sks). 13 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. Cr. Appeal No.149 of 2002 Judgment Reserved on : 7.4.2009 Date of Decision: 23.4.2009 Narinder Singh ………appellant Vs. State of H.P. … Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? For the appellant: Mr. S.S. Mittal, Sr. Advocate with Mr. Dev Raj Dev, Advocate for the appellant. For the respondent: Mr. Ansul Bansal, Addl. Advocate General. Kuldip Singh, Judge For judgment, see judgment of date rendered in Cr. Appeal No. 136 of 2002, titled Sher Singh and others vs. State of H.P. ( Kuldip Singh) Judge April 23,2009 (sks) 14