Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 360 of 2001 Old. Criminal Appeal No. 2543 of 1999 Dated of Decision: 08 .07.2010 Harendra Singh …Appellant Versus State of U. P. (Now Uttarakhand) …Respondent Present: Mr. Lokendra Dobhal, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Mr. G.C. Lakhchaura, learned counsel for the complainant. Hon’ble Nirmal Yadav, J. Accused Harendra Singh and Prem Singh stood trial for the offence punishable under Section 364 of the Indian Penal Code, 1860 (for short I.P.C.) for kidnapping Munna and his wife for the purpose of committing their murder, while Harendra Singh along with Tula Ram stood trial for the offence punishable under Sections 467, 468 and 471 of the I.P.C. for forging the Power of Attorney of Munna for using the same for the purpose of cheating. However, the trial court after taking into consideration the material facts and evidence available on record acquitted accused Harendra Singh and Prem Singh for the offence under Section 364 of the I.P.C. Accused Tula Ram has been acquitted of the charges under Sections 467, 468 and 471 of the I.P.C. while accused Harendra Singh has been convicted for the abovementioned offence and sentenced to one year rigorous imprisonment and a fine of Rs. 1,000/- under each of the aforesaid sections separtely. In default of payment of fine, he has further been ordered to undergo one-month simple imprisonment. All the three sentenced have been ordered to run concurrently. 2 The criminal law was set in motion on the written complaint (Ex. Ka-3) submitted by Kaluwa (PW-3) cousin brother of Munna alleged to be missing or murdered. It is alleged by the complainant that his brother Munna and his wife are missing for quite some time. Accused Harendra Singh in connivance with one Gokul Singh and Mukesh Kumar got prepared forged Power of Attorney dated 24.02.1988 of Munna in his favour with regard to Munna’s property. The said Power of Attorney was registered at Rampur whereas the property is situated in the area of Kashipur. On the basis of said forged Power of Attorney, Harendra Singh sold the said property to Prem Singh and Tula Ram is the attesting witness of the registered sale deed. Thereafter the abovementioned persons have made his brother and sister in law disappear or they have been killed. It is further alleged that the accused persons are threatening the complainant with dire consequences. On the basis of the complaint, Chick F.I.R. (Ex. Ka-6) was recorded on 25th July 1990 at 2:00 p.m. The investigation was handed over to J.K. Gangwar (PW-5), who recorded the statement of the witnesses and took into possession passbook of Munna relating to Kisan Seva Sahkari Samiti, Jaspur. He sent the passbook as well as the disputed Power of Attorney for the comparison of the thumb impression of Munna to the Forensic Laboratory Lucknow. The disputed thumb impression was examined by the Finger Print Expert Bureau, U.P., Lucknow, who submitted report Ex. Ka-2. On completion of the investigation, challan was presented and accused Harendra Singh along with Prem Singh was charge sheeted under Section 364 of the I.P.C. while accused Harendra Singh and Tula Ram was charge sheeted under Sections 467, 468 and 471 of the I.P.C. to which they pleaded not guilty and claimed trail. 3 The prosecution in order to prove its case examined PW-1 Mehandi Hassan, the special attorney of complainant Kaluwa (PW-3). PW-2 Daya Ram Verma is the finger print expert. PW-4 Anwar Hussain is the resident of Mohalla Jethwara Nai Basti, Jaspur. According to him, no person by the name of Mukesh Kumar son of Ranjeet Singh was residing in their locality similarly PW-6 Harvinder Pal resident of village Raipuri stated that no person by the name of Mukesh Kumar son of Ranjeet Singh resides in their locality. PW-7 Allauddin stated that no person by the name of Mukesh Kumar was residing in Nai Basti Jaspur. PW-5 J.K. Gangwar is the Investigating Officer. On conclusion of prosecution’s evidence, statements of the accused persons were recorded under Section 313 Cr.P.C. They denied all the allegations of prosecution and claimed innocence and false implication. In defence the accused persons did not produce any evidence. I have heard Mr. Lokendra Dobhal, learned counsel for the appellant, Mr. Nandan Arya, learned A.G.A for the State, Mr. G.C. Lakhchaura, learned counsel for the complainant and perused the material available on record. Learned counsel for the appellant submitted that the prosecution has miserably failed to prove that the thumb impression of Munna on his Power of Attorney is forged. It is argued that the comparison of the thumb impression of Munna has been made with his passbook of Cooperative Society (Ex. Ka-1) which is not an authentic document as it was taken into possession from Mehandi Hassan (PW-1) the Attorney of Kaluwa (PW-3). Some other documents such as ledger or the form in which the thumb impression was affixed by Munna while taking the membership of Cooperative Society would have 4 been the best document for comparison. Though the Investigating Officer categorically stated that he had verified the ledger of Seva Sahkari Samiti Jaspur, having the thumb impression of Munna, yet he did not take the same in possession nor sent the said ledger to the Finger Print Expert for comparison with the disputed thumb impression. It is thus argued that the alleged report of the Finger Print Expert cannot be taken into consideration. Learned counsel for the appellant further argued that Mehandi Hassan (PW-1) admitted that there was civil as well as criminal litigation between Kaluwa (PW-3) and Lalli (sister of Munna) with regard to the land which belong to Munna was pending. Learned counsel for the appellant referred to the statement of Kaluwa (PW-3) who stated in the examination in chief, that Munna was his real brother, however, when he was cross examined, he admitted that he is the son of Rahim Bux whereas Munna was the son of Karim Bux and Lalli was the real sister of Munna. Learned counsel for the appellant further argued that Kaluwa (PW-3) wanted to grab the land of Munna, and did not want that Munna’s land should be inherited by Lalli. Learned counsel for the appellant referred to the cross examination of Kaluwa (PW-3) where he stated that Lalli had sold the land of Munna to accused Prem Singh. He also admitted that he tried his best that the land belonging to Munna should not be inherited by Lalli but it should be inherited by him. He also admitted that many cases were pending between him and Lalli with regard to land belonging to Munna. The witness admitted that he did not have any document or letter bearing the thumb impression of Munna. Learned counsel for the appellant thus argued that Kaluwa (PW-3) wanted to grab the land of Munna, therefore, he initiated several litigation in this regard but Lalli sister of Munna succeeded in those litigations. 5 On the other hand learned A.G.A. submitted that accused Harendra Singh got the forged Power of Attorney of Munna prepared which is proved from the report of the Finger Print Expert. Daya Ram Verma (PW-2), the Finger Print Expert categorically stated in his report (Ex. Ka-2) that disputed thumb impression on the Power of Attorney is totally different than the thumb impression on the passbook of Munna. Learned A.G.A. pointed out that though the property was situated at Kashipur in district U.S. Nagar whereas the Power of Attorney was got prepared at Rampur. There is reasonable ground on record to show that as to why the Power of Attorney was registered at Rampur. The third circumstance pointed out by the learned A.G.A. that after the Power of Attorney was prepared, Munna and his wife disappeared and since then their whereabouts are not known. He pointed out that on the basis of the said Power of Attorney, a sale deed has been registered by Harendra Singh in favour of Prem Singh. The another circumstance creates doubt with regard to execution of Power of Attorney is that why Munna would execute his Power of Attorney in favour of Harendra Singh who is not related to him and was resident of Bijnor whereas Munna was the resident of Jaspur. Lastly learned A.G.A. argued that there are two attesting witnesses of the Power of Attorney, namely, Mukesh Kumar and Gokul Singh. Gokul Singh could not be produced as he expired while there is no person by the name of Mukesh Kumar. In this regard the prosecution has produced Anwar Hussain (PW-4), Harvinder Pal (PW-6) and Allaudin (PW-7) who categorically stated that there is no such person by the name of Mukesh Kumar living in Nai Basti Jaspur as mentioned in the Power of Attorney and the photo copy of the same is on the record. 6 On careful consideration of the rival submissions made by learned counsel for the parties and evidence and documents available on record, this Court is of the view that there are several circumstances showing that the alleged Power of Attorney is not a genuine document. First of all, Munna the author of the Power of Attorney belongs to village Jaspur and there is nothing on record to prove that Harendra Singh a resident of Bijnor had any relationship with him nor was so close to him that he would execute the Power of Attorney in his favour. Secondly, after the execution of the Power of Attorney whereabouts of Munna as well as his wife are not known. It does not appear to be a case that Munna had received any monetary benefit with regard to the property in question, of which he has divested himself of all the rights. Thirdly, one of the attesting witness Mukesh Kumar is not found to be residing at the address given in the Power of Attorney. Anwar Hussain (PW-4), Harvinder Pal (PW-6) and Allaudin (PW-7) have categorically stated that no person by the name of Mukesh Kumar son of Ranjeet Singh was residing in Mohalla Nai Basti Jaspur. The Investigating Officer, while replying to a question put to him, categorically stated that he had made an inquiry in the entire Mohalla with regard to Mukesh Kumar but no person by the name of Mukesh Kumar was found existing at the address given in the Power of Attorney. According to him, he had recorded the names of the person from whom he had made inquiries. As per the report of Daya Ram Verma (PW-2), the Finger Print Expert, the thumb impression on the Power of Attorney is totally different than the thumb impression of Munna on the passbook of Cooperative Society. The learned counsel for the appellant argued that the passbook is not an authentic document as it was taken into possession from Mehandi Hassan (PW-1), the attorney of Kaluwa (PW-3). This argument does not survive in view of the 7 statement of J.S. Gangwar (PW-5), the Investigating Officer. He categorically stated that he had verified from Seva Sahkari Samiti, Jaspur about the passbook and had also verified that Munna was the member of the society as per the ledger maintained by the society. A bare perusal of the photo copy of the Power of Attorney shows that there are three visible thumb impressions of Munna on the alleged Power of Attorney, however, all the three thumb impressions appear different from each other. The fourth thumb impression should be on the front portion of the first page but that is not at all visible. All these three thumb impressions also appear to be quite different from the thumb impression on the passbook even by naked eyes. Taking into consideration the suspicious circumstances as referred to above, I do not find any ground to interfere with the conclusions arrived at by the learned trial court. Accordingly I find no merit in the appeal and the same is dismissed. Judgment and order dated 23.09.1999 passed by the learned Special Judge (C.B.I.)/ Additional Sessions Judge, Nainital in Sessions Trial No. 318 of 1994 is affirmed. Conviction and sentence awarded against the appellant is maintained. The appellant is on bail, his bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence awarded by the trial court. The registry is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) VKG 08.07.2010