Crl. Rev. No. 1241 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Date of decision:- 9.3.2011 1. Crl. Rev. No. 1241 of 2009 (O&M) Jarnail Singh ... Petitioner Versus State of Punjab ... Respondent 2. Crl. Rev. No. 2053 of 2009 (O&M) Jagdish Chander ... Petitioner Versus State of Punjab & Anr. ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:-Mr. Navkiran Singh, Advocate, with Mr. Gursimran Singh, Advocate, for the petitioner. Mr. P.S.Paul, DAG, Punjab. Gurdev Singh, J (oral) The petitioner/accused- Jarnail Singh was posted as Patwari in Halqa Nabha for a period, including the year 1991-92. He was succeeded by Harbans Singh Patwari, who made a written application to the then Chief Minister, Punjab, regarding the fabrication of the records by the accused. That application was marked by DC to S.R.Garg, Additional Deputy Commissioner (Development) (hereinafter referred to as 'ADC'). When the records were inspected by that ADC the following facts came to the notice:- 1) the ownership column of the Jamabandi was blank. Crl. Rev. No. 1241 of 2009 (O&M) -2- 2) The accused on the basis of the reports in the Rojnamcha changed the entries in the column of ownership of the Jamabandi. 3) Harbans Singh Patwari was arrested by the Vigilance Department. He conducted a thorough enquiry and came to the conclusion that the column of ownership in the Jamabandi regarding 35 acres of land situated in Nabha was blank and no revenue officer at any time made an attempt to make a requisite entry and that the accused on the basis of the reports made in the Rojnamcha changed the ownership of the land in favour of Darshan Singh. After the copy of that report Ex.PW10/A was submitted to the DC. He made an application Ex.PW10/C to the S.S.P for the registration of the case against the present accused Darshan Singh, Kiranjit Singh and Jagmohan under Sections 420, 457, 465, 468 and 120-B IPC. He narrated in that letter that the accused in criminal conspiracy with his co- accused and while posted as Patwari and without the orders of the competent officer changed the entries regarding ownership in favour of Kiranjit Singh and others on the basis of the reports bearing No.234, 235, 236, 682 ,726 and 799 made in the Rojnamcha and that the accused kept the khasra girdawari for the year 1990-91 pertaining to Khasra No.660 blank and without the order of the competent authority entered the name of Jagmohan Singh as owner which was totally illegal. On the basis of that application, FIR Ex.PW1/D was recorded against the accused and another. The matter was investigated by Rajinder Singh Inspector, who recorded the Crl. Rev. No. 1241 of 2009 (O&M) -3- statements of the witnesses and took into possession revenue record and other record. The specimen handwriting of the accused was taken before the Magistrate for getting the same compared with the disputed entries. It is not the prosecution version if the specimen handwriting and disputed entries were ever sent to any document expert or Laboratory for comparison. After the completion of the investigation the challan was presented before the Sub Divisional Judicial Magistrate, Nabha against accused Jarnail Singh, Darshan Singh and Jagmohan Singh, as well as against Kiranjit Singh, who had been declared as proclaimed offender. After going through the documents sent along with the police report and hearing Assistant P.P for the State and learned defence counsel for the accused, the Sub Divisional Judicial Magistrate found that no prima facie case was made against Darshan Singh and Jagmohan Singh and accordingly discharged them, vide order dated 26.2.1999. Sufficient grounds were found for framing the charge against the accused under Section 467 IPC on the ground that he changed the entries in the column of khasra girdawari regarding khasra No.660 without the order of the authorised person. That order was challenged by the State by filing the revision before the Sessions Judge, which was decided by the Additional Sessions Judge, Patiala, vide order dated 20.9.2001. Two revision petitions were preferred by the State. One against Jarnail Singh and Darshan Singh and the other against Kiranjit Singh, in which that order of the Sub Divisional Judicial Magistrate was challenged. Those revision petitions were entrusted to Additional Sessions Judge, Patiala and were decided, vide order dated 20.9.2001. The Crl. Rev. No. 1241 of 2009 (O&M) -4- Additional Sessions Judge came to the conclusion that there was ample evidence to frame charge against Jagmohan Singh, Darshan Singh and Kiranjit Singh to commit forgery and cheating after entering into a criminal conspiracy. The revision petitiones were accepted accordingly and the Sub Divisional Judicial Magistrate, Nabha was directed to take into account the entire incriminating evidence against those accused on the file in the light of the observations made in the order and to proceed with the case on the basis of available evidence in accordance with provisions of law after framing the charge. That order was challenged before this Court vide criminal Rev. No. 1547 of 2001, which was decided on 2.4.2002. The order passed by Additional Sessions Judge, Patiala was set aside and the order passed by Sub Division Judicial Magistrate was restored. It was specifically ordered that the prosecution shall proceed against Jarnail Singh only on the basis of the order of Sub Divisional Magistrate passed on 26.2.1999. Thereafter only the accused (Jarnail Singh) was tried. The charge was framed against him for the offence punishable under Section 467 IPC. To prove the guilt of the accused prosecution examined SI Malkiat Singh PW1, SI Karnail Singh PW2, SI Kartar Singh PW3, the then Tehsildar Moti Lal Sharma PW4, Beant Singh Patwari PW5, Harbans Singh PW6, Inspector Rajinder Singh PW7, Usha Devi Nazir PW8, Sh.P.S.Sodhi, Collector Land Acquisition the then Tehsildar, Nabha PW9, Gurmukh Singh PW10, Jagdish Chander PW11, Sh.T.C.Gupta the then Deputy Commissioner, Patiala PW12 and Sh. S.R.Garg the then ADC, Patiala Crl. Rev. No. 1241 of 2009 (O&M) -5- PW13. After the prosecution concluded its evidence the accused was examined by the trial Court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He stated that the then Tehsildar P.S.Sodhi, who was being described as corrupt officer in the newspapers, wanted to forcibly occupy the land in question in connivance with Jagdish Chander-complainant and his mother Raj Rani, who had already relinquished their rights by means of writing in favour of Darshan Singh and others and also the possession in favour of those Darshan Singh and others. Regarding the relinquishment of rights and possession he had recorded a report in rojnamcha, which was signed by all those parties. The said Tehsildar and Jagdish Chander gave false applications against him and got false FIR registered against him. Even Harbans Singh Patwari was caught red handed while accepting illegal gratification. Both these officials in connivance with DC and ADC got false case registered against him. He was called upon to enter on his denfence and he examined DW1 Manohar Lal, Office Kanungo, Nabha, in his defence. After going through the evidence and hearing learned Assistant P.P for the State and learned defence counsel for the accused, the Sub Divisional Judicial Magistrate, Nabha, convicted the accused for the offence under Section 467 IPC and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of `5000/- and in default Crl. Rev. No. 1241 of 2009 (O&M) -6- thereof to further undergo rigorous imprisonment for three months, vide judgment dated 23.8.2006. The accused preferred an appeal against that conviction and sentence, but the same was dismissed by Additional Sessions Judge, Patiala, vide, judgment dated 8.5.2009. Now these revision petitions have been filed by the petitioners. The first revision petition has been filed by Jarnail Singh Petitioner/accused against that conviction and sentence. The second revision has been filed by Jagdish Chander petitioner for enhancement of the sentence, awarded to the accused, to seven years rigorous imprisonment. I have heard learned counsel for both the sides. According to learned counsel for the petitioner/accused no evidence was produced by the prosecution for proving the charge framed against him. All the evidence produced by the prosecution relates to the reports made by the accused in the rojnamcha and the change of entry in the column of cultivation. On the basis of that evidence, it cannot be concluded that accused changed the entry regarding the ownership of the land in dispute i.e. Khasra No.660 and as such he is entitled to acquittal. On the other hand, learned State counsel contended that at the relevant time the accused was posted as Halka Patwari, who was custodian of all the revenue record, including the khasra girdawari, and, as such, only he could have changed the entries in that record. Evidence was produced to that effect that the entry in khasra girdawari regarding Khasra no.660 was changed and there is nothing on the record to disbelieve that evidence. There is no ground for setting aside his conviction and sentence. Crl. Rev. No. 1241 of 2009 (O&M) -7- For proper appreciation of the matter the charge framed against the accused is reproduced below:- “ That in the year 1991-92 in the area of Nabha, you made changes in the entries in the column of ownership in Khasra Girdawari pertaining to khasra No. 660 without the orders of any authorised person with intent to cause damage and injury to the people of shamlat pati and with intent to commit fraud upon them and thereby forged the said Khasra Girdawari for the year 1991-92 and that you thereby committed an offence punishable under Section 467 IPC which is within my cognizance.” Two witnesses were examined by the prosecution, who were the material witnesses, for proving his guilt; namely, Beant Singh Patwari PW5, who produced the original record in the Court and made his statement about the entries made therein and P.S.Sodhi, Collector PW9, who was posted as Tehsildar at the relevant time. Most part of their statements are confined to the making of the reports in the rojnamcha vakayat by the accused in his capacity as Patwari. Copies of those reports were proved on the record as PW5/A to PW5/G. It is pertinent to note that no such charge for making false entries in the rojnamcha was framed against this accused and rather, vide above said order dated 26.2.1999, he was discharged of other offences. None of these two witnesses have stated that the accused made the false entries in the khasra girdawari in the column of ownership. Merely on the ground that he was the custodian of the record, it cannot be concluded that Crl. Rev. No. 1241 of 2009 (O&M) -8- any change in the entries of that record was made by him. The onus was upon the prosecution to prove that by changing the entry in the revenue record without any authority he prepared the false documents. Even if reliance is to be placed upon the evidence so produced by the prosecution, at the most it can be said as the entry was changed in the column of cultivation of the Khasra Girdawari. Being the Patwari, the accused had the authority to note any change in the cultivation and was competent to enter a report to that effect in his rojnamcha and after the verification that change was to be carry forward in the khasra girdawari. The question was to be decided whether he made any change in the column of ownership. No evidence was produced by the prosecution for proving that fact. Certified copy of the khasra girdawari pertaining to khasra No.660 for the period from 1986 to 89 was proved on the record as PW7/E. In that khasra girdawari in the column of ownership Shamlat Pati Nabhi is recorded to be the owner. Certified copy of the khasra girdawari for the year 1991-92 was proved on the record as PW7/F. Even in the column of ownership of that khasra girdawari the name of Shamlat Pati Nabhi was recorded as owner. Then how it can be said that the change was made in the column of ownership by the accused or by someone else. There is no evidence on the record for proving the charge against the accused. It is a case where the trial Court and appellate Court have recorded the findings against the accused wrongly and there is no evidence on the record to support those findings. The first revision petition is accepted accordingly. The conviction Crl. Rev. No. 1241 of 2009 (O&M) -9- and sentence of the accused is set aside. He is acquitted of offence punishable under Section 467 IPC. The fine, if already deposited, be refunded. As a result of acceptance of first revision petition, the second revision petition has become infructuous and is dismissed as such. March 9, 2011 (Gurdev Singh) tripti Judge