Crl. Rev. No.296 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No.296 of 2005 (O&M) Date of decision:- 31.1.2011 Dhanpat Singh & Anr. ... Petitioners Versus State of Haryana ... Respondent Crl. Rev. No.1133 of 2005 (O&M) Sat Pal Singh ... Petitioner Versus State of Haryana ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Pritam Saini, Advocate, for the petitioner. (in Crl. Rev. No. 296 of 2005) None for the petitioner. (in Crl. Rev. No. 1133 of 2005) Mr. Shekhar Mudgal, AAG, Haryana. Gurdev Singh, J (oral) The above named petitioners/accused – Sat Pal Singh S/o Atma Ram, Dhanpat Singh and Suraj Bhan, along with Sat Pal Sharma S/o of Rameshwar Dutt and Jagdish Lal were charged for the offences under Section 120-B and 420, 467, 468 and 471 read with Section 120-B IPC and were tried for those offences by the Chief Judicial Magistrate, Panipat. Jagdish Lal was acquitted whereas the other accused were convicted for the Crl. Rev. No.296 of 2005 (O&M) -2- offences under Section 420, 467, 468, 471 read with Section 120-B IPC and were sentenced as under:- Name of the accused Under Sections Period of imprisonment Sat Pal Singh, S/o Atma Ram 420, 467, 468, 471/120-B IPC To undergo rigorous imprisonment for 7 years, 7 years, 7 years, 7 years, 3 years and to pay a fine of `2,000/- each for each of those offence. Sat Pal Sharma S/o Rameshwar Dass 420, 467, 468/ 120B IPC To undergo rigorous imprisonment for 7 years, 7 years, 7 years, 3 years and to pay a fine of `2,000/- each in respect of those offences. Dhanpat Singh 420, 467, 468/ 120B IPC To undergo rigorous imprisonment for 7 years, 7 years, 7 years, 3 years and to pay a fine of `2,000/- each in respect of those offences. Suraj Bhan 420, 467, 468/ 120B IPC To undergo rigorous imprisonment for 7 years, 7 years, 7 years, 3 years and to pay a fine of `2,000/- each in respect of those offences. These accused preferred an appeal against that conviction and sentence. In that appeal their conviction was maintained. However, their sentence under Section 420, 467 and 468 was reduced from 7 years to 3 years. These revision petitions have been preferred by the above named petitioners/accused against their conviction and sentence. A written complaint/application under Section 156(3) Cr.P.C Ex.P/A was moved by Dwarka Dass-complainant against Satpal and Jagdish- accused under Sections 420, 467, 468, 471 and 120-B IPC before Crl. Rev. No.296 of 2005 (O&M) -3- Chief Judicial Magistrate, Panipat. He narrated therein that Satpal accused is his real brother whereas Jagdish-accused is married to the daughter of their sister. He had ½ share in the land measuring 69 Kanals and 17 Marlas in village Urlana Kalan, District Panipat. Both the accused conspired to usurp his share in that land and under that conspiracy they installed one factory under the name Laxmi Textiles for obtaining loan for that factory from Haryana Financial Corporation (hereinafter referred to as 'HFC') and fabricated the documents in favour of that corporation by forging his signatures/thumb marks for mortgaging the land in dispute. They executed a registered document in favour of HFC by forging his thumb impression. That complaint was sent by the Chief Judicial Magistrate to officer in- charge, Police Station City Panipat and on the basis thereof FIR Ex.PW4/A was recorded. In the course of investigation specimen thumb impressions of Jagdish Lal, Sat Pal and Dwarka Dass-complainant were obtained before Chief Judicial Magistrate and, alongwith disputed mortgage deed (deed of additional security) Ex.PC, were sent to the Finger Prints Bureau, Madhuban for comparison. It was reported by the Additional Director of that Bureau, vide his reports PW4/E and PW4/F, that the disputed thumb impressions on the mortgage deed were not of the complainant, but were of Sat Pal – accused. It was found that the mortgage deed was scribed by Madan Lal deed writer and was attested by Dhanpat Singh, Suraj Bhan and Sat pal Sharma. These attesting witnesses had appeared before the Sub Registrar, also at the time of registration of that mortgage deed and had identified Dwarka Dass-complainant, whose thumb impressions were found to be forged and that of Sat Pal Singh-accused. In the course of Crl. Rev. No.296 of 2005 (O&M) -4- investigation relevant documents were taken into possession and after completion thereof, the challan was put in before the Chief Judicial Magistrate against the accused. As already said above Jagdish Lal accused was acquitted whereas the other accused were convicted and sentenced. In the appeal preferred by the convicts, Sat Pal Sharma was acquitted. No one appeared for Sat Pal- petitioner/accused. I have heard learned counsel, who appeared for the other petitioners and the counsel for the respondent. It has been submitted by learned counsel for Dhanpat Singh and other petitioner that no allegation was levelled against these petitioners in the complaint Ex.P/A and it was never the case of the complainant that they conspired with the other accused for forging the mortgage deed. It was only during the investigation that they were arrayed as accused. It has come on the record that both of them had put their attestation merely on the asking of the deed writer and that was a bona fide mistake on their part. There was no mens rea on the part of these accused to commit any such offence. He also submitted that these petitioners were of advance age at the time of commission of the said offences. In these circumstances lenient view is required to be taken and their sentence be reduced to already undergone. On the other hand, it has been submitted by learned State counsel that there is no question of taking any such lenient view in respect of these accused. They not only attested the documents forged by the other accused, but also identified some other person, who impersonated himself as Dwarka Dass-complainant. There is no question of any bona fide mistake on their part. Though there is no specific allegation against them in the complaint Crl. Rev. No.296 of 2005 (O&M) -5- Ex.P/A, yet it is very much clear from the contents thereof that the complainant was apprehending conspiracy for the commission of the offence of the forging of the mortgage deed. There is no question of reducing the sentence of these accused to the period already undergone by them. The Charge framed against the accused by the Chief Judicial Magistrate is not happily worded. Offence under Section 120-B IPC is substantive offence and there was no question of charging the accused for the other offences with the help of that Section. The question arises whether from the facts of the case the offence falls under Section 120-B IPC for under Section 109 IPC. The definition of criminal conspiracy is contained in Section 120- A of the Indian Penal Code. The same is reproduced below:- “120-A. Definition of criminal conspiracy- When two or more persons agree to do, or cause to be done,- (1)an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation:- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Crl. Rev. No.296 of 2005 (O&M) -6- The definition of "abetment of a thing" is contained in Section 107 of this Code and the same is reproduced below:- “107. Abetment of a thing - A person abets the doing of a thing, who - First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal ommission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal ommission, the doing of that thing." The conjoint reading of these two sections makes it very much clear that if the illegal act agreed to done by two or more persons or an act which is not illegal, but agreed to be done by two or more persons by illegal means is committed then it becomes offence of abetment. It is very much clear from the facts proved on the record that the illegal act so agreed to be done by the accused i.e. the forging of the mortgage deed, took place in pursuance of the criminal conspiracy. This will amount to the abetment of the offences of the commission of forgery. Therefore, instead of charging Dhanpat, Suraj Bhan and Sat Pal Sharma for the offence under Section 120 B IPC, they should have been charged for the offence under section 109 IPC. Merely on the ground that Dhanpat and Suraj Bhan were not named by the complainant in the complaint it cannot be concluded that the complainant never wanted to name them as accused or that they did not Crl. Rev. No.296 of 2005 (O&M) -7- commit any such offence. It is not the requirement of law that names of all the accused must be mentioned in the complaint/FIR. It was during the investigation that it was found that Dhanpat Singh, Suraj Bhan and Sat Pal Sharma, also committed the offence for having scribed and attested the forged documents. The attesting witnesses were not supposed to put their attestation merely on the asking of the deed writer. The attestation of a document means that the same was actually executed by the person by whom the same purports to have been executed and the attesting witnesses must have seen that person putting his signatures or identification mark or must have been received some acknowledgment to that effect and that he had put his attestation in the presence of that executant. Once the prosecution was able to prove that Dwarka Dass – complainant never put his thumb impression on the mortgage deed and the same was found to be that of Sat Pal accused, the inference was to be drawn under Section 114 of the Evidence Act, that Dhanpat Singh and Suraj Bhan, who attested that mortgage deed, committed the offence of abetment. They conspired with Sat Pal – accused for forging the documents and in pursuance of that conspiracy that illegal act was committed. When such is the position, I do not find any ground to take a lenient view in respect of these petitioners. There is no merit in these revision petitions and the same are dismissed accordingly. January 31, 2011 (Gurdev Singh) tripti Judge