IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.230 of 2003 alongwith Criminal Revision Nos.215, 227 of 2003 and 2 of 2004. Date of decision: 21.07.2010. For title: Please see over-leaf. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner(s): Please see over-leaf For the Respondent(s): Please see over-leaf. Dev Darshan Sud,J. All these four revision petitions are being disposed of by this common order as they arise out of the same judgment of the appellate Court affirming the judgment and sentence imposed upon each of the petitioners herein under Sections 420 and 120-B of the Indian Penal Code, sentencing them to simple imprisonment for six months on each count. 2. It is with reluctance that I propose to send the case for retrial. I have spent a considerable time going through the record, being assisted both by learned counsel appearing for the petitioner and learned Advocate General and Additional Advocate General. I am also aware of the fact that the genesis 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 1. Cr.Revision No.230 of 2003. Parmanand … …Petitioner Versus State of H.P. … …Respondent For the Petitioner: Mr.G.R. Palsara, Advocate. For the Respondent: Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. 2. Cr.Revision No.215 of 2003. Harbans Lal … …Petitioner Versus State of H.P. … …Respondent For the Petitioner: Mr.Rajnish Maniktala, Advocate. For the Respondent: Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. 3. Cr.Revision No.227 of 2003. Rattan Singh … …Petitioner Versus State of H.P. … …Respondent For the Petitioner: Mr.N.D. Sharma, Advocate. For the Respondent: Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. 4. Cr.Revision No.2 of 2004. Ridhi Singh … …Petitioner Versus State of H.P. … …Respondent For the Petitioner: Mr.N.S. Chandel, Advocate. For the Respondent: Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. (2) of the case lies in the year 1982 and a retrial would prolong the agony of the parties, but at the same time I cannot persuade myself to accept the manner in which the Courts below have dealt with the evidence ignoring some of the important contradictions which have been pointed on the record of the case. 3. The genesis of the entire dispute is Ex.PW- 6/A. The case of the prosecution is that somewhere in 1987, a news item was published that an award has been made for 45 trees standing on two Biswas of land which was a physically impossibility. The prosecution case is based on the statement of three witnesses, namely, PW-5 Swayam Ram, who was Land Acquisition Officer-cum- SDM and filed the complaint Ex.PW-5/A, PW-6 Kedar Nath, who was the Tehsildar in Land Acquisition Office from 1978 to 1983 and PW-7 Dandu Ram, who was a Patwari. 4. The learned trial Court on the evidence on record concluded that the record was tampered with. Ex.PW-6/H, according to the prosecution, was tampered with wherein the number of trees was altered. It was not clear from the evidence as to who was the person responsible for doing this though the witnesses, namely, PW-6 Kedar Nath and PW-7 Dandu Ram stated that this was done by “interested persons”. The basis for convicting the petitioners Parma Nand and Harbans Lal seems to be Ex.PE which is the award statement prepared by them for the award made on 24.3.1987. The learned (3) Court holds that since both these petitioners had not mentioned the area of Khasra No.4663/1, their guilt was established. This factor amongst others was used for reaching the conclusion of the guilt but the primary factor was the non-mentioning of the area. 5. The allegation of the prosecution was that the petitioners had defrauded the exchequer of the State as an award was made for 45 trees, but most of them were non-existent. 6. Learned counsel appearing for the petitioners pointed out certain contradictions which, according to them, are fundamental and going to the root of the case, but the same, according to them, have not been explained by the prosecution nor dealt with by the Courts below. As a matter of fact, it has always been assumed by the Courts that the facts alleged to constitute the offence had always existed and established by evidence. 7. It was undisputed before me that in the file Ex.PA the award was made on 20.1.1978. It was pointed out that this award itself notes and holds that the road has been constructed through the land of the claimants sought to be acquired about 8/10 years prior to the making of the award which ante dates the possession of the Government prior to the time when the award was made. This fact was urged by learned counsel for the petitioners to say that Ex.PW-6/G was prepared (4) on 21.4.1982 and Ex.PW-6/H was prepared on 26.4.1982 showing the number of trees standing on the land much after the possession has been taken and it was not possible at that particular point of time to have ascertained the number of trees standing on the land. 8. I also find from the evidence of PW-5 Swayam Ram that his statement is ambivalent. He admits that both the petitioners S/Shri Parmanand and Harbans Lal were not working in the office of the Land Acquisition Collector in 1982 when these two documents were prepared and they were posted later-on between 1983 to 1987. Petitioner Parmanand was posted in the year 1983 to 1987 and Harbans Lal from 1985 to 1989. He admits his signatures on Ex.PE. This aspect does not seem to have been considered by the learned Courts below. Ex.PE is the award that forms the basis for convicting the accused Harbans Lal and Parmanand. Ex.PW-6/H is a document which shows that there were 45 trees standing on the spot. The witness states that this tampering may have been done by “various interested persons” whom he does not know. This witness has signed on the statement Ex.PE which was purportedly prepared by the petitioners, namely, Parmanand and Harbans Lal. 9. Adverting to the evidence of PW-7, Dandu Ram, I am surprised to find that he has appeared in the Court after retirement and produced part of the official record from his personal custody. He states (5) that some kind of enquiry has been carried out regarding which Ex.PW-6/A to Ex.PW-6/E, the communications were addressed by him to the Vigilance Department, were prepared. The basis of his saying that Ex.PW-6/H has been tampered with because he did not tell that one copy of the record was in his possession. How and on whose instructions he retained the official record after retirement in his personal custody, even as an officer, is not clear. It is also in evidence that Ex.PW-6/G and Ex.PW-6/H were signed by this witness and the Junior Engineer of Public Works Department, who has not been produced in evidence. 10. So far as the petitioner Ridhi Singh is concerned, the case against him is that he had a power of attorney executed in his favour by one of claimants Piar Singh who, when appeared as PW-8, had admitted that he had received the entire amount. If that be so, surely this witness was also the part of the conspiracy but this aspect has also not been considered. 11. The case against Rattan Singh petitioner is that he has prepared the statement of valuation of trees. But the note prepared shows that he has made the statement on the date on the material supplied to him. The fact of criminality has to be established before it can be said that the record was not properly prepared. It has also been pointed out that the record shows that the supplementary award was required to be (6) made for 150 trees though infact award subsequently made was only made for 85 trees. 12. There is also some doubt on the record as to whether sanction was received from the Government by PW-5 Swayam Ram for passing the award which is above Rs.one lac. 13. Looking to the entirety of the case, I deem it fit to send this case for retrial on the evidence on record. The parties shall appear before the Chief Judicial Magistrate, Lahaul & Spiti at Kullu on 2nd December, 2010, who shall proceed with the case in accordance with law. I have not expressed any opinion on the respective contentions of the parties as also on the merits of the case. This petition is disposed of. Let record of the case be sent back to the trial Court forthwith. July 21, 2010. (Dev Darshan Sud) (aks) Judge.