IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.1490 of 2003 Date of decision: February 18, 2010 Pritpal Singh and others .. Petitioners Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.K. Bawa, Advocate for the petitioners. Mr. C.S. Brar, DAG, Punjab for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 15.7.2003 passed by the learned Additional Sessions Judge, Patiala, dismissing the appeal filed by the accused-petitioners (herein referred as 'the accused') against the judgment dated 20.9.2002 passed by the Judicial Magistrate Ist Class, Patiala, convicting and sentencing them as under :- U/s 120-B IPC : Rigorous imprisonment for six months and to pay fine of Rs.300/- each. U/s 419 read with : Rigorous imprisonment for one year and to Section 120B IPC pay fine of Rs.500/- each. U/s 465 IPC : Rigorous imprisonment for nine months and to pay fine of Rs.400/- each. U/s 467 IPC : Rigorous imprisonment for three years and to pay fine of Rs.1000/- each. U/s 468/471 IPC : Rigorous imprisonment for one year and to pay fine of Rs.500/- each, on both counts Succinctly speaking, the case of the prosecution, as culled out from the complaint Ex.P8 made by Paramjit Kaur complainant (herein referred as 'the complainant') are that she was married to Jagminder Singh Sidhu son of Pritpal Singh (accused) on 14.11.1990. Out of the wedlock a Criminal Revision No.1490 of 2003 -2- *** daughter was born to them. However, Jagminder Singh died on 4.10.1992. Thereafter, the complainant was married to Manvinder Singh younger brother of Jagminder Singh by Chader Andazi i.e. ceremony prevailing in the Jat Sikhs. Despite the sufficient dowry given at the time of marriage with Manvinder Singh accused, Pritpal Singh and Manvinder Singh were not satisfied and were placing further demands. There was a plot bearing No.1265, Phase II, Urban Estate, Patiala which was in the name of Jagminder Singh. After his death, the complainant and her daughter were to succeed the said plot. However, the accused fictitiously sold the same to Gurmit Singh for a sum of Rs.3 lacs and later on executed a forged general power of attorney dated 30.6.1993 purported to have been executed by Jagminder Singh in favour of Gurmit Singh. Manvinder Singh projected himself as Jagminder Singh before the Sub-Registrar while executing the power of attorney, whereas, Sarban Singh Lumberdar and Pritpal Singh appeared as witnesses. On the aforesaid complaint, the case was registered, investigated and accused were challaned. The accused were charged under Sections 120-B, 419, 465, 467, 468, 471 IPC, to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Gurbax Singh Vasika Nawis (PW1), Vijay Bhalla, Sr. Assistant, PUDA (PW2), Nirmaljot Kaur (PW3), Parminder Singh Registry Clerk Dudhan Sadhan (PW4), Bharpal Dhawan, Registrar Births & Deaths, Chandigarh (PW5), Paramjit Kaur complainant (PW6), Balbir Singh (PW7) and SI Hargobind Singh (PW8). On closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. but they denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In defence, they examined M.N. Sharma Document Expert (DW1), who stated that specimen signatures of Manvinder Singh and Pritpal Singh were not identical with their disputed signatures on the general power of attorney. The trial ended in conviction. Their appeals were also dismissed. Arguments heard. Record perused. Criminal Revision No.1490 of 2003 -3- *** The admitted facts are that Pritpal Singh had two sons namely Jagminder Singh and Manvinder Singh. The complainant Paramjit Kaur was married to Jagminder Singh who died on 4.10.1992. It is also not in dispute that Jagminder Singh was the owner of the plot No.1265, Urban Estate Phase II, Patiala worth Rs.40168.90 about which he had deposited 29% on 14.7.1992 and another instalment of Rs.9040/- was deposited by Gurmit Singh on 5.7.1993. Bharpal Dhawan, Registrar Births & Deaths Chandigarh (PW5) has proved the death certificate of Jagminder Singh as Ex.P7 revealing that he had died on 4.10.1992 and it was got registered with the Registrar of Births & Deaths on 5.10.1992. There is no denying a fact that power of attorney Ex.P1 purported to have been executed by Jagminder Singh deceased is dated 30.6.1993. The death of Jagminder Singh on 4.10.1992 has been confirmed by his wife Paramjit Kaur while appearing as PW-6. Though, there is lot of evidence that out of the wedlock of Paramjit Kaur and Jagminder Singh a child was born and after the death of Jagminder Singh she had remarried on 6.12.1992 but this evidence is not of much relevance as the case relates to fabrication of the power of attorney Ex.P1 by the accused and transfer of the plot No.1265 Urban Estate Phase II, Patiala to Gurmit Singh on the basis of the general power of attorney who in turn sold the same to his wife Nirmaljot Kaur. Now the question arises, “whether Manvinder Singh projected himself to be as Jagminder Singh and whether it was same Pritpal Singh i.e. father of the deceased and Sarban Singh Lumberdar accused who had attested the said power of attorney?” Since much stress has been laid by the learned counsel for the petitioner that the prosecution has failed to prove the identity of the accused who signed the agreement being executent and the witnesses, therefore, the necessary evidence is required to be dealt with for determination of the same. First witness to prove the identity of Sarban Singh is Gurbax Singh (PW1), a Deed Writer who scribed the power of attorney Ex.P1. Though in the examination in chief he has stated that power of attorney was scribed at the instance of Jagminder Singh in favour of Gurmit Singh Mann and the witnesses Sarban Singh and Pritpal Singh had signed the said power of attorney. He also identified the signatures and the hand writing on the said Criminal Revision No.1490 of 2003 -4- *** power of attorney, but during cross examination he has stated that he does not know the parties personally, yet, he has indicated that Sarban Singh witness is the same person who had signed the power of attorney as witness. The second witness to identify Pritpal Singh and Jagminder Singh is Nirmaljot Kaur (PW3) who has stated that Jagminder Singh and Pritpal Singh had delivered the possession of the plot to her and agreement to sell was signed by Jagminder Singh and Pritpal Singh. But, in the later part of her statement she has stated that she came to know later on that Jagminder Singh husband of Paramjit Kaur had already died and the accused Manvinder Singh signed as Jagminder Singh. In cross examination again this question was asked to her specifically and she has answered the same consciously. Though, she has stated that Pritpal Singh and Manvinder Singh are not known to her personally, yet in the examination in chief she has clearly stated that Manvinder Singh signed the document as Jagminder Singh. Thus, it is established on record that the agreement was signed by the accused persons. Nirmaljot Kaur (PW3) again in her cross examination has categorically stated that the accused have returned the money deposited by her with the trust. From this part of her statement, inference could be drawn that the accused are directly involved in the case i.e. they had returned the money taken from her and her husband (i.e. original allottee of the plot). It is also no denying a fact that Jagminder Singh died on 4.10.1992 and the power of attorney is dated 30.6.1993, as such, definitely the agreement having been preferred after the death of Jagminder Singh a forged document. Paramjit Kaur (PW6) has stated that 2-4 months after her re-marriage with Manvinder Singh the accused started harassing and taunting her on account of bringing less dowry and ultimately she was turned out of the house on 6.12.1992 and now the relations between them are strained. All this goes to show that after Paramjit Kaur was turned out of the house, they entered into bargain to dispose of the plot No.1265 by fabricating the power of attorney in favour of Gurmit Singh Mann. The another circumstance which clarifies the fact that the accused are the perpetrators of the crime is that not only the power of attorney Ex.P1 was procured, but one Will dated 30.6.1993 and an agreement Ex.P6 dated 26.6.1993 were also prepared, purported to have Criminal Revision No.1490 of 2003 -5- *** been executed by Jagminder Singh. Certainly, Jagminder Singh was no more in the world, therefore, these documents were also fabricated by the accused and could not have been prepared except by impersonation. Still, another circumstance leading to the involvement of the accused is that it was Pritpal Singh who had gone to settle the bargain and who had delivered the possession as admitted by Nirmaljot Kaur (PW3). Balbir Singh (PW7) the Property Dealer has stated that Pritpal Singh had come to him 2-3 times for sale of the plot in the year 1997 and was searching for the customer. He has again stated that he negotiated regarding the plot and saw the papers. Gurmit Singh paid Rs.25000/- as an earnest money to Pritpal Singh. He further states that Pritpal Singh called his son, projecting Manvinder Singh to be Jagminder Singh, and got his signatures. All this goes to show that Pritpal Singh and Manvinder Singh fully knew that they were cheating Gurmit Sigh and also depriving Paramjit Kaur and her minor daughter of her right in the property by way of impersonation. Much stress has been laid that the Investigating Agency was quite negligent and failed to conduct the investigation properly. No sufficient evidence could be brought by ASI Ramji Dass on the record in order to establish that the signatures of Pritpal Singh, Sarban Singh and Manvinder Singh on Ex.P1 were identical with their specimen signatures, therefore, in the absence of comparison of the specimen signatures by the Investigating Agency, no definite opinion could be formed that these were the accused who had signed/thumb marked the agreement. Though, both the accused namely Paramjit Kaur and Manvinder Singh had given their specimen signatures in the court of Chief Judicial Magistrate, Patiala on 25.11.1995, but the Investigating Officer did not collect those specimen signatures for sending the same for comparison to the Government Handwriting and Finger Print Expert, for the reasons best known to him. Investigating Officer also did not move any application before the Duty Magistrate or the Chief Judicial Magistrate, Patiala for taking specimen thumb impression of the accused Sarban Singh for the purpose of comparison. Science of finger print being the perfect science, if questioned thumb impression, either taken in the court or collected from somewhere else, then identity of Sarban Singh could be established. Sarban Singh Criminal Revision No.1490 of 2003 -6- *** being the Lumberdar of village Mavi Sapan, his thumb impression could be made available from many documents, but ASI Ramji Dass Investigating Officer failed to collect the same deliberately for the reasons best known to him, therefore, benefit should go to the accused. In this regard, the conduct of the Investigating Officer, no doubt, needs to be condemned, but at the same time, the prosecution has been able to connect the chain of evidence as led by it in order to establish the identity of the accused. The accused were none else but the father and brother of the deceased and Sarban Singh was none else but the Lumberdar of the same village. All of them knew that Jagminder Singh had died on 4.10.1992 and Sarban Singh admittedly had thumb marked the power of attorney Ex.P1, obviously while joining intention with the accused to fabricate the power of attorney in favour of Gurmit Singh. Notwithstanding the fact that the Investigating Officer did not sent the signatures of Pritpal Singh and Manvinder Singh and also the thumb impression of Sarban Singh to the Government Handwriting and Finger Print Expert for comparison, yet ample evidence has come forth to connect them with the commission of the crime. Further more, the other circumstances leading to connect the accused with the commission of crime are that the power of attorney bears the signatures of Pritpal Singh in Punjabi and it bears the thumb impression of Sarban Singh. However, when Chief Judicial Magistrate, Patiala called upon the accused to give the specimen signatures then they gave the same in English on 25.11.1995 and thereafter they continued signing various documents in the court in English, obviously to avoid that their signatures may not be got compared. However, intelligently, they while changing their signatures with an intention to get them compared from the expert signed their statements under Section 313 Cr.P.C. in Punjabi. However, the court in its wisdom while picking up the signatures of Pritpal Singh from the application dated 27.11.2001 compared the same with his signatures on power of attorney Ex.P1 and observed as under :- “.... By further seeing the file, earlier he moved an application dated 27.11.2001 in this Court and he has also given affidavit in support of this application where he signed in Punjabi and Criminal Revision No.1490 of 2003 -7- *** one can see with naked eye difference of line quality of signatures. He has also moved application on 1.10.1997 under his signatures and there also line quality is better. That application was also supported by affidavit of the accused Pritpal Singh, this all shows that conduct of the accused was that truth should not come out.....” Similarly, Sarban Singh in order to disguise his identity put the blurred thumb impression, therefore, M.N. Sharma (DW1) also made a report that the same were not sufficient for comparison. As a matter of fact the report made by Mr. M.N. Sharma Handwriting and Finger Print Expert (DW1) cannot be believed as he made the comparison with the signatures of Pritpal Singh which he had made after the occurrence which appears to have been deliberately changed by Pritpal Singh and Manvinder Singh in the same way. M.N. Sharma (DW1) did not compare the signatures on the power of attorney with their earlier signatures or hand writing made on any public document prior to the registration of the case. Thus, this report made by M.N. Sharma (DW1) appears to be fake and futile exercise. It is also well settled by now that the expert witnesses are partisan witnesses and they support the party paying them. The evidence of the expert is really of a advisory character. The same being opinion evidence cannot supersede the direct evidence. As a matter of fact, the Handwriting and Finger Print Expert, though summoned by any party, in order to show their reliability and trustworthiness, should stand impartially to explore the standard data and form the opinion on that basis. The accused should not examine such experts over which a finger could be raised, where the report made by the expert is not clear, categoric and is doubtful, the court itself could perform the duty of an expert to reach the truth. It is also well settled by now that direct evidence cannot be replaced by an expert evidence. Thus, the trial court was right in ignoring the evidence of M.N. Sharma (DW1). Under these circumstances, this court forms the opinion that the First Appellate Court was right in upholding the conviction of the accused for the offences for which they had been charged. Criminal Revision No.1490 of 2003 -8- *** For the foregoing reasons and in view of the fact that both the courts below have returned the concurrent findings that these were the accused who were perpetrators of the crime and they with an intention to deprive Paramjit Kaur widow of Jagminder Singh sold the plot by way of power of attorney in favour of Gurmit Singh Mann who in turn sold the same to his wife. Resultantly, finding no merit in the petition the same is dismissed. February 18, 2010 (A.N. Jindal) deepak Judge