Crl. Revision No. 2224 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 2224 of 2005 Date of Decision: February 22, 2011 Jagroop Singh ---Petitioner versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.J.S.Brar, Advocate, for the petitioner Ms. Gagan Mohini, Assistant Advocate General, Punjab *** GURDEV SINGH, J. The present petitioners-accused, Jagroop Singh and his father Balwinder Singh were charged for the offences under Sections 419, 420, 467 and 471 IPC. They were tried for those offences. Balwinder Singh died during the trial whereas the present petitioner-accused was convicted by Judicial Magistrate Ist Class, Ferozepur, for the said offences, vide judgment Crl. Revision No. 2224 of 2005 -2- dated 9.5.2000 and was sentenced as under:- Sr. NO. Under Section Sentence imposed Fine 1. 419 IPC To undergo rigorous imprisonment for a period of one year `1000/- In default of payment of fine to further undergo rigorous imprisonment for a period of one month 2. 420 IPC To undergo rigorous imprisonment for a period of two years `1000/- In default of payment of fine to further undergo rigorous imprisonment for a period of one month 3. 467IP C To undergo rigorous imprisonment for a period of two years `1000/- In default of payment of fine to further undergo rigorous imprisonment for a period of one month 4. 471 IPC To undergo rigorous imprisonment for a period of two years `1000/- In default of payment of fine to further undergo rigorous imprisonment for a period of one month Balwinder Singh had another son named Resham Singh. Both his sons appeared in the Matriculation examination. Resham Singh had appeared in the year 1989 under Roll No. 251249 and secured 331 marks out of 800 and was declared pass. Jagroop Singh appeared in the month of March, 1992 under Roll No. 270740, but was declared fail. As per the prosecution version, as incorporated in the letter dated 19.8.1994, Ex. PW8/B, written by Major K.P.Chauhan tot he Officer-in-Charge of the police station, Resham Singh was enrolled in the Sikh Regiment of the Indian Army on 18.12.1993 by BRO, Ferozepur and reported for training in Sikh Regiment Centre Ramgarh Cantt., Crl. Revision No. 2224 of 2005 -3- Bihar on 20.12.1993. For verification, a letter was written to SSP, Ferozepur, which was replied by the SSP, vide letter No. 710-CD dated 25.3.1994, and it was reported by the SSP that Balwinder Singh had two sons and out of them, Resham Singh was Matriculate whereas Jagroop Singh failed in 10th class and the person, who had been so recruited in the army, was Jagroop Singh, who impersonated himself as Resham Singh and got himself recruited on the basis of the certificate of Resham Singh. It was on the basis of that, verification was made by SSP, that the said letter was written to the Officer-in-charge of Police Station Ferozepur Cantt. On the basis thereof, FIR Ex. PW8/A, was recorded and Jagroop Singh was handed over to the police authorities. In the course of investigation, Harbans Singh ASI, PW-8 collected the Matriculation Examination Certificates of the accused and Resham Singh. The other relevant documents were also taken into possession and after completion of the investigation, challan was put in before the Judicial Magistrate Ist Class, who convicted and sentenced the accused, as aforesaid. The petitioner-accused preferred an appeal against his conviction and sentence, which was decided by Sessions Judge, Ferozepur, vide judgment dated 19.10.2005. Finding no illegality in the order of the trial court, the appeal was dismissed and as such the conviction and sentence of the petitioner- accused was maintained. The present revision has been preferred by him against that conviction and sentence. It has been submitted by counsel for the petitioner-accused that the complainant was not examined in the court and his non-examination is fatal to the prosecution. All the witnesses, examined by the prosecution, had deposed about the photo stat copies of the documents and the original documents were never proved on the record. The conviction of the accused could not have been recorded on the basis of those photo stat copies. According to him, the accused Crl. Revision No. 2224 of 2005 -4- is entitled to acquittal and if the conviction is to be maintained, then he is entitled to the benefit of probation as he was leas than 21 years of age at the time of his conviction. On the other hand, State counsel has tried to support the finding of conviction and sentence recorded by the trial court and upheld by the Appellate court. According to her, there is no such illegality in the judgments of those courts. From the evidence so produced by the prosecution it cannot be held that the petitioner-accused impersonated himself as Resham Singh at the time of his recruitment in the Indian Army and used the Matriculation certificate of Resham Singh. Santa Singh, Constable, PW-1, Sukhdev Singh, Teacher, PW-2, Dalwinder Singh, LDC, PW-3, Brig. V. Jacob, PW-4, Assa Singh, Sarpanch, PW-5, Gurdial Singh, PW-6, Baljit Singh, Senior Assistant, PW-7, Harbans Singh ASI, PW-8 and Hari Singh ASI, PW-9, were examined by the prosecution for proving the guilt of the accused. However, when the incriminating circumstances appearing against him in the statements of these witnesses were put to accused during the recording of his statement under Section 313 Cr.P.C., in order to enable him to explain the same, he denied those circumstances and pleaded his false implication. Santa Singh Constable, PW-1 and Dalwinder Singh, LDC, PW-3 have deposed only about the taking into possession of the photo stat copies of the documents by the Investigating Officer in their presence, thereby, corroborating the statement of Harbans Singh,ASI PW-8, who was the Investigating Officer, and had taken those documents into possession during the investigation. Sukhdev Singh, PW-2, and Baljit Singh, PW-7, have only deposed about the passing of the Matriculation examination held by the Punjab School Education Board by Resham Singh and that Jagroop Singh, who also appeared in that examination Crl. Revision No. 2224 of 2005 -5- failed. Hari Singh ASI, PW-4, partly investigated this case and made his statement about the recording of the statements of the witnesses under Section 161 Cr.P.C. The prosecution tried to prove on the record, the photo stat copy of the letter of verification, Ex. P.7, by examining Assa Singh, Sarpanch, PW- 5 and Gurdial Singh, PW-6. This certificate was issued by Assa Singh, Sarpanch, regarding the good character of Resham Singh. He did support the prosecution case in the court, whereas the same was not supported by Gurdail Singh, PW-6, in whose presence Assa Singh, Sarpanch, is stated to have put his signatures on the asking of Balwinder Singh. It is not the statement of Assa Singh, PW-5 that this Character Certificate was in respect of Jagroop Singh- accused. He stated that Balwinder Singh-accused, came to them and told that the character certificate was required in respect of his son Resham Singh, who want to get himself enrolled in the army. It was only thereafter that he put his signatures on that certificate. No doubt, in the second part of his statement, he has stated that subsequently he came to know that Balwinder Singh got his elder son personated as Resham Singh and fraudulently used that certificate. That part of his statement is hearsay evidence and no finding could have been recorded by the criminal court on the basis thereof. According to Brig. V. Jacob, PW-4, he had only attested the copies of the documents prepared at the time of recruitment. He proved those photo stat copies as Ex. P.6, to Ex. P.8. As per the statement of Harbans Singh ASI, PW-8, he had taken into possession these photo stat copies. Even on the basis of these documents it cannot be held that it was Jagroop Singh, accused, who impersonated himself as Resham Singh and got himself recruited in the Indian Army on the basis of the certificate of Resham Singh. The letter, EX. PW8/A, was proved on the record by Harbans Singh ASI, PW-8. He was not Crl. Revision No. 2224 of 2005 -6- the author of the letter and for proving the same, the prosecution was required to examine the author thereof; namely Major K.P.Chauhan. That complainant was never examined in the court, who was the material witness. For his non- examination, an adverse inference is to be drawn against him. Moreover, this letter cannot be used as substantive piece of evidence and could have been used only for corroborating or contradicting the author thereof during the process of the making his statement before the court. A letter was written to the police by the Military authorities to verify the antecedents of the accused and on the basis of the verification report received by them from the SSP this complaint was made. Thus, it was the police official, who made that police verification, who was the material witness to prove in the court that Jagroop Singh, accused, got himself recruited in the Indian Army by impersonating himself as Resham Singh. Neither any such police official was examined nor the letter written by SSP to the Military authorities, was proved on the record. It is mentioned in the letter Ex. PW8/B, itself that such impersonation was detected when the Verification Roll was received from the SSP, Ferozepur. In view of what has been said above, conviction of the petitioner could not have been recorded on the basis of the evidence so produced before the trial court. That evidence has been misread by the trial court and appellate court. The findings so recorded are perverse and illegal. In the result, the revision is hereby accepted. The conviction and sentence of the petitioner is set aside. The fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE February 22, 2011 PARAMJIT