CR.A/395/2004 on 28 December 2012

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 395 of 2004

Date of decision: 28.12.2011

State of Himachal Pradesh.

…….Appellant.

Versus

Suresh Prashad S/o Shri Dwarka Prashad R/o H. No. 219, Village Kajheri, U.T. Chandigarh.

….Accused/Respondent.

Coram:

The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?

For the Appellant/State : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. A.G.

For the Respondent : None.

--------------------------------------------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment. ?

R.B. Misra, J.

The present Criminal Appeal under Section 378(3) of the Code of Criminal Procedure has come up for adjudication after the grant of leave to appeal was allowed against the impugned judgment dated 24.3.2004, passed by learned Judicial Magistrate 1st Class, Paonta Sahib, Distt. Sirmour, in Criminal Case No. 30/2-98 and accused/respondent was directed to be arrested through bailable warrant to the tune of Rs. 25,000/- vide order dated 20.09.2004, of this Court.

2. Despite endeavour having made from time to time, the presence of accused/respondent could not be ensured. Even non-bailable warrants also could not bring any fruit, even follow up action under Section 82 and 83 of the Code of

Criminal Procedure was proposed. However, the State Government was heard today on its request to assess, as to whether present Criminal Appeal is having merit or not ?

3. We have heard Mr. Rajinder Dogra, learned Addl. Advocate General and also perused the documents and have gone through the statements of prosecution witnesses.

4. In order to appreciate the merits of the Criminal Appeal, it appears that accused/respondent at the relevant time was working as ‘Munshi’ with complainant Satish Suri till 10.04.1996, while construction work of Ranbaxy unit was going on. Accused/respondent had claimed permanent disability, on the basis of alleged ‘no permanent disability certificate’ wherein the accused/respondent was assessed 35% disability. On the claim of respondent, Commissioner, Workmen’s Compensation, enquired into the matter where it was revealed that Medical Board had issued “no permanent disability certificate” but the same of tampered making it “35% permanent disability” and on such false disability certificate, accused/respondent claimed Rs. 2 lac compensation. After enquiry, accused/respondent was charged for the offences under Sections 420, 465, 467, 468, 471, 476 and 511 of the Indian Penal Code and the case was tried by the learned Judicial Magistrate 1st Class, Paonta Sahib.

5. In order to prove its case, prosecution examined eight witnesses, whereas, accused/respondent through his statement under Section 313 of the Code of Criminal Procedure, has denied the prosecution case.

6. Prosecution has relied on the testimony of Dr. G. Narang, PW-1, Dr. Gurdarshan Gupta, PW-5, Shri M.C. Joshi, Asstt. Government Examiner, PW-8. PW-1 has stated that no disability was found on the examination of the accused/respondent. PW-5 Shri M.C. Joshi, one of the member of the Medical Board has stated that in the certificate Ext. PW2/B ‘No permanent disability’ was written by him. PW-8 has indicated that word ‘No’ was removed in the permanent disability certificate and 35% was added making it “35% permanent disability”.

7. The alleged certificate is in two parts namely ‘A’ and ‘B’. In part ‘A’ the accused/respondent is said to have added 35% in the column of extent of injury and in ‘B’ part, accused/respondent is said to have erased ‘No’ occurring before permanent disability. However, the investigation has failed to conclude as to whether it was the accused/respondent alone who had added 35% disability in part ‘A’ of the permanent disability certificate or some one else had done mischief. SI Surjeet Ram, PW-7, Investigating Officer, responsible for sending the document Ext. PW2/B to the document examiner, however, has also not bothered to investigate as to who is the Clerk of Chief Medical Officer’s office who has filled up ‘A’ part of the disability certificate. Nothing has been divulged, in what form the disability certificate was handed over to the accused/respondent. HC Mahender Singh has also not investigated as to who has filled up proforma of disability certificate. Nothing has been brought by the Investigating Officer, as in whose hand writing the entire words were written in disability certificate and in whose hand writing 35% was added and by which ink or by which person ‘No’ from disability certificate was erased.

8. In our considered view, the complainant has failed to prove as to whether accused/respondent alone was responsible for erasing ‘No’ from the disability certificate or he alone was responsible for adding 35%. It appears, that the Medical Board, while issuing no disability certificate had not even apprised to the accused/respondent that he was free from any disability.

In the present case, the accused/respondent was not successful in receiving the claim on such certificate. The prosecution also could not conclude that before issuance of disability certificate, ‘no disability certificate’ was issued in the same form and later on, accused/respondent had tampered such certificate issued to him.

9. In our considered view, on analysis of prosecution witnesses and materials on record, learned Judicial Magistrate 1st Class has not done any illegality in arriving at a conclusion that prosecution has failed to prove his case beyond doubt. In these circumstances, there appears to be no scope of interference in the impugned judgment, therefore, the criminal appeal of the State, being devoid of merit, is dismissed.

( R.B. Misra)

Judge

December 28, 2011

( Sanjay Karol)

(Naveen)

Judge