CRIMINAL APPEAL 769 of 2002 on 27 February 1984

1. Sh.Balak Ram son of Sh.Paras Ram R/o Thakur House, Chotta Shimla-171002.

2. Sh.Chet Ram son of Sh.Sita Ram R/o Patwari Halog Dhami, District Shimla.

3. Kishan son of Sh.Chet Ram R/o Shadnaghati, P.S. Chotta Shimla.

….Respondents.

Coram:

Hon’ble Mr.Justice R.B.Misra, Judge.

Hon’ble Mr. Justice Dev Darshan Sud, Judge.

Whether approved for reporting1?

For the appellant: :Mr. R.K.Sharma, Sr.Addl. Advocate General with Mr.Rajinder Dogra, Addl. A.G. For Respondent: :Mr.Anand Sharma, Advocate with Mr.Rajiv Jiwan and Mr.A.K.Vashishat, Advocates.

Dev Darshan Sud, J(Oral)

The State has appealed against the judgment of the learned Chief Judicial Magistrate, Shimla acquitting the respondents for offences under Sections 420, 467, 468, 471 and 120-B of the I.P.C.

2. The prosecution case in brief is that one Kishori Lal, General Secretary of R.B.L Banarsi Dass Trust Society, Shimla complained to the Chief Minister vide Ext. PW6/A that one Balak Ram accused No.1 who was posted as ASI in the Head Office of Enforcement had constructed a house below H.P. Secretariat building in Chotta Shimla on the land measuring 1.12 bigahs comprised in Khasra No.42 and 56 in Mauza Kasumpti Koti, Tehsil Shimla. This land was purchased by him for a consideration of Rs. 15,000/- from its earlier Pattadar (Leaseholder) Mrs. Alaiman widow of A.B.Bhan. It was stated that the sale deed was executed on 27.2.83 but was registered on 27.2.1984 after the lapse of time prescribed by law. Mrs. A. Bhan widow of A.B. Bhan who was described as Mrs. Alaiman in the sale deed had died more than twenty years ago. In these circumstances, he used the forged document which was prepared in collusion with the revenue officials. It was stated that the market price of the land in the vicinity was Rs.300/- to Rs.500/- per sq. yard by which the cost would come to Rs.4 lacs to Rs.5 lacs whereas the sale consideration shown is only Rs. 15,000/-.

3. During investigation, the death certificate of Mrs. A.Bhan alias Mrs. Alaiman was procured from the record of Municipal Corporation, Shimla and it was found that she had died on 8.4.1963. This fact was further fortified from the records of the Church of Mithael Catholic, Shimla. The prosecution then proceeds that Sh.A.B.Bhan had only one wife, who was known as Mrs. L.Bhan. In these circumstances, a clear case of forgery and cheating was made out. One of the accused Gian Chand, who was posted as District Revenue Officer is supposed to have mis-conducted the proceedings but had been discharged by the Court.

4. The evidence on record consisted that of PW1 Devinder Singh Chandel who says that he sent the complaint Ext.PW1/A to Hon’ble the Chief Minister stating that the land belonged to the Government and that Mrs. Alaiman had died fifteen or twenty years ago. Then he states about the market rate of the property. He admits that he made no inquiry about the sale deed from the office of the Sub Registrar and that he is having litigation against Balak Ram respondent since the year 1990 about some encroachment. The construction of his building started in the year 1980 was also the subject matter of the litigation. He states nothing about the execution of the sale deed. PW2 Sh. K.L.Sharma states that on the application Ext. PW7/A moved in the Court the specimen signatures of Chet Ram and Krishan Chand have been taken in his presence. PW3 Kangnu Ram says that on 27.2.1984, he had scribed the sale deed on the instruction of Mrs. Alaiman widow of Sh. A.B.Bhan and she had put her signatures on it. She was an old lady. PW4 Ratti Ram is the witness to the mutation. PW6 Kishori Lal Sood, who was the Secretary of the R.B.L. Banarsi Dass Trust, asked the accused Balak Ram not to encroach on the land of the trust. He was told that this land had been purchased by him from Mrs. Alaiman. PW8 Father Thomas says that after consulting the record of the Cemetry, he found that Mrs. Luise W.Bhan widow of W.Bhan aged about 78 years died on 8.4.63 and was buried in the Cemetry at Sanjauli on 9.4.1963. The death certificate Ext.PW8/A was issued accordingly. He admitted that in Ext.PW8/A the name of the father or the husband of Louise W.Bhan has not been mentioned. We also find from the record that PW12 Brij Lal Sharma, who investigated the case collected death certificate of Mrs. Luise W. Bhan Ext.PW12/F from Municipal Corporation, Shimla. He admitted that he did not take into possession the record of the Cemetry at Sanjauli. Mutation (Ext.D1) was produced on the record by the respondents to show that Mrs. Alaiman widow A.B.Bhan had executed registered sale deed No.2 dated 17.4.65 for a consideration of Rs. 12,000/- and on that basis mutation No. 26 was attested and sanctioned on 17.9.66 by the A.C. IInd Grade. The learned Court on this basis holds that Mrs. Alaiman was alive. Considering the death certificate which has been produced on the record, the learned court holds that they do not in any manner relate to Mrs. Alaiman but to Mrs. Luise W.Bhan. The court also holds that the evidence of PW3 Kangnu Ram proved that the sale deed had, in fact, been executed on 27.2.1984.

5. We have heard learned counsel for the parties and gone through the record. It is urged on behalf of the State that there is miscarriage of justice and improper appreciation of the evidence on record. Emphasis is on the fact that Mrs. Alaiman had, in fact, died. We are unable to accept this submission. We note from the evidence that the genesis of the entire case is a dispute of encroachment of land. Leaving that aside, we cannot appreciate as to how it has been established on record that Mrs. Alaiman is dead. The death certificate Ext.PW2/F issued by the Municipal Corporation, Shimla, only states the name of the deceased as Mrs. Luise W. Bhan. There is no parentage or the name of the husband on record. She is not the same lady as has been alleged by the prosecution. We also find that

the other evidence on the record especially of PW8 Father Thomas also does not establish the identity of the deceased. In this view of the matter, we hold that the prosecution has been unable to establish its case. There is, thus, no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondents are discharged.

(R.B.Misra), Judge.

(Dev Darshan Sud), Judge.

October 20, 2011 (R)