Arun Baruah And Anr vs State Of Assam

This revision has been preferred against the judgment and order dated 22.12.2009, passed by the learned Sessions Judge, Jorhat in Criminal Appeal No.13/2008, whereby the learned Court has upheld the judgment and order of conviction and sentence, passed by the learned CJM, Jorhat in G.R. CaseNo.243/1999, convicting the accused/petitioners under Sections 467/468/471/114 of the IPC.

The prosecution case in be brief may be narrated as follows:

The present petitioner No.1 Arun Baruah and the petitioner No.2 Smti Puspa Dutta Baruah are husband and wife. The petitioner No.1 is Sub-Engineer in the office of the PWD, Jorhat East Division during the period from 1996 to 1999. On 25.01.1999, the petitioner No.2 came to the office of the Executive Engineer, Jorhat E & D Division and produced a copy of transfer order dated 22.01.1999, issued by the Chief Engineer, Flood Control Department along with a release order issued by the Executive Engineer, Jorhat E & D Division. Subsequently Sri Khirod Ch. Das, the then Executive Engineer came to know that the petitioner No.2 had produced false transfer order, who sought clarification from the Chief Engineer, Flood Control Department and accordingly he was informed that no such transfer order was issued by the Chief Engineer, Flood Control Department. He lodged the FIR and the O.C., Jorhat P.S. registered the Jorhat P.S. Case No.113/99, u/s.468/471 IPC.

During the investigation, it was revealed that petitioner No.1, Sri Arun Baruah manufactured the last pay certificate, form for fixation of initial pay and service book purporting to be issued by the Executive Engineer, Dhemaji E & D Division, in the name of petitioner No.2 Smti Puspa Dutta Baruah and with the help of those documents, she managed to join the office of the Executive Engineer, Jorhat and after conclusion of the investigation, charge sheet u/s.468/471 of the IPC was filed against the present petitioners.

On appearance of the accused/petitioners, charges u/s.467/468/471/114 of the IPC were framed against the petitioner No.1, whereas the petitioner No.2 was charged u/s.471 of the IPC. Both the accused pleaded not guilty to the charges and claimed to be tried.

During the trial, the prosecution examined fourteen witnesses and the defence examined none.

The plea of the defence is of total denial. After conclusion of the trial, the Court found both the accused/petitioners guilty and sentenced accused/petitioner No.1 Arun Baruah u/s.468/471 read with section 114 IPC and sentenced him to undergo R.I. for two years and to pay a fine of Rs.1000/- in default, R.I. for one month u/s.468 IPC and R.I. for six months and fine of Rs.500/-, in default further R.I. for one month u/s.471/114 IPC convicting the accused/petitioner No.2 Smti Puspa Dutta Baruah u/s.471 IPC and sentenced her to under R.I. for two years and to pay a fine of Rs.1000/- in default of payment of fine, further R.I. for two months.

Being aggrieved by the aforesaid order of conviction, the petitioners preferred an appeal being Criminal Appeal No.13/2008 before the Court of learned Sessions Judge, Jorhat and the learned Appellate Court, after hearing the parties dismissed the appeal by the order dated 22.12.2009.

Accordingly the present Revision Petition is filed by the petitioners before this Court.

I have heard Mr. N.J. Das, learned counsel for the petitioners as well as Ms. A. Begum, learned counsel representing the State respondent.

The learned counsel for the petitioners Mr. Das has urged before this Court that non-examination of the Chief Engineer who denied to have issued the transfer order to Smti Puspa Dutta and having no corroborative evidence to support the expert evidence is fatal to prosecution. Thus it contends that despite there being no any proper evidence to suggest the complicity of the accused/petitioners regarding preparation of forged documents, the learned Courts below had erred in arriving at the guilt of the accused/petitioners.

Per contra, the learned counsel for the State respondent has however contends that there is no any illegality and impropriety while arriving at the guilt of the accused by the Courts below. In view of overwhelming official witnesses to suggest the complicity of the present petitioners by oral and documentary evidence, the learned trial Court has rightly convicted the accused persons and there remains no any scope to interfere into it.

PW.1, Nazimuddin Ahmed, PW.2, Rajen Gogoi, PW.3 Himan Bordoloi and PW.4 Paribanu, all are employees in the office of the Executive Engineer, E & D Division, Jorhat. In sum and substance they have stated that on 27.01.1999, accused Puspa Dutta joined as Section Assistant in the office of the Executive Engineer, E & D Division, Jorhat by producing her transfer order from Dhemaji E & D Division and she also produced other relevant documents like last pay certificate, service book, etc. About two months after her joining, the Executive Engineer Sri Khirod Das (PW.7) having come to know that the documents submitted by Smti Puspa Dutta at the time of her joining was forged, he informed the matter to the Police and also discharged her from service. They have also stated police seized some documents relating to the service of Smti Puspa Dutta vide M. Ext. No.1 to M. Ext. No.9, during the course of investigation vide Exhibit 1 (seizure list), from their office.

PW.5 Arun Chandra Das and PW.6 Prasanta Gogoi stated in their statement that accused/petitioner No.1 Arun Baruah worked as Sub-Engineer in their office and in the year 1999 he was suspended from the service for his alleged involvement in a fraud case. In presence of these two witnesses, vide Ext.2 seizure list, police seized M. Ext. 10 to M. Ext. 13 (regarding one application, one charge report, one joining report and one earned leave application, submitted by Arun Baruah in their office) and Ext.2(2) is the signature of PW.6 as a witness.

PW.7 Khirod Das is the informant of this case, who stated in his evidence that on 27.01.1999, accused Smti Puspa Dutta through M. Ext.3 joined as Section Assistant in the office of the Executive Engineer, E & D Division, Jorhat on being transferred from Dhemaji Division. According to this witness, about two months after joining of Puspa Dutta, on receipt of information regarding the joining in the service by forged transfer order, he wrote to the Chief Engineer, Flood Control Department regarding the genuineness of the transfer order of Puspa Dutta vide M. Ext.6 letter. In reply, the Chief Engineer intimated him that no any transfer order in respect of Puspa Dutta was issued from his end vide M. Ext.7. Accordingly he filed the ejahar (Ext.4). The witness further stated that after filing of the ejahar, accused Puspa Dutta stopped coming to the office. In his cross-examination the witness stated that assuming the signature of the Chief Engineer in the transfer order (M. Ext.1) as genuine, he allowed Puspa Dutta to join in the service. He has also stated about the seizure of documents by police during the course of investigation such as the last pay certificate, service book, etc. of Puspa Dutta. He has however stated that he knows the signature of Chief Engineer Mr. K.C. Sarma in M. Ext.7.

PW.8 Horeswar Das, Dy. Director in-charge, Questioned Document Division stated in his deposition that on 06.02.2002, while he was working in the Forensic Science Laboratory, Assam at Kahilipara, he received certain documents in connection with Jorhat P.S. Case No.113/99, u/s.468/471 IPC, from the S.P. Jorhat. This witness carefully and thoroughly examined the documents in the case and compared the questioned items marked as Q(1)-Q(5), Q(5-1) and Q(6)-Q(10) with the relevant standard materials marked as S-1 to S-5 and A-1 to A-4 supplied for the purpose of comparison, from the original document in all aspect and detection of forgery with the necessary scientific aids. According to the PW.8, the person who wrote the blue enclosed writings and signatures stamped and marked S-5 (M.Ext.14) and A-1 to A-4 [M.Ext.13(1) to 13(2), 10 and 12] also wrote the red enclosed writings. Similarly stamped and marked Q-1 (M.Ext.4(2), Q-3 to Q-5, Q-5/1 (M.Ext.4(2) to 4(6), Q-6 (M.Ext.15) and Q-8 to Q-10 (M.Ext.4-1(1), 4-1(2) and M. Ext.16). According to the PW.8, the person who wrote the blue enclosed writings and signatures stamped and marked S-1 to S-3 [M. Ext.17(1), 17(2) and 17(3)] also wrote the red enclosed signatures similarly stamped and marked Q-2 [M.Ext.4(5)] and Q-7 [M.Ext.15(1)].

PW.10 Numal Chandra Das, Executive Engineer, Dhemaji E & D Division deposed that from 12.05.1995 to 05.02.1996 he discharged his duties as the Executive Engineer of the Dhemaji E & D Division and he has no knowledge as to who put signature on M. Ext.4, below the seal and signature of Executive Engineer, dated 10.08.1994, 16.02.1996 and 30.07.1997.

PW.11 Munin Dutta deposed that from 03.10.1997 to 28.08.1998 he was the Executive Engineer, Dhemaji E & D Division but in the M. Ext.4, the M. Ext.4(8), M. Ext.4(9) and M. Ext.4(10) were not his signatures and he also cannot say who put those signatures. This witness further stated that during his tenure as Executive Engineer, there was no any Section Assistant by name Puspa Dutta.

PW.12 Ramkumar Sah Boruah deposed that from 02.09.1998 to 14.10.1998 he was the in-charge Executive Engineer, Dhemaji E & D Division and he also stated that no any Section Assistant by name Puspa Dutta worked in under him. He did not put the signatures i.e. M. Ext.4(11) and M. Ext.4(12) nor he can say who put those signatures.

In the same way, the PW.13 Luhit Chandra Hazarika stated that from 14.10.1998 to 27.01.2000, he discharged the function of Executive Engineer, Dhemaji E & D Division and during his tenure he did not find any Section Assistant by name Puspa Dutta in his establishment. According to this witness, he did not put any signature(s) in the release order (M. Ext.2), in the alleged L.P.C. and in the service book (M. Ext.4) of Puspa Dutta nor he can say who put those signatures.

PW.9 Suren Kalita was the I.O. who after receipt of the ejahar (Ext. 4), initiated the investigation of the Jorhat P.S. Case No.113/99, u/s.468/471 IPC, recorded statement of the witnesses, made seizure of the documents vide M.Ext.1 to M.Ext.9 and arrested accused Puspa Dutta.

On transfer of his predecessor Suren Kalita (the PW.9), PW.14 Paramananda Borah took up the investigation of the case and during investigation he recorded the statement of witnesses as well as seized certain documents through seizure list vide Ext.2 & 3. The service book of accused Smti Puspa Dutta and her specimen signature and the admitted hand writing of Arun Baruah was sent for expert opinion and on receipt of the expert opinion and on completion of investigation, he submitted charge sheet against the accused persons.

In the impugned judgment of the trial Court below, it appears that on the basis of the evidence of PW.1-4 and PW.7 has hold that the accused petitioner No.2 Puspa Dutta joined in the office of the Executive Engineer, E & D Division, Jorhat, showing that she has been transferred from Dhemaji Division. The evidence of PW.7 was accepted to the extent that he has obtained a report from the office of the Chief Engineer that no such transfer order was issued from their end, which indicates that the transfer order produced by accused Puspa Dutta was forged one. Non-examination of the Chief Engineer appears to be not fatal because an official communication has been duly proved.

The witnesses i.e. PWs.10-13 who were the Executive Engineers of Dhemaji E & D Division have led the evidence that said Puspa Dutta was not an employee in their establishment neither any such transfer order was issued or signed on their part nor any release order was issued, which again fortified the case of the prosecution that the documents produced and relied by the accused Puspa Dutta are false and fabricated. Their evidence remains un-rebutted save and except some mere suggestions.

The evidence of PWs.5 & 6 reveals that accused Arun Baruah worked in the office of PWD East Road Division, Jorhat as Sub-Engineer and police seized certain documents containing hand-writing of Arun Baruah and such admitted handwriting was sent for FSL examination to compare with the handwriting in the service book, last pay certificate and transfer order of Smti Puspa Dutta. The Dy. Director of Forensic Science Laboratory (PW.8) has testified that on examination of those documents containing handwriting of accused Arun Baruah is similar to the handwriting in the last pay certificate, service book and joining report of Puspa Dutta which depicts the picture clear enough that he being the husband of Puspa Dutta, prepared those documents. Further the specimen signature of accused Puspa Dutta which was also sent for examination at FSL was found to be tallied in the service book and joining report as per the evidence of PW.8 and the accused petitioner No.2 Puspa Dutta never disputed her signature in the joining report and in the service book. Thus the evidence on record has established beyond any doubt that accused Arun Baruah fabricated/forged the documents pertaining to the service book of his wife Puspa Dutta and she signed on the same. It leaves no any doubt to hold that both the accused persons in connivance forged the documents and used the same illegally.

The learned trial Court as well as the learned Appellate Court has rightly appreciated all the oral and documentary evidence on record and no any illegality or irregularity is found while arriving at the decision.

Relying on the decision in 2009 (5) GLT 843, Satyajit Roy vs. State of Tripura, it has been contended that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. The said contention is maintainable so far as the case where no corroboration at all. The Hon'ble Supreme Court in Sashi Kumar Banerjee vs. Subodh Kumar Banerjee, reported in AIR 1964 SC 529 held that the expert evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.

Now in the present case, the circumstances that the accused Aruan Baruah is the husband of the accused Puspa Dutta, who happens to be posted at the same place and had a criminal antecedent of forging documents, so he was brought under the investigation and his admitted handwritings was collected and his handwriting found to be tallied with the official documents like service book, last pay certificate, etc. of his wife Puspa Dutta. Such a circumstance cannot be brushed aside.

Accordingly the impugned order and judgment passed by the learned trial Court as well as by the learned Appellate Court is hereby upheld. However considering the submission of learned counsel for the petitioners that the matter pertains to long back of 1999 and both the accused persons have already gone through much mental agony and sufferance in the legal battle and also have lost their jobs in the meantime, while maintaining the conviction, the accused petitioners are sentenced to the period already undergone by them during investigation and also to pay a fine of Rs.10,000/- (Rupees ten thousands) each under Section 468/471 IPC [totaling Rs.40,000/-(Rupees forty thousands)], in default of R.I. for six months. They are directed to pay the fine before the trial Court within two months from today.

The revision stands allowed to the extent as indicated above.

Return the LCRs along with a copy of this judgment immediately.