Bhanwar Lal vs State of Rajasthan

D.L. Mehta, J.—This revision petition has been preferred against the judgment dated 10th April, 1982 passed by the learned Sessions Judge, Sikar, in Criminal Appeal No. 78 of 1980, upholding the conviction and sentence passed by Shri Jaspal Singh, Chief Judicial Magistrate, Sikar dated 8-9-1982 in Criminal Case No. 43 of 1978 as under:

u/s 420, IPC 1-1/2 years R.I. and a fine of Rs. 5,00/-; u/s 467, IPC 2 years R.I. and a fine of Rs. 1,000/-; u/s 468, IPC 1-1/2 years R.I. and a fine of Rs. 1,500/-.

In default of payment of fine on each count the accused was directed to undergo further R.I. for 3 months. All the substantive sentences were ordered to run concurrently.

Prosecution story unfolded during the trial is one that Bholu Ram was Jagirdar. He died sometime in the year 1965. It is further alleged that Hari Prasad son of Bholu Ram prayed to the authorities for the payment of Jagir Bonds amounting to Rs. 2,850/-.

Hari Prasad made in inquiry and he was informed that the payment of the Jagir Bonds has already been made. Enquiry was conducted by the district authorities and the First Information Report, Ex. P 2 was filed by the Additional Collector (Jagir) on 30th June, 1973. In the First Information Report it has been mentioned that the bonds have been obtained on 30th, April, 1970. Learned District Judge in Para-11 has mentioned that Special Power of Attorney was executed on 8th April, 1970. Advocate Noman Ahmed has identified Bhola Ram. He has also signed on the Power of Attorney mentioning as under:

"Identified by me". On the basis of the identification Bhola Ram, the Power of Attorney was verified by the Sub-Divisional Magistrate, Sikar. Advocate Noman Ahmed, has appeared in the witness box. He has stated on oath in the court that he was now knowing Bhola Ram and Bhanwar Lal earlier. He has identified Bhanwar Lal and Bhola Ram on the basis of the statement given by Megh Singh before him. This fact is not at all inconsistent with the endorsement made by Noman Ahmed, Advocate on Ex. P. 3. On the special power of Attorney this fact has been mentioned that he is identifying the person on his own knowledge. In fact, Advocate Noman Ahmed has acted in a way which is unwarranted and has lowered the image of the noble profession of Advocate. In fact, the real guilt lies with Noman Ahmed. Prosecution was very liberal in not prosecuting Noman Ahmed who is the real culprit in this case. I might have directed the prosecution of Noman Ahmed in this case, but taking note of the fact that in the year 1978, Advocate Noman Ahmed 58 years of old, more than 9 years have elapsed and he must be running now in 67 or 68 years. Taking note of the old age of Advocate Noman Ahmed I consider it proper that instead of directing the prosecution of Noman Ahmed this matter may be referred to the Bar Council of Rajasthan with the request that proper action should be taken against the Advocate who identified the person in such manner which may result in the deception and forgery of the documents.

PW. 6, Laxmi Chand, is the Munshi of the Advocate. He has also stated in the Court that Megh Singh, the other accused came with Ex. P 3 and two persons. He does not support the case of the prosecution. However, he says that he was not knowing the accused Bhanwar Lal. There is a charge against the accused Bhanwar Lal Ex. P. 3 the Special Power of Attorney was executed by him and he has signed as Bhola Ram.

Mr. Agrawal appearing on behalf of the present petitioner submitted that none of the witnesses have stated that the present petitioner Bhanwar Lal has signed Ex. P 3. Mr. L.K. Sharma, on behalf of the State submits that the Tehsildar, PW 11 has stated that Ex P 3 was submitted before him. He could not show any evidence to show that the present petitioner Bhanwar Lal has signed Ex. P 3, Special Power of Attorney. Mere saying that Bhanwar Lal has signed, is not sufficient unless it is proved by some evidence that the present accused petitioner Bhanwar Lal has signed. There may be number of Bhanwar Lal and any one might have signed as Bhola Ram. For this reason I am of the view that the prosecution has failed to prove that the present petitioner Bhanwar Lal has signed, as Bhola Ram on Ex. P 3. On this point there is no direct evidence. Even the Tehsildar before whom Ex. P 3 was submitted and the Sabir Hussain, Cashier, who has issued the bonds has not stated that the present accused is the same man who has produced Ex. P 3 before them.

Section 73 of the Evidence Act enables the Court to compare the signature with the admitted signatures. It is the duty of the court to compare the signatures with the help of the Text Books and other material available and should try to find out whether the signatures are of the same person or not. Mr. Agrawal has cited before me the case of State (Delhi Administration) v. Pali Ram AIR 1999 SC 14, in which is has been held as under:

A Court holding as inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session , does not exceed its powers u/s 73 if, in the interests of justice, it directs an accused person appearing before it to give his sample writing to enabling the same to be compared by a hand-writing expert, chosen or approved by the Court irrespective of whether his same was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused''s) admitted writing, and to reach its own conclusion with the assistance of the expert Pali Ram Vs. State, Del. reversed.

A sample writing taken by the Court under the second paragraph of Section 73, is in subsance and reality, the same thing as ''admitted writing'' within the purview of the first paragraph of Section 73, also. The first paragraph of the Section provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a hand-writing expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two paragraphs of the Section are not mutually exclusive. They are complementary to each other. Section 73, is, therefore, to be read as a whole in the light of Section 45.

In addition to Section 73, there are two other provisions resting on the same principle, namely Section 155, Evidence Act and Section 540, Cr.PC 1898, which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bonafide of the opinion that his examination is necessary for a just decision of the case.

The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand-writing expert, the Judge should as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a hand-writing which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and asistance of an expert.

It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials together with reasons which induce him to come to the conclusion, so that the court, although not as expert, may form its own judgment by its own observation of these materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking such issues are for the Court or jury to determine. The handwriting expert''s function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence".

This case has been considered by the Supreme Court in the case of Murarilal v. State of M.P. in which it has been held as under:

Further, by comparing the writing itself, the court would not assume to itself the role of an expert, Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the court. Where there is none, the court will have to a seek guidance from some authoritative text book and the court''s own experience and knowledge. But discharge it must, its plain duty with or without expert, with or without other evidence.

Criminal Law cannot be applied like a civil law and the mode of application differs from case to case. There is no bar to the Judge using his own eyes to compare the disputed writing with the admitted writing even without the aid of the evidence of any handwriting expert. Section 73 of the Evidence Act is not only enabling Section but sometimes it casts duty on the Court to compare the handwriting and to use its knowledge and experience. At the same time, it is necessary for a Judge while exercising the powers u/s 73 to give some reasons based on text books and knowledge to show whether the disputed signatures are of the same person with whose admitted signatures the comparison is going to be made. In the instant case no reason has been assigned by the court below. Sheet anchor for the purpose of conviction may be the comparison made by the Judge himself in some cases, but it cannot be said that it should be the sheet anhor in all cases. Judge must give reasons when he is accepting or rejecting the admitted signatures with the disputed signatures. In the instant case, no reasoning has been given by the Presiding Officer. One thing is very clear that the accused has a right to explain the discrepancies in the matter of comparison, particularly when powers are exercised u/s 73 of the Evidence Act. For this reason I hold that the court below was not justified in convicting the accused Bhanwar Lal for the commission of forgery as far as Ex.P. 3 is concerned.

Ex. P. 5 application was moved by Bhanwar Lal before the Tehsildar with a prayer that the bonds may be delivered to him. Vide Ex.P 8 the bonds were delivered and agreement Ex.P. 11 was also executed. There is ample evidence on record that the present petitioner moved the application, obtained the bonds and executed agreement. There is no reasons to disblieve the evidence of the prosecution on this point. On Ex.P. 5, 8 and 11 Bhanwar Lal has signed as Bhanwar Lal. He has not represented before the authorities that he is Bhola Ram. It may be a case of using a forged document for getting the bonds. I think that the accused has rightly been convicted by the court below.

In the instant case the main accused is Megh Singh, who is the master mind behind the whole case. Bhanwar Lal has been made an instrument. Megh Singh was not arrested at that time. It is not known even to the Public Prosecutor whether Megh Singh has been arrested even now or not. He is not in a position to say anything about Megh Singh. Mr. Agrawal produced before me the statement of Mool Chand to whom the bonds were sold by Megh Singh. This statement was recorded by the prosecution u/s 161 Cr.PC. Mr. Agrawal wants to submit that from the perusal of the statement it would be clear that the innocent petitioner was trapped by Megh Singh even as per prosecution case. Statement recorded u/s 161 Cr.PC cannot be read in evidence. Court has ample power to take the aid of even Police Diary to satisfy the conscience of the Court; though it cannot be used in evidence.

In the instant case, Megh Singh has been shown as surety in the matter of receipt of the bonds. Numbers of other points have been raised by Mr. Agrawal including the framing of the charge, vagueness of the questions put u/s 313, Criminal Procedure Code and omission to put some questions to the accused.

Taking note of the fact that Megh Singh has not been arrested so far and Noman Ahmed, Advocate has not been prosecuted, I consider it proper that the case of the present petitioner should be dealt with leniently as the real culprits have not faced the trial. Conviction of accused Bhanwar Lal is mantained. Accused-petitioner will have to pay the fine imposed on him by the court below if not paid so far. The amount of Rs. 2,850/- may be paid to Kari Prasad out of the fine as directed by the Court below. As far as the question of sending the accused back to jail is concerned, I consider it proper that the sentence should be reduced to the sentence already undergone by the accused-petitioner.

In the result, the revision petition is partly accepted. The sentence of fine is maintained. The sentence of imprisonment is reduced to the sentence already undergone by the accused petitioner.

A copy of this order may be sent to the President, Bar Council of Rajasthan for taking necessary action against Noman Ahmed, Advocate and also a copy of the same order may be sent to the Superintendent of Police, Sikar for taking necessary action against Shri Megh Singh if not taken so far.