S.K. Gangele, J.@mdashThese two appeals have been filed against the common judgment of conviction dt. 11th September 2012 passed in Special Case No. 2/2010. Appellant Hemant Kumar in Cr.A. No. 713/12 was posted as Sub Divisional Officer at Rajghat Canal and Sindhu Regulator Sub Division No. 1, Orchha, Jhansi vide order dt. 22.2.2001. He joined on the aforesaid post on 28.2.2001. He was transferred vide order dt. 31.7.2001 as Sub Divisional Officer, Dam Safety, Sub Division No. 4, Gwalior. V.K. Vyas, appellant in Cr.A. No. 718/2012 was also posted during the aforesaid period as Sub Engineer.
2. A complaint before the Lokayukt was made on 21.2.2001 that there were irregularities committed in construction of a canal. On behalf of Lokayukt two Executive Engineers and Assistant Engineer conducted the spot inspection. Thereafter, an FIR was lodged by the Lokayukt at Police Station Lokayukt Bhopal and on the basis of the aforesaid, an offence vide Crime No. 19/2008 under Sections 193, 196, 199, 201, 465, 467, 471 of IPC and Sections 15, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) was registered against both the appellants. Thereafter, Lokayukt establishment filed charge sheet before the Special Judge, Prevention of Corruption, Datia.
3. After perusal of the charge sheet and documents on record, the then Special Judge Smt. Meena Singh vide order dt. 2.2.2011 framed charges against the appellants for commission of offence under Sections 193 /34, 196 /34, 201 /34, 465 /34, 467 /34 and Section 13(1)(ga) and 13(2)(15) of the PC Act.
4. The appellants abjured their guilt and faced the trial. Before the trial court, the prosecution examined 18 witnesses and produced 29 documents. Appellant Hemant Khare examined himself as defence witness and produced 20 documents.
5. After recording the statements, the appellants were examined by the court in accordance with the provisions of Section 313 of Cr.P.C. Then prosecution filed an application that the appellants were posted as public servant from 21.12.2001 to 15.1.2002 and entries in the measurement book were recorded on 6.6.2001 by the appellant V.K. Vyas and verified by appellant Hemant Khare, hence, the dates in the original charge framed by the Presiding Judge vide order dt. 2.2.2011 be changed because in the aforesaid order, the Presiding Judge mentioned that the appellants committed the offence when they were posted at Rajghat Project Jhansi from 21.12.2001 to 15.1.2002, however the date be modified and it be recorded as ''before 6.6.2001''. Learned trial Judge framed another charge on 9.7.2012 and mentioned the fact that the appellants committed offence when they were posted prior to 6.6.2001 to 15.1.2002 at Rajghat Project Jhansi as public servant.
6. The allegation against the appellants is that when they were posted at Rajghat Project Jhansi, appellant V.K. Vyas in the measurement book No. 164 at pages 19 and 20 recorded the measurement of 136.65 cum. of Datia canal R.D. 34800 to 36645, however, subsequently, the entry was changed and the measurement was mentioned as 45.55 cum. The entry was recorded by appellant V.K. Vyas, Sub Engineer and it was verified by appellant Hemant Khare, who was posted at the relevant time as Sub Divisional Officer. The aforesaid entry in the abstract measurement book was changed and some pages were inserted in the measurement book and in the abstract measurement book some overwriting was made. It was done to avoid the result of investigation pending before Lokayukt. It is also a fact that no extra amount was paid to the contractor neither any loss was caused to the government, it is alleged that that if measurement was not changed, an excess amount of Rs. 50,145/- would have been paid to the contractor and a loss would have been caused to the govt.
7. The trial Judge after appreciation of evidence held the appellants guilty for the offence and awarded punishment as mentioned in the impugned judgment.
8. Shri Anil Khare, learned senior counsel for the appellant Hemant Khare has contended that the judgment passed by the trial court is against the law. The prosecution has failed to prove the offence beyond reasonable doubt against the appellant. The case is based on circumstantial evidence but there is no evidence to prove the fact that the appellants had made overwriting in the abstract measurement book or the appellant had inserted some pages in the measurement book. Learned senior counsel further submitted that the prosecution has failed to prove that on the photo copies of Ex. P/2 and P/3 there are signatures of the appellant and the appellant has made entries Ex. P/2 to P/5. He further submitted that the learned trial court has committed an error of law in drawing inference against the appellant and shifting burden of proof on the appellant against the well settled principle of law that the burden of proof is on the prosecution.
9. Learned senior counsel further submitted that no question or questions were asked by the Presiding Judge u/s 313 Cr.P.C. statement of accused from the appellant that whether he signed Ex. P/2 and P/3 or he had made any entry in Ex. P/2, P/3, P/4 and P/5. He further submitted that the Presiding Judge has changed the charge after completing the evidence, hence, the appellant has not been given proper opportunity to defend himself. He further submitted that the charge framed against the appellant was also defective, hence, a prejudice has been caused to the appellant and the trial Judge has further committed an error of law in drawing inference against the appellant on the basis of mere suspicion, the offence could not be said to be proved against the appellant beyond reasonable doubt and the prosecution has failed to complete the chain which is to be proved by the prosecution because the case is based on circumstantial evidence. Learned senior counsel further submitted that the trial judge has committed an error in comparing the signatures of the appellant himself without any evidence to this effect. In support of his contentions, learned senior counsel relied on the judgments in the case of
10. Learned counsel for the appellant-V.K. Vyas in Cr.A. No. 718/2012 adopted the arguments advanced by the learned senior counsel in Cr.A. No. 713/2012.
11. Contrary to this, learned counsel for the Lokayukt has submitted that the appellant Hemant Khare was posted at the relevant time as Sub Divisional Officer and some entries were made in the abstract measurement book and also in the measurement book by appellant V.K. Vyas, Sub Engineer and the appellant Hemant Khare verified the said entries. Subsequently, new pages were inserted in the measurement book. At the time of initial stage of enquiry, the photo copies of the measurement books had been sent to the Lokayukt and these are the correct copies of the measurement books but subsequently in order to escape from the offence the appellants committed conspiracy and forgery and placed forged pages in the measurement book and made overwriting in abstract measurement book. Trial Judge has considered all the aspects in detail and found the offence against the appellants beyond reasonable doubt. Hence, the judgment of conviction and sentence passed by the trial Judge is in accordance with law.
12. R.D. Gupta (P.W. 1) deposed that on 12.9.2001 he was posted as Superintending Engineer, Rajghat Circle, Jhansi and on the aforesaid date, he had sent some information to P.K. Choubey, office of Lokayukt Bhopal. The information was sent vide letter (Ex. P/1). Alongwith the letter, photo copies of Ex. P/2, P/3, P/4 and P/5 were also sent. He admitted in his cross-examination that Hemant Khare was posted from Feb. 2001 to 16.8.2001 at Orchha. He further deposed that he had sent information after collecting the same from Sub Divisional Officer and Executive Engineer and the copies of Ex. P/2 to P/5 had been received by him from the concerned officer. He also deposed that he did not verify Ex. P/2 to P/5 from original. Vide Annexure P-1, following information was sent: photo copies of agreement with Shankar Narayan Construction Company RD 34800 to 34645, photo copies of measurement books in regard to excavation and lining of RD 34800 to 36645 of Datia Canal.
13. S.V. Pagnis (P.W. 8), who was posted as Executive Engineer at the relevant time was declared hostile. He deposed that he was posted as Executive Engineer, Division Orchha from 2001 to 2004. He admitted that letter dt. 15.1.2002 (Ex. P/16) was issued from his office. He further admitted that he had not seen original of photo copy of Ex. P/3, which was certified by Hariom Gupta.
14. Hariom Gupta (P.W. 17) in his evidence deposed that he was posted from 12.8.2000 to 16.9.2002 as Sub Divisional Officer Rajghat Canal Regulator, Sub Division Jhansi and he had taken additional charge from Hemant Khare of Rajghat Canal and Regulator Sub Division No. 1 on 16.8.2001. The additional charge was with him from 16.8.2001 to 9.9.2001. During handing over of charge Hemant Khare had handed over him 20-21 measurement books. Ex. P/2 and P/3 are the photo copies certified by him, he had signed over Ex. P/2 and P/3. He further deposed that these are not the photo copies of original M.B. No. 164 of Ex. P/10 page 19-20. Ex. P/9 is the photo copy of page 92-93. It was sent after certifying to Superintending Engineer Rajghat Canal Regulator and the photo copies Ex. P/4 and P/5 were attested by him. He further admitted that there is some overwriting in Ex. P/9 but who had done this, he had no information. This witness further deposed that on 9.9.2001 he had handed over additional charge, which he had taken from appellant Hemant Khare, to S.S. Bhadoria and also handed over measurement books to him. In his cross-examination, he deposed that appellant V.K. Vyas made the entries in the measurement book No. 164 on 6.6.2001. He further deposed that after verifying the movement register, it could be said that M.B. No. 164 was in whose charge. In para 10 of his cross examination, he deposed that the clerk of office had gone to take out the photo copies of Ex. P/2 to P/5 and he had marked his seal of Sub Divisional Officer on Ex. P/2 to Ex. P/5 and thereafter he had signed the photo copies after seeing the originals. He further deposed that he had no information that who had made "E to E" note on photo copy of Ex. P/2. He further deposed that he had received M.B. No. 164 in charge. He also admitted the fact that when he had verified the photo copies of Ex. P/2 to P/5, on that date Ex. P/9 and P/10 and M.B. was not in possession of the appellants.
15. A.K. Chaturvedi (P.W. 3) was posted as Assistant Grade-I on 19.7.2007 in the office of Superintending Engineer Rajghat Canal Circle Jhansi. He deposed that he had sent letter Ex. P/11 and M.B. Nos. 82 and 164 (Ex. P/9 and P/10) and also signed on behalf of S.E.
16. Mahesh Kumar Gupta (P.W. 4) was posted as Sub Engineer in the office of Water Resources Department, Division Orchha from 3.2.1993 to 13.1.2006. He deposed that M.B. No. 82 was issued on 24.3.1999. In this measurement book, abstract of RD No. 34800 to 39960 of Datia Canal was prepared. He further deposed that Hemant Khare was posted as SDO and he was working under him and the specification and particulars in M.B. No. 82, pages 88 to 96 (Ex. P/9) was written by him, however, measurements had not been written by him. Similarly, measurements of M.B. No. 164 (Page 92) at page 20 were not recorded by him and the measurements at ''A to A'' part of pages from 92 to 95 were mentioned by K.N. Gupta, Sub Engineer and he signed the abstract. He further deposed that he did not make overwriting at page 92 of M.B. No. 164 and who had made the same he had no information. He further deposed that register of abstract of M.B. No. 82 (Ex. P/9) was handed over by him to Hemant Khare on 10.5.2001. On pages 96, 97 to 100 of M.B. No. 82 the writing is of D.R. Sukwani, Sub Engineer and Hemant Khare had signed the same. In M.B. No. 91 (Ex. P/12) at page 43, quantity of 141.10 was not recorded by him and the writing on page 43 was not his writing. He further deposed in his cross examination that the entries in the measurement book were made by the Sub Engineer and the entries on pages 88 to 96 of M.B. (Ex. P/9) are of his handwriting and the Ex. P/9 is an abstract M.B. and not an measurement book. He further admitted that in Ex. P/9 at page 20 measurement recorded is 45.55 cum. He further deposed that he does not know who had made overwriting on Ex. P/9. He also admitted that in master M.B. No. 150 at page 18 the total quantity of 745.93 of M.B. No. 164 page 63 was recorded by me, it is Ex. D/1 and in this measurement book, the measurement of 45.55 cum. of M.B. No. 164 page 63 is also included.
17. K.N. Gupta (P.W. 5) was posed as Sub Engineer from 1997 to 2004 in the office of SDO Rajghat Canal Regulator Division Jhansi. He deposed that he did not make any note of R.D. No. 35763 to 36982 at page 19 of M.B. No. 164 (Ex. P/10). Writing of ''A to A'' from pages 17 to 26 on Ex. P/10 is of V.K. Vyas and after this writing is under his handwriting. He further submitted that no page was changed in Ex. P/10. The register of abstract M.B. No. 82 (Ex. P/9) was issued in the name of M.K. Gupta in which abstracts were recorded by M.K. Gupta and unit rate and measurement entries were made by me. He further deposed that who had made overwriting in register at page 92 of Ex. P/9 he did not know. He further deposed that from pages 89 to 96 of Ex. P/9 he prepared the abstract and signed at B to B and thereafter D.R. Sukwani cancelled the pages from page 97. In his cross examination he deposed that Hemant Khare was posted as SDO from Feb. 2001 to 16.8.2001. On 16.8.2001 he was relieved for Gwalior. He further submitted that some time the M.B. might also be in possession of the clerk and movement of M.B. is recorded in the movement register and the measurement of 45.55 cum. is recorded at page 20 of Ex. P/10 (M.B. No. 164) and the same entry was included at the time of last payment of 745.93 and there may be some overwriting due to mistake of writer and the exact measurement was 45.55 cum. No loss was caused to the government. He further admitted that there is no change in pages 19-20 of M.B. No. 164. During the enquiry, the documents were handed over by the officer and Hemant Khare did not hand over any document.
18. Rakesh Kumar Khandelwal (P.W. 6) was posted as Assistant Engineer from the year 2001 to 2008-09 at the office of Lokayukt. He deposed that he alongwith R.S. Jhanane, K.P. Choubey conducted the enquiry in regard to complaint and also inspected RD 34800 mtr. to 36645 mtr. of Datia Canal. He further deposed that on inspection, it was found that the depth of filter at 35100 mtr. was 31 cm. and at 35400 mtr. was 19 cm. and at 35900 mtr. was 32 cm. and the photo copy of the measurement books was sent by the S.E. on 12.2.2001. Thereafter, subsequently on 15.1.2002 the documents were sent by the E.E. and it was found that the photo copies sent by Sub Divisional Engineer and E.E. subsequently were different in regard to M.B. No. 164 (pages 19-20). Then original measurement books were asked for and the original M.Bs. were sent on 10.9.2004 and 18.9.2004 of M.B. No. 82 (Ex. P/9) and 164 (Ex. P/10). In Ex. P/2, which is a photo copy made available by the S.E., size of drain mentioned as 60 cm., however, in the photo copy made available by E.E. it is mentioned as 40 cm. x 30 cm. and the measurement mentioned is 85.26 cum. In Ex. P/10 measurement is mentioned as 105.03 cum. and in photo copy made available by S.E. (Ex. P/10), it is mentioned as 45.55 cum. There is some overwriting in Ex. P/9 of M.B. No. 82 page 93 the measurement is 45.55 cum. He further admitted that originals of Ex. P/2, P/3, P/4 and P/5 were not traced out and neither there was any enquiry made in this regard. On the basis of the photo copies, it was held by the Lokayukt that documents were changed. He further admitted that during enquiry he did not examine Hemant Khare neither he had called originals from S.E., photo copies of which were sent earlier. He further deposed that he did not summon Jagdish Tiwari who had submitted the complaint and there is no overwriting at page 20 of M.B. No. 164 and there is overwriting in Ex. P/9.
19. Dinesh Kumar Sharma (P.W. 7) recorded the report at the police station. Evidence of S.V. Pagnis (P.W. 8) has already been discussed. Rajendra Jhanane (P.W. 9) was posted as E.E. in Technical Branch of Lokayukt Bhopal from 1997 to Sept. 2003. He deposed that he had made enquiry alongwith Rakesh Kumar Khandelwal. He further deposed that the concrete lining of RD 35100 to 36400 mtr. and 36900 mtr. was correct, however, there were some discrepancies in between Ex. P/2, P/3, P/4 and P/5 received from S.E. and certain pages of photo copies of M.B. No. 164 and M.B. No. 82 received from E.E. on 15.1.2002.
20. S.S. Ahirwar (P.W. 10) deposed that payment to the contractor was made of 45.55 cum. in final bill and not of 136.65 cum. The measurement was recorded at page 20 of measurement book No. 164. He further deposed that he did not say that who had made overwriting in the measurement book, however, in the abstract measurement book 45.55 cum. has been recorded. Payment was made in accordance with total measurement of 745.93 cum. to the contractor. He further admitted that no recovery was made from the contractor in regard to payment made by Hemant Khare.
21. S.S. Bhadoria (P.W. 11) was posted as Assistant Engineer on 9.9.2001 of Rajghat Canal and Regulator Sub Division No. 1 Jhansi. He had additional charge of SDO, which was taken by him from Hariom Gupta and after six months he had handed over the charge to Ram Avtar Sharma, Assistant Engineer. He deposed that at the time of taking additional charge, he had received 20 M.Bs. in which M.B. No. 164 and abstract M.B. No. 82 (Ex. P/9 and P/10) was received. He had forwarded photo copy of M.B. No. 164 Pages 19 and 20, which is Ex. P/10. He further said that there was no change in page No. 19-20 of M.B. No. 164, however, there is some entry in red ink at page 19. Who had made this entry I could not say and there was no overwriting, copy of which was sent to him neither there was over writing at page 93 of M.B. No. 82. He further said that who had made overwriting he did not know.
22. Evidence of R.K. Jain (P.W. 12) is not material. Evidence of D.B. Shrivastav (P.W. 13) is also not material because he is a witness of giving sanction to prosecute the appellants. Similarly, evidence of Devendra Kumar Gaur (P.W. 14) and P.S. Shakhwar (P.W. 15) is also not material. Kaptan Singh Nagar (P.W. 16) is a retired Inspector. He deposed that he had received the complaint forwarded by Jagdish Tiwari in the office of Lokayukt and recorded the report of Crime No. 0/08. (Ex. P/14).
23. R.M. Pachori (P.W. 18), who was the Investigating Officer in his evidence, has deposed that V.K. Vyas made the entries in the measurement book No. 164 on 6.6.2001 and Hemant Khare was transferred from Orchha to Gwalior on 16.8.2001. He also deposed that the forgery and change of pages in M.B. No. 164 had been done between 21.12.2001 to 15.1.2002 and there was a movement register in the office of Executive Engineer and Sub Divisional Engineer in regard to verifying the fact that from which time to which time the measurement book was in possession of a particular officer. He did not seize any movement register in regard to M.B. Nos. 164, 91 and 82 neither he had seen the movement register. The overwriting in abstract measurement book No. 82 (Ex. P/9) at page 93 had been done between 15.1.2002 to 21.9.2004. He further admitted the fact that he had found during investigation that upto the period 16.8.2001 or 1.9.2001 no overwriting had been done at page 19-20 of M.B. No. 164 and abstract measurement book No. 82 at page 93. He further admitted in para 12 of his cross examination that he had found that overwriting on page 93 of M.B. No. 82 (Ex. P/9) was made between 15.1.2012 to 21.9.2004. He further admitted that during the period of 16.8.2001 to 9.9.2001 there was no change and overwriting in page Nos. 19 and 20 of M.B. No. 164 and page 93 of abstract M.B. No. 92. He further deposed that payment of 30th running bill was made on 16.5.2001 by the Executive Engineer and payment of 47th running bill was made on 3.2.2004 by Executive Engineer. He further admitted that no excess payment was made to the contractor in the final bill and the amount of 45.55 cum. was paid to the contractor.
24. Now the question for consideration before us is that whether the prosecution has proved Ex. P/2 to P/5 in accordance with law and whether the handwriting on Ex. P/2 to P/5 is of appellant V.K. Vyas and whether the signatures on Ex. P/2 and P/3 are of appellant Hemant Khare.
25. R.D. Gupta (P.W. 1), S.V. Pagnis (P.W. 8) and Hariom Gupta (P.W. 17) are the important witnesses in this regard. R.D. Gupta (P.W. 1) has clearly deposed that he had received the photo copies from the office of Executive Engineer and Sub Divisional Officer. He also deposed that he did not examine the original measurement books at the time of sending the photo copies of Ex. P/2, P/3, P/4 and P/5. S.V. Pagnis (P.W. 8), who was posted as Executive Engineer at the relevant time, also did not support the prosecution. He was declared hostile. He simply deposed that from him some record was called and he had sent the same after calling from Sub Divisional Officer.
26. Evidence of Hariom Gupta (P.W. 17) is important and in our opinion he is the most important witness. He admitted the fact that he had taken additional charge from appellant Hemant Khare on 16.8.2001 and handed over the same to S.S. Bhadoria (P.W. 11) on 9.9.2001. He also admitted the fact that he had taken charge from Mr. Hariom Gupta and he also received 20 M.Bs. In charge including M.B. No. 164 and abstract M.B. No. 82 (Ex. P/9 and P/10). He also admitted that subsequently he had given the photo copy of M.B. No. 164 (Pages 19-20) to R.D. Gupta, S.E. and certified them, which is Ex. P/10. It means that the change in the measurement book had occurred when it was under the charge of S.S. Bhadoria because when it was under the charge of Hariom Gupta (P.W. 17) there was no change. He further deposed that when he received the charge of M.B. No. 82, there was no overwriting at page 93 at that time and who had made this overwriting, he could not say.
27. Hariom Gupta (P.W. 17) did not depose that the signatures on Ex. P/2 and P/3 which are the photo copies, are of appellant Hemant Khare neither he deposed that the handwriting of photo copies of Ex. P/4 and P/5 is of appellant V.K. Vyas or Hemant Khare. No witness of the prosecution deposed that there are signatures on Ex. P/2 and P/3 of appellant Khare and V.K. Vyas. These are the photo copies of measurement books certified by Hariom Gupta (P.W. 17). There is no evidence to the effect that Hariom Gupta (P.W. 17) was authorised to certify the copies of the measurement books.
28. Admittedly Ex. P/2 to P/5 are not the originals. They are photo copies of the originals as claimed by the prosecution. These documents can be classified as secondary evidence. In accordance with Section 65(c) of the Indian Evidence Act 1872 (hereinafter referred to ''Evidence Act''), when the original has been destroyed or lost, the secondary evidence may be given of the existence of condition or contents of a document. Section 67 of the Evidence Act prescribes as under:-
67. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting.
29. In accordance with the aforesaid section, it was on the prosecution to prove the fact that signatures or handwriting on Ex. P/2 to P/5 were of the appellants.
30. Hon''ble Supreme Court in the case of
Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and, for proving such a handwriting under Sections 45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law.
31. The prosecution failed to comply the provisions of Section 67 of the Evidence Act. The trial Judge had taken recourse of Section 73 of the Evidence Act and compared the signatures of appellant Hemant Khare on Ex. P/2 and P/3 and observed that the signatures are of the appellant Hemant Khare. The Trial Judge did not ask any question from the witnesses of the prosecution, even to Hariom Gupta (P.W. 17) or other witnesses, who had worked under Hemant Khare appellant that the signatures on the photo copies of Ex. P/2 and P/3 are of appellants Hemant Khare and V.K. Vyas. It is a fact that Ex. P/2 to P/5 are the photo copies and signatures are also in the shape of photo copies. For the aforesaid purpose, he compared the signatures of appellants Hemant Khare and V.K. Vyas on measurement books (Ex. P/10, P/10-A and P/10-B).
32. Hon''ble Supreme Court in
The judge should as a matter of prudence and caution, hesitate to base his finding solely on the comparison made by him; that the prudent course would be to obtain opinion or assistance of an expert.
Hon''ble Supreme Court in this in para case in 32 has prescribed the procedure which could be adopted by the trial Judge:-
32. Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seized of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words "for the purpose of enabling the Court to compare" do not exclude the use of such ''admitted'' or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writing and arrive at a proper conclusion.
33. The aforesaid observation of the Supreme Court has further been followed by the Hon''ble Supreme Court in the case of
Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decisions to the ultimately rendered.
34. Privy Council in
It is unsatisfactory and dangerous to stake a decision, in a case where there is a direct conflict of testimony between parties as to general character of a signature, on the correct determination of the genuineness of the signature by mere comparison with the admitted signatures, especially without the aid in evidence of microscopic enlargement or any expert advice.
35. Full Bench of Madhya Bharat High Court in Major Barker Vs. Mrs. Barker reported in 1995 MB 103 has held as under in regard to power of the court to compare the handwriting without help of expert:-
Although it is permissible for a Court to compare the handwriting it is generally recognised to be hazardous test and should not be resorted to except in clearest cases without the aid of experts. It is held in -
36. Same opinion has been expressed by Gujarat High Court in the case of
Under S. 73 of the Evidence Act, the Court is entitled to compare disputed and admitted signature and handwriting for coming to a conclusion but the rule of prudence and caution requires that in the first place expert''s opinion should be obtained for assistance and if such opinion is not available then the Judge presiding over the Court must disclose in the judgment his knowledge in the subject of comparison of handwriting or should mention that he has taken aid from some authoritative text book. The Court should also mention whether the result of its comparison finds support from some evidence adduced by the parties may be in the shape of oral or documentary evidence or direct evidence adduced by the parties may be in the shape of oral or documentary evidence or direct evidence. Mere statement in the judgment that on comparison the disputed and admitted signature are found to be of the same person is not enough and it cannot be said to be sound finding based on cogent and scientific reasons and data.
37. Hon''ble Supreme Court in
16. We are afraid that we cannot concur with the views either of the trial court or of the High Court in the above regard. When the trial court chose to rely on the report of the handwriting expert (Ext. PR), it ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross-examine the said expert. There is nothing on record to show that the appellant and the other respondents had admitted to the report of the handwriting expert.
17. In our view, the trial court ought to have allowed the appellant an opportunity to cross-examine the expert and both the trial court and the High Court erred in denying him such opportunity and shifting the onus on the accused to disprove Ext. PR which had not been formally proved by the prosecution. The decision cited on behalf of the appellant regarding reliance on the opinion of an expert who had not been examined as a witness however, includes an Assistant Director of the State Forensic Science Laboratory in clause (e) of sub-section (4) of Section 293 CrPC.
38. Another point which has been considered by the trial Judge that u/s 79 of the Evidence Act, a presumption shall arise in regard to genuineness of Ex. P/2 to P/5. The aforesaid Section is as under:-
79. The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorised thereto by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.
39. The Section itself provides that for the presumption the court has to see that the document has to be certified by an officer of the State Government, who was duly authorised thereto. The prosecution did not produce any evidence and did not ask any question to the effect that P.W. 17 was authorised to certify the documents Ex. P/2 to P/5.
40. This Court in Klaushalya Bai Vs. Radha reported in AIR 2005 NOC 207 has held that a true copy of Khasra panchsheel issued by the Patwari under his signature was not a certified copy of a public document, hence the presumption of the genuineness could not be drawn u/s 79 of Evidence Act. Even otherwise also signatures and handwriting on the documents had to be proved by the prosecution, hence, in our opinion, the documents Ex. P/2 to P/5 are inadmissible in evidence. It could not be said that the originals of these documents were executed by the appellants.
41. The trial Judge has also not framed any question u/s 313 of Cr.P.C. and made a suggestion to the appellants that they had made signatures over Ex. P/2 and P/3 and the documents are in the handwriting of V.K. Vyas.
42. Hon''ble Supreme Court in the case of
22. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the court to examine the accused and seek his explanation on incriminating material that has surfaced against him.
22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination u/s 313 CrPC cannot be used against him and have to be excluded from consideration.
43. Three-Judge-Bench of Hon''ble Supreme Court in
142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement u/s 313 of the criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of
The fact that the appellant was said to be absconding not having been put to him u/s 342, Criminal Procedure Code, could not be used against him.
143. To the same effect is another decision of this Court in
In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement u/s 342, the prosecution cannot be permitted to reply on this statement in order to convict the appellant.
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination u/s 313 of the Criminal Procedure Code have to be completely excluded from consideration.
44. From the aforesaid judgments of the Hon''ble Supreme Court it is clear that the facts which were not put to the appellants in their cross examination u/s 313 of Cr.P.C. can not be used against them and have to be excluded from consideration.
45. The next question for consideration before us is that whether a presumption can be drawn against the appellants to the effect that they had changed two pages No. 19 and 20 of the measurement book No. 164 (Ex. P/10), photo copies of which were sent subsequently by the E.E. and also made overwriting in page No. 93 of M.B. No. 80 (Ex. P/9).
46. In the evidence no witness of the prosecution has said that the interpolation or overwriting in Ex. P/9 were made by the appellants. It is also a fact that those M.Bs. were not recovered from the possession of the appellants at the time when the photo copies were sent by the E.E. on 15.1.2002. They were in possession of S.S. Bhadoria (P.W. 11.), who admitted the same. The appellant Hemant Khare handed over the measurement books to Hariom Gupta, hence, a presumption could not be drawn against the appellants that they had made certain overwriting in the abstract measurement book (Ex. P/9). Admittedly, there is no overwriting in Ex. P/10. The trial Judge has strangely observed that because on behalf of the appellant a question was not asked in cross examination of Hariom Gupta (P.W. 17) and S.S. Bhadoria (P.W. 11) that they had made overwriting, hence, it be presumed that the appellants had made the overwriting. A presumption could also not be raised that appellants changed two pages Nos. 19 and 20 of M.B. No. 164 (Ex. P/10) because first instance when photo copies Ex. P/2 and P/3 were sent it was in the possession of Mr. Hariom Gupta (P.W. 17) and when subsequently photo copies were sent to Lokayukt, the documents were in possession of Mr. Bhadoria (P.W. 11). The investigation officer (P.W. 18) himself admitted that change was made between 15.1.2002 to 21.9.2004. The trial court further observed that because an inquiry was pending against the appellants before the Lokayukt hence, they had changed the two pages of M.B. No. 164 and made overwriting in M.B. (Ex. P/9) and recorded correct measurement 45.55 cum.
47. Hon''ble Supreme Court in
The requirement in Section 67 of the Evidence Act is only that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the latter permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. Those and some other provisions are subsumed under the title "Opinion of third persons, when relevant." Opinions of third persons, other than those enumerated in the fasciculus of provisions, would have been irrelevant. Among the permitted opinions those mentioned in Sections 45 and 47 are also included. So it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections. There can be other modes through which identity of the handwriting can be established. Citing an example, if a letter is seized from the possession of ''A'' and the letter contains the name of the sender as well as the name of the sendee and if such sendee happens to be ''A'' himself, those circumstances even without resorting to the mode indicated in Sections 45 and 47 of the Evidence Act, would be sufficient to draw an inference that the author or even scribe of that letter is the sender and ''A'' is the sendee of it.
48. From the aforesaid judgment of the Hon''ble Supreme Court it is clear that an inference can be drawn against the accused if the document is seized from the possession of the accused. In the present case, the documents (Ex. P/2 to P/5) were not seized from the possession of the appellants, hence, inference can not be drawn against them.
49. Section 20 of the PC Act, provides presumption, which is as under:-
20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where in any trial of an offence punishable u/s 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an acceded person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable u/s 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding any thing contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification of corruption may fairly be drawn.
From this section itself it is clear that no presumption could be drawn if the offence is u/s 13(1)(d) of the PC Act.
50. Hon''ble Supreme Court has held the same in the case of
9. Same is the position of statutory presumption u/s 20 of the Act and is available for the offence punishable u/s 13 and not for clause (d) of sub-section (1) Section 13.
Hence, the trial court has committed an error of law in drawing presumption against the appellants.
51. Another question for consideration is that whether an offence could be made out against the appellants even if allegation of the prosecution is accepted in toto.
52. There is no allegation that the appellants had taken any illegal gratification from the contractor. There is no allegation that the contractor had received any benefits from the act of omission of the appellants. The allegation is that if the entry in M.B. No. 164, which was recorded initially in regard to measurement of 136.65 cum. was remained as it is, then a loss would be caused to the government of Rs. 50,105/-. It is an admitted by the Investigating Officer and the witnesses of the prosecution that no loss was caused to the department because the entry was changed subsequently to 45.55 cum.
53. Section 13(1)(d) of the PC Act reads as under:-
13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
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(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains fro himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
54. Hon''ble Supreme Court in
21. We must add that on a reading of the provisions of the Act, it is also necessary for the prosecution to prove that the person demanding and accepting gratification is a public servant. Insofar as the present case is concerned, there is no dispute that Syed Ahmed is a public servant. The prosecution must also prove a demand for gratification and that the gratification has been given to the accused. If these basic facts are proved, the accused may be found guilty of an offence under the provisions of law that concern us in this case.
55. Hon''ble Supreme Court in Subhash Parbat Sonvane (supra) considered in detail the meaning of word "obtain" or "obtained" mentioned in Section 13(1)(d) of PC Act has held as under:-
6. In Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically used the word "accepts" or "obtains". As against this, there is departure in the language used in sub-section (1) (d) of Section 13 and it has omitted the word "accepts" and has emphasized the word "obtains". Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under sub-clause (ii), he obtains such thing by abusing his position as a public servant; and sub-clause (iii) contemplates that while holding office as a public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person u/s 13(1)(d), there must be evidence on record that the accused "obtained" for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person ant valuable thing or pecuniary advantage without any public interest.
7. This Court interpreted similar provisions under the Prevention of Corruption Act, 1947 in Ram Krishan v. State of Delhi. In the said case, the Court dealt with similar clause (d) of sub-section (1) of Section 5 and held that there must be proof that the public servant adopted corrupt or illegal means and thereby obtained for himself or for any other person any valuable thing or pecuniary advantage. The Court observed: (SCR p. 188)
In one sense, this is no doubt true but it does not follow that there is no overlapping of offences. We have primarily to look at the language employed and give effect to it. One class of cases might arise when corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage. The word ''obtains'', on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant.
The Court further observed that: (SCR p. 188)
It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour.
8. Similarly, in M.W. Mohiuddin v. State of Maharashtra the Court dealt with Section 13(1)(d)(i) and (ii) and after referring to the decision quoted above as well as the dictionary meaning of the word "obtains" observed-whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved that the accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same on the bag which was brought by the accused and as asked by him; these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification. Therefore, the Court upheld the conviction u/s 13(1)(d). Lastaly, in C.K. Damodaran Nair v. Govt. Of India this Court considered the word "obtain" used in Section 5(1)(d) and held as under: (SCC p. 483, para 12)
12. The position will, however, be different so far as an offence u/s 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused ''obtained'' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption u/s 4(1) of the Act as it is available only in respect of offences u/s 5(1)(a) and (b)- and not under Sections 5(1)(c), (d) or (e) of the Act. ''Obtain'' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence u/s 5(1)(d) of the Act unlike and offence u/s 161 IPC, which, as noticed above, can be, established by proof of either ''acceptance'' or ''obtainment''.
56. Hon''ble Supreme Court specifically held in the aforesaid judgment that in our view mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused u/s 13(1)(d) of the Act. In the present case position is much more better. There is no evidence that the present appellants had taken any money from the contractor neither there is any evidence that there was an intention of the appellants to give benefit to the contractor by recording the entry. The allegation is that if the entry shall remain as it is there would be loss to the department.
57. Hon''ble Supreme Court in
We may at once state that there is no evidence on the record to indicate that the books seized from the premises of A-2 contained entries about all the payments made by him to the labour employed for the execution of the work; and that is a fact the correctness of which we see no reason to presume. The danger of assumptions of the type made by the two courts below is highlighted by the disparity in the figures which they reached in relation to the amount of the value above mentioned. Each had his own way of looking at it; but then the grievous error into which they fell was that they thought that it was for the accused to show that the number of labourers employed confronted to that shown for each day in the summaries attached to the bills. And that is an approach not sanctioned by law.
* * *
We consider it very unsafe, in this state of the evidence, to agree with the learned Judicial Commissioner that the disparity between the estimate arrived at by PW-6 and the volume of material claimed to have been dredged proved "that the documents on which moneys were collected by the accused are false". It appears to us that in coming to this conclusion, he was also influenced by the factors which raised a strong suspicion against the appellants.
58. In this case also, the trial court has relied on the presumption that the appellants may have done the overwriting in Ex. P/9 and they had changed the pages of Ex. P/10.
59. The Constitution Bench of the Hon''ble Supreme Court in
(10) A decision of the Judicial Committee in Dyke v. Elliott, The Gauntlet, 1872-4 AC 184 cited by the learned counsel as an aid for construction neatly states the principle and therefore may be extracted:- Lord Justice James speaking for the Board observes at page 191:-
No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.
In our view this passage, if we may say so, relates the rule of construction of a penal provision from a correct perspective."
60. From the aforesaid decisions of the Hon''ble Supreme Court including the recent one in Syed Ahmed (supra), it is necessary to prove the fact in the event of holding the accused guilty that there was a demand for gratification. In the present case, there is no such ingredients, hence, in our opinion, the trial court has committed an error of law in holding the appellants/accused guilty for offence u/s 13(1)(d) of the PC Act.
61. The other question is that whether the appellants are guilty for other offences also.
62. The judgment of the trial court is based on presumption to the effect that the appellants have committed the act of forgery by making overwriting in Ex. P/9 and changing pages of measurement book (Ex. P/10).
63. No prosecution witness has deposed the same. Contrary to this, all the prosecution witnesses have said that they did not know who had made change of papers in Ex. P/10 and who had made overwriting in Ex. P/9.
64. Hon''ble Supreme Court in the case of
39. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh v. State of M.P. and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra.
40. To the same effect is the decision of this Court in S. Ganesan v. Rama Raghuraman where this Court observed:
39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India.
65. Hon''ble Supreme Court in
8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
66. Hon''ble Supreme Court in
30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between "may be" and "must be".
67. Hon''ble Supreme Court in
27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.
68. In our opinion, the trial court has committed an error in shifting the burden on the appellants to prove the fact that the documents (Ex. P/2 to P/5) are not the photo copies of the originals and they have made interpolation in the measurement book No. 82 (Ex. P/9) and changed two pages of M.B. No. 164 (Ex. P/10).
69. Trial Judge further committed an error by holding that because the appellants were awarded punishment in departmental enquiry, hence, it is relevant fact to hold guilty the appellants for the offence alleged against them.
70. The decision taken in the departmental enquiry could not be made a basis of drawing an inference in a criminal proceeding. Hon''ble Supreme Court in
71. Another glaring mistake has been committed by the trial court is in regard to framing of charge. Initially the charge was framed on 2.2.2011 by the Presiding Judge Smt. Meena Singh. That charge was modified by Presiding Judge Mr. Jitendra Kumar Sharma, who passed the order of conviction. In the aforesaid charge, it is mentioned that appellant Hemant Khare was posted as Sub Divisional Officer, Rajghat Project Jhansi prior to 6.6.2001 to 15.1.2002, however, from the evidence of the prosecution witnesses K.N. Gupta (P.W. 5), Hariom Gupta (P.W. 17), R.M. Pachori (P.W. 18) and the order of transfer and taking over charge produced by the appellant as Ex. D/4 and D/5. It is clear that Mr. Khare was transferred as SDO Sub Dn. Jhansi Orchha to Gwalior vide order dt. 31.7.2001 and he had taken the charge of the aforesaid post on 17.8.2001, hence, the appellant Hemant Khare was posted as SDO at Jhansi Rajghat Canal from 28.2.2001 to 16.8.2001.
72. Due to the illegality in framing of charge the trial Judge has drawn presumption that he was posted as SDO w.e.f. 6.6.2001 to 15.1.2002.
73. Hon''ble Supreme Court in
19. In Sanichar Sahni v. State of Bihar this Court dealt with the aforementioned issue elaborately, and upon consideration of a large number of earlier judgments, held as under: (SCC p. 204, para 27)
27. Therefore,...unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.
20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464 /465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
21. "Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the India criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Rafiq Ahmed v. State of U.P., SCC p. 320, para 36; Rattiram v. State of M.P. and Bhimanna v. State of Karnataka).
74. In the present case in our opinion, as mentioned earlier in this judgment, substantial injustice has been caused to the appellant Hemant Khare in framing the defective charge.
75. The judgment of the trial court is based on circumstantial evidence. Hon''ble Supreme Court in
10. It is seemly to state here that the whole case of the prosecution rests on the circumstantial evidence. The learned trial Judge as well as the High Court have referred to certain circumstances. When a case totally hinges on the circumstantial evidence, it is the duty of the court to see that the circumstance which lead towards the guilt of the accused have been fully established and they must lead to a singular conclusion that the accused is guilty of the offence and rule out the probabilities which are likely to allow the presumption of innocence of the accused.
11. More than six decades back this Court in Hanumant Govind Nargundkar v. State of M.P. had laid down the principles as under: (AIR pp. 345-46, para 10)
10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In order words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
12. In Sharad Birdhichand Sarda v. State of Maharashtra (SCC P. 185, para 153) the five golden principles which have been stated to constitute the panchsheel of the proof of the case based on circumstantial evidence are:
(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established,
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
13. In C. Chenga Reddy v. State of A.P. it has been held that: (SCC pp. 206-07, para 21)
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
76. Hon''ble Supreme Court has mentioned five circumstances in para 12 of
77. The trial Judge has observed that on the basis of answers given by the appellants u/s 313 of Cr.P.C. offence is proved against the appellants. This finding is also against the law because appellants have not admitted the offence in their answer to the questions u/s 313 Cr.P.C.
78. In such circumstances in our opinion, the prosecution has failed to prove its case beyond reasonable doubt against the appellants and the burden could not be shifted on the appellants. There is no evidence on record to hold guilty the appellants for alleged offence. In such circumstances, in our opinion, the judgment of conviction passed by the trial Judge is against the law. Consequently, both the appeals are allowed. The impugned judgment passed by the trial court is hereby set aside. The appellants are acquitted from charges. They are on bail. The fine amount, if deposited by the appellants, be refunded to them. Their bail bonds and sureties are discharged.
