State of H.P. Vs. Khoob Ram and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.surjit singh, j.1. state has appealed against the judgment, dated 2nd january, 2004, whereby respondents khoob ram and subash bhalla, who were charged with and tried for offences, under sections 468, 471, 420, read with section 120-b of the indian penal code, have been acquitted by the trial magistrate. 2. case of the prosecution, as per evidence adduced during trial, is like this. respondent khoob ram was posted as patwari in mauza sirigarh, tehsil ani, district kullu, in the year 1966. respondent subash bhalla is a resident of chanigarh. this respondent no. 2 subash bhalla wanted to purchase land in solan district of himachal pradesh. however, he is not an agriculturist, within the meaning of section 118 of the h.p. tenancy and land reforms act, and, therefore, cannot purchase any land in the state of himachal pradesh, unless he obtains permission from the government. with a view to purchasing a big chunk of land to execute his plans, as a builder, in the area of solan district, he entered into a conspiracy with respondent no. 1 khoob ram. as per the plan, khoob ram was to issue a copy of jamabandi, containing false entries, showing respondent no. 2 subash bhalla as owner of land in mauza sirigarh, tehsil ani. accordingly, respondent no. 1 issued copy of jamabandi, pertaining to khasra no. 838, mentioning therein that respondent no. 2 subash bhalla had got in succession land, comprised in the said khasra number, on the basis of will of ram chand, recorded as owner in the relevant column. the said copy is ex. pw-7/a. it is alleged that by using this ex. pw-7/a, respondent no. 2 subash bhalla purchased land in solan district, near barog, vide sale deeds, exts. pw-6/b, dated 29th november, 1986, pw-6/c, dated 22nd may, 1989, and pw-12/a, dated 20th february, 1991. these facts came to light when deputy commissioner, solan, was holding some inquiry, under section 118 of the h.p. tenancy and land reforms act, against respondent no. 2 subash bhalla. he wrote to deputy commissioner, kullu, to look into the matter. deputy commissioner, kullu, asked sub divisional officer (civil), to hold an inquiry. the said officer gave the report that there was a conspiracy between the two respondents and in furtherance of that conspiracy, copy of jamabandi ex. pw-7/a for the year 1968-69 had been issued by respondent no. 1. 3. trial court charged the respondents with offences, under sections 468, 471, 420, read with section 120-b of the indian penal code, and, on their pleading not guilty, put them on trial. 4. seventeen witnesses were examined by the prosecution to bring the charge home to the respondents. respondents, in their statements, under section 313 of the code of criminal procedure, denied that there was any conspiracy. respondent no. 1 khoob ram denied that copy of jamabandi ex. pw-7/a had been issued by him, even though the report of the handwriting expert, pw-17 dr. b.a. vaid, was to the effect that the writing on ex. pw-7/a was similar to the admitted and specimen writings of the said respondent. 5. learned trial court acquitted the respondents, holding that the admitted writings and specimen writings were not admissible as piece of evidence. also, it has been observed by the learned trial court that original jamabandi, for the year 1968-69, having not been proved, it could not be said that the contents of ex. pw-7/a were false. 6. i have heard the learned assistant advocate general and the learned counsel for the respondents. 7. view taken by the learned trial court, with regard to the specimen writings and signatures of respondent no. 1 khoob ram, which had been duly proved by pw-8 bhim chand, a judicial magistrate, is not correct. pw-8 bhim chand, who was then a judicial magistrate, was approached by the investigating officer to take the specimen signatures and writings of respondent no. 1 khoob ram in his presence and to attest the same. he obliged the police. 8. learned counsel for respondent no. 1 submits that magistrate did not have the power to direct respondent khoob ram, at the investigation stage, to give his specimen writings/signatures in the court, under section 73 of the indian evidence act. to support this plea, he has placed reliance upon a judgment of the hon'ble supreme court, in state of uttar pradesh v. ram babu misra : [1980]2scr1067 . the precedent relied upon is not attracted to the facts of the case in hand, because in this case neither any application, under section 73 of the indian evidence act, had been moved nor any direction had been given by the judicial magistrate to respondent no. 1 to give his specimen writings/signatures. pw-8 bhim chand, judicial magistrate, was approached by the police only to become a witness to the taking of the specimen writings and signatures of respondent no. 1 khoob ram and he accepted this request of the police. 9. it is well settled by a judgment of eleven-judge bench of the hon'ble supreme court that an accused person can be called upon to give his specimen signatures/writings during investigation and this would not amount to compelling him to become a witness against himself, within the meaning of article 20(3) of the constitution of india. the citation is state of bombay v. kathi kalu oghad : 1961crilj856 . 10. as regards admitted writings, exts. p-1 to p-5, prosecution failed to lead any evidence, connecting the said writings with respondent khoob ram. nobody was examined to testify that the alleged admitted writings, exts. p-1 to p-5, were, in fact, in the hand of the said respondent. 11. however, the prosecution was bound to fail, because it failed to prove that the contents of ex. pw-7/a were false and not in accordance with the original jamabandi. prosecution was supposed to have proved the original jamabandi for the year 1968-69, pertaining to khasra no. 838, to show that in the said jamabandi there was no note in the remarks column, similar to the one in ex. pw-7/a, indicating that respondent no. 2 subash bhalla had succeeded the property, comprised in the said khasra number, on the basis of will of owner ram chand. in the absence of such evidence, it cannot be said that copy ex. pw-7/a is, in fact, a false copy, as alleged by the prosecution. 12. moreover, charge, under sections 420, 468, 471 and 120-b of the indian penal code, could not have even been framed, because the sale deeds, exts. pw-6/b, pw-6/c and pw-12/a, had been executed, in favour of respondent no. 2 subash bhalla, long before the issue of copy of jamabandi ex. pw-7/a and, hence, it could not be said that by using this copy of jamabandi, respondent no. 2 subash bhalla had duped the registrar of documents and revenue officials of solan district, to get the aforesaid three sale deeds executed in his favour. in view of the abovestated position, i see no merit in the present appeal. the same is, therefore, dismissed.