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Punjab-Haryana High Court
Tara Singh And Ors vs State Of Punjab on 7 April, 2025
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
CRR-1072-2013 (O&M)
Neutral Citation No:=2025:PHHC:048721
THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-1072-2013 (O&M)
Date of decision: 07.04.2025
Tara Singh and others ...Petitioners
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU
Present: Mr. Navkiran Singh, Advocate and
Ms. Harpreet Kaur, Advocates
for the petitioners.
Mr. Kunwarbir Singh, AAG, Punjab,
for the respondent.
Mr. Malkeet Singh, Advocate,
for the complainant.
MAHABIR SINGH SINDHU, J.
Present petition has been filed, under Section 401 of Code of
Criminal Procedure, 1973 (for short “Cr.P.C“) against judgment of conviction
and order of sentence dated 21.07.2010 and 27.02.2013, passed by learned
Judicial Magistrate First Class (for short “JMIC”) and upheld by learned
Additional Sessions Judge, Shaheed Bhagat Singh Nagar (Nawanshahar) (for
short “ASJ”), whereby petitioners were convicted and sentenced in the following
manner:-
TARA SINGH
Offence Sentence Fine In default
466/120-B IPC RI for 01 year Rs.500/- RI for 01 month
467 IPC RI for 03 years Rs.1000/- RI for 02 months
468 IPC RI for 03 years Rs.1000/- RI for 02 months
471 IPC RI for 02 years Rs.500/- RI for 01 month1
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CRR-1072-2013 (O&M)
Neutral Citation No:=2025:PHHC:048721BHAJAN SINGH, CHARAN DASS & DALBIR SINGH
Offence Sentence Fine In default
467 IPC RI for 03 years Rs.1000/- RI for 02 months
468 IPC RI for 03 years Rs.1000/- RI for 02 monthsAll the substantive sentences were ordered to run concurrently.
2. The allegations, as noticed by learned ASJ, in para 2 of the
judgment would be as under:-
“FIR No. 22 dated 25.06.1996 under Sections 419, 420, 467, 468,
471 and 120-B Indian Penal Code, 1860 (for short “IPC“), at Police
Station Rahon, District SBS Nagar, was registered on the basis of
statement made by Joginder Kaur wife of Harbans Singh that she is
resident of Sheikhupur Bagh. Her marriage took place in 1941 with
Harbans Singh son of Gujar Singh Saini, resident of Sheikhupur
Bagh. Her husband after about one year of marriage had joined the
Army and since after two years of marriage he did not come to her
house; nor visited any relation. She does not know anything about
him as to whether he is dead or alive. She has no issue. Her husband
never met her after 1943. He owned 50 kanal 18 marlas of land in
village Sheikhupur Bagh, which is being cultivated by her on batai
through Bawa Singh @ Charan Singh son of Chhajju Singh, resident
of Sheikhupur Bagh since long. Being old and having no issue, she
is living in the house of Bawa Singh and he is providing her meals
etc. and money for expenses. Charan Dass son of Dalipa Ram,
resident of village Tajowal, who is working with co-operative
society, Dopalpur forged a passbook of the society in the name of
her husband and has been doing transactions on his (Harbans
Singh’s) behalf by forging his signatures. Tara Singh, sarpanch of
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Neutral Citation No:=2025:PHHC:048721her village and his brother Ajit Singh, both sons of Amar Singh had
managed a person to impersonate Harbans Singh and created a
forged Will in favour of above Tara Singh, fraudulently and
dishonestly with an intention to grab his property and in this
conspiracy they have associated some other persons also. This
forged Will was attested by Bhajan Singh Lambardar son of Harnam
Singh Rajput of village Jadla and Parkash Singh son of Amar Chand
resident of village Sajjawalpur. They had made some other person to
impersonate Harbans Singh, whose name she does not know and
thus forged the Will dated 07.04.1992 and grabbed her land. Tara
Singh and his brother Ajit Singh had further conspired with
Chowkidar Partapa Ram son of Devi Ditta resident of village Bagh
and had got entered a false date of death of Harbans Singh in the
Chowkidara register of Partapa Ram in the year 1992, by Dalbir
Singh son of Pritam Chand, ad-dharmi of Tajowal, but in fact
Harbans Singh, never came back after 1943. Dalbir Singh was an
employee of the Co-operative Society, Dopalpur and Tara Singh
accused was its President in 1992. She has no relationship of any
kind with Tara Singh; nor Harbans Singh was related to him in any
way. Tara Singh, Ajit Singh residents of Sheikhupur Bagh, Charan
Dass resident of Tajowal, Secretary Co-operative Society Dopalpur,
Chowkidar Partapa Ram and Dalbir Singh, residents of Bagh,
Bhajan Singh lambardar resident of village Jadla, Parkash Singh
resident of Sajawalpur had conspired with each other by forging a
passbook of her husband of the Co-operative Society, Dopalpur and
effected transactions by getting a false entry of death of Harbans
Singh made by Dalbir Singh in the Chowkidara register and by
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Neutral Citation No:=2025:PHHC:048721forging a Will by impersonation and getting it falsely attested by
Bhajan Singh lambardar Jadla and Parkash Singh resident of village
Sajawalpur and by colluding with the revenue officials got a
mutation of her land sanctioned on the basis of said Will and thus
grabbed her land by playing a fraud and unfair means. She is a poor
lady. She may be given justice.”
Subsequently, accused were arrested and after completion of
investigation, report under Section 173 Cr.P.C. was presented before the
Jurisdictional Magistrate.
3. On appearance of accused, in compliance of Section 207 Cr.P.C,
copies of report under section 173(2) Cr.P.C. and other documents were supplied
to them free of costs.
4. As the offences under Sections 120-B, 419, 468, and 471 IPC were,
prima facie, made out, the accused were charge-sheeted on 27.03.1998 by the
then Sub Divisional Judicial Magistrate, accordingly to which they did not plead
guilty and claimed trial. Thereafter, the charge was amended by Criminal
Revision No. 2 of 2006 vide order dated 10.12.2008 by learned ASJ and new
charge framed against accused were under Sections 419, 467, 466, 468 and 471
IPC to which they did not plead guilty and claimed trial.
5. In order to prove its case, prosecution examined the following
witnesses, the details of which are as under:-
PW-1 Udham Singh;
PW-2 Dilbagh Singh;
PW-3 Bikker Singh;
PW-4 Sudarshan Singh;
PW-5 Amrik Singh;
PW-6 Bawa Singh;
PW-7 ASI-Baldev Singh;
PW-8 Narinder Kumar Sharma;
PW-9 HC-Balkar Singh no.283;
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PW-11 Gurbaksh Singh;
PW-12 Sukhjinder Singh Patwari;
PW-13 SI-Charan Dass and
PW-14 SI-Lashkar Singh.
6. Records reveal that these witnesses were examined before the
amendment of charge. Later on, the charge was amended and prosecution re-
started its evidence, but learned JMIC passed an order dated 06.07.2009 that
evidence, already led so far will be read in view of the charge framed afresh; but
there is no necessity to examine witnesses afresh as the framing of charge is the
duty of the court and the contents of the charge-sheet clearly do not give cause to
lead fresh evidence. Thereafter the prosecution closed its evidence.
7. The statements of accused were recorded under Section 313 Cr.P.C.
They claimed themselves to be innocent and alleged false implication due to
party faction in the village and did not lead any defence evidence & closed the
same.
8. After hearing both the parties and upon appraisal of the material
placed on record, learned JMIC, convicted and sentenced the accused to undergo
imprisonment as noticed in first paragraph of this order.
9. Feeling dis-satisfied, all the accused filed five separate appeals
before learned ASJ which were dismissed vide common judgment dated
27.02.2013.
10. It is worthwhile to mention here that, during the interregnum i.e.
after dismissal of aforesaid appeal and before the filing of present revision, one
of the convict, namely Partapa Ram, died; therefore, revision has not been filed
on his behalf.
11. Both the aforesaid judgments and order were challenged by the
accused before this Court by filing present revision which came up for hearing
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before the then Coordinate Bench of this Court on 16.07.2013 and the revision
was disposed off in the following manner:-
“Notice of motion was issued only qua to quantum of sentence on
26.3.2013.
Learned counsel for the petitioners contends that the petitioners are
facing agony of trial since registration of the FIR i.e. 25.6.1996 and
they are in the age group of 45 to 58. Learned counsel further
contends that the petitioners are first offenders, They are neither
previous convicts nor are having any criminal background. Learned
counsel prays that keeping in view the age of the petitioners and
also the fact that they have already suffered a lot of mental agony as
they are facing trial since 1996, their sentence, therefore, be
reduced to the period already undergone by them. Learned counsel
for the petitioners has also relied upon the judgments of Hon’ble the
Apex Court in Gudu Ram Vs. State of Himachal Pradesh 2013 (121)
AIC 6 and State of Punjab Vs. Balwinder Singh and others 2012 (1)
RCR (Criminal) 424 and of this Court in Ravinder Kumar Vs. State
of Punjab 2013 (2) RCR (Criminal) 807 in support of his
contentions.
Learned counsel for the respondent-State has not disputed the
custody period of the petitioners.
Heard the arguments advanced by learned counsel for the parties
and have also gone through the contents of the FIR.
Keeping in view the submissions made by learned counsel for the
petitioners that the petitioners are first offenders and are not having
any criminal background and are facing the agony of trial since
registration of FIR i.e. 25.6.1996, the present petition is partly
allowed. The judgments passed by Courts below qua conviction are
upheld and sentence of the petitioners is reduced to the period
already undergone by them.”
12. Feeling aggrieved, Jasbir Singh (bother-in-law of Joginder Kaur
who died on 27.02.1998), approached Hon’ble the Supreme Court by way of
Criminal Appeal No.1241 of 2015 and which was disposed off on 21.09.2015,
while observing as under:-
“9. The prescribed maximum punishment for offence under Section
466 of IPC is seven years and fine; under Section 467 of IPC, it is
imprisonment for life or imprisonment for ten years and fine; under
Section 468 of IPC, it is seven years and fine and under Section 471
of IPC, it is two years or with fine or both. The trial court, having
regard to the very same submissions made before the High Court,
passed the sentence which we have extracted above.
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10. Though it is not possible for this court to lay down strict
principles on sentencing in the absence of a sentencing policy for
the State, certain indicators need to be born in mind by the Courts.
The gravity of the offence, the mitigating factors and circumstances
like parties buying peace, parties settling the disputes and getting
reconciled, victim subsequently becoming part of the family, victim
showing interest in getting monetarily compensated, etc., the motive
for commission of the crime, the manner in which it was planned
and committed, the prescribed punishment and the social
abhorrence of the offences are but a few of them. These factors
would help the court to discern and decipher the appropriate
purpose of punishment and to enter a satisfaction that justice has
been done. Unless there are mitigating circumstances which were
omitted to be noted by the trial court, the appellate/revisional court
will not be justified in arbitrarily reducing the sentence awarded by
the trial court. And in any case, when the appellate/revisional court
reduces the sentence, the factors leading to such reduction should
be reflected in the order.
11. In this context, it would also be profitable to refer to Jameel v.
State of Uttar Pradesh, wherethis Court held that the punishment
should reflect the society’s cry for justice against the criminals. To
quote:
“14. The general policy which the courts have followed with
regard to sentencing is that the punishment must be
appropriate and proportional to the gravity of the offence
committed. Imposition of appropriate punishment is the
manner in which the courts respond to the society’s cry for
justice against the criminals. Justice demands that courts
should impose punishment befitting the crime so that the
courts reflect public abhorrence of the crime.”
12. In the above circumstances, the appeal is allowed and impugned
judgment is set aside. The matter is remitted to the High Court for
passing an appropriate order in the case in accordance with law.”
13. In compliance of aforesaid order, Registry has listed the present
revision.
14. At the outset, learned counsel for petitioners submits that one of the
petitioners, namely, Charan Dass died on 03.09.2016 i.e. during pendency of
present revision petition. He has produced Death Certificate of Charan Dass and
the same is taken on record as Mark-X.
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In view of above factual position, learned counsel for the petitioners
does not press the petition qua Charan Dass and submits that same be disposed
off as such.
15. Ordered accordingly.
16. Further submits that though initially, notice of motion was issued by
the Coordinate Bench on 26.03.2013 qua quantum of sentence only and finally,
revision was disposed off by another Coordinate Bench on 16.07.2013 while
reducing the sentence of petitioners; but later on, the same was set aside by
Hon’ble the Supreme Court vide order dated 21.09.2015. Now, learned counsel
for petitioners contends that since order dated 16.07.2013 passed by the then
Coordinate Bench has been set aside, therefore, petitioners be heard on merits
and raised the following contentions:-
i. There is no documentary evidence available on record to
prove that Harbans Singh had joined Army and/or that he is no more
alive. During trial, neither ID proof; nor pension card of Harbans
Singh was produced by the prosecution;
ii. Only 03 prosecution witnesses i.e. PW-2 Ex-Sarpanch
Dilbagh Singh, PW6-Bawa Singh & PW11-Jasbir Singh deposed
during examination-in-chief, that Harbans Singh had joined Army;
but they had not seen him in the village since their age of discretion,
which demonstrates that it was only a ‘hearsay’ evidence;
iii. Findings of Civil Court are not binding on Criminal Court, as
both these proceedings operate under different standards of proof
and legal principles. Merely on surmises & conjectures,
presumptions and assumptions, it cannot be inferred from the
judgments of the Court below that Harbans Singh had joined Army
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Neutral Citation No:=2025:PHHC:048721& thereafter, went on missing in the Second World War and/or he
never came back to his native place;
iv. Complainant Joginder Kaur alleged in the FIR that after one
year of their marriage, her husband (Harbans Singh) had joined
Army and did not return to his house thereafter; nor visited any
relation. Joginder Kaur specifically stated that she did not know
whether Harbans Singh was dead or alive; therefore learned counsel
contends that she has nowhere stated that Harbans Singh had died.
This statement rather reinforces the plea of defence that Harbans
Singh was living with petitioner No. 1- Tara Singh and not with his
wife as she was not aware of his whereabouts;
v. Complainant-Joginder Kaur died before she could depose
before learned trial court. Also contends that PW-11-Jasbir Singh
(son of Bawa Singh) is the main beneficiary of the death of Harbans
Singh; therefore, being an interested witness, his statement cannot
be relied upon by the prosecution;
vi. PW-1 Udham Singh, PW-5 Amrik Singh, a member of Gram
Panchayat Sheikhupur Bagh and PW-13 Joga Singh another member
of Gram Panchayat Village Sheikhupur Bagh have not supported the
prosecution version;
vii. Prosecution has miserably failed to prove beyond reasonable
doubt that petitioner-Dalbir Singh, an employee of Cooperative
Society, did commit forgery and/or played any role in the alleged
crime; and
viii. There is not even an iota of evidence against petitioner-
Bhajan Singh Lambardar, who had merely attested the Will dated
07.04.1992.
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17. Per contra, learned State counsel opposes the prayer while
submitting that sentence imposed by learned Courts below does not require any
interference; rather petitioners deserve enhancement of punishment.
18. Learned counsel for complainant has also supported the judgment(s)
and order(s) passed by both the Courts below while submitting that petitioners
had waived off the right to challenge the conviction on merits vide order dated
16.07.2013; therefore, now it does not lie in their mouth to contend that after
remand from Hon’ble the Supreme Court, petitioners can lay challenge to the
conviction “at this stage”.
18.1 Lastly submitted that sentence imposed by learned Magistrate is
already on the lower side. In support of contention, he has placed reliance on
Jaswinder Singh (Dead) through Legal Representative Versus Navjot Singh
Sidhu and others, 2022(7) SCC 628.
19. Heard learned counsel for the parties and perused the paper-book.
20. It transpires that there is no observation by Hon’ble the Supreme
Court that matter is to be decided on merits regarding conviction also. Moreover,
there is no quarrel that controversy had reached to Hon’ble the Supreme Court
only regarding quantum of sentence. But even after hearing both sides and upon
taking into consdieration the material available on record, this Court does not
find any illegality and/or perversity in the conviction recorded by both the Courts
below due to the following reasons:-
(I) It is discernible that the Will dated 07.04.1992 in favour of
petitioner-Tara Singh, propounded by petitioners to be genuine, was
the subject matter of challenge in civil suit No. 575 of 1996 by
Joginder Kaur (wife of Harbans Singh) and which was decreed in
appeal by learned Additional District Judge vide judgment and
decree dated 20.11.2006 (Civil Appeal No. 27 of 2004). For
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Neutral Citation No:=2025:PHHC:048721reference, para Nos.19 & 21 which deals with the legality and
validity of Will read as under:-
“19. In the light of these observations of the Hon’ble Supreme
Court, it is to be seen whether the respondent has been able to
dispel all the suspicious circumstances attached to the Will or
not. At the outset, I will like to observe that law does not
require that a Will to be registered. Mere fact that Will is a
registered Will, it will not by itself be suiricient to dispel all
the suspicions regarding the validity of the Will, where
suspicions exist, Moreover, conscience of the Court must be
satisfied that the Will in question was not only executed and
attested in the manner required under law, it should also be
found that the Will is the product of free volition of the
executor who had voluntarily executed the same, after
knowing and understanding the contents of the Will, when-
ever there is any suspicious circumstance, obligation is cast
on the propounder of the Will to dispel the suspicious
circumtances and I am supported by Gurdial Kaur and others
Versus Smt. Kartar Kaur and others, 1998(i) Apex Court
Journal- 657(SC) and this authority in also an answer to the
authorities cited as Jambunatha Iyer Versus Sankari Ammal
and others, 1995(2) Civil Court Cases-654 and Bachan singh
and another Versus Bakshish Singh, 2000(3) Punjab Law
Reporter-759. The case of the respondent is that Harbans
Singh used to reside with him and out of love and affection
and services rendered by him, Harbans singh had executed
this Will, Ex. DI. Firstly for the sake of repetition, I would like
to again emphasize that when Harbans singh was not alive on
7-4-1992, then the question of execution of this Will
absolutely does not arise and this itself is such a serious
circumstance, which proves that this Will, Ex.DI is the result
of fraud, fabrication and a sham transaction. Respondent has
examined, DW-1, Bhajan singh, one of the attesting witness of
this Will, Ex.DI. He has falsely claimed that he personally
knew deceased Harbans Singh testator inspite of the fact that
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Neutral Citation No:=2025:PHHC:048721he did not belong to the caste of the testator Harbans Singh,
who was of saini caste, whereas this witness DW-I, Bhajan
Singh is Sikh Rajput. He is not related to the deceased. He is
Lambardar of village Jadla, which is situated at a distance of
four kilometers from the village of so called testator Harbans
singh. He even could not tell the name or number of
Lambardars in the village of the testator Harbans Singh. This
witness has also appeared in the court of Sub-Divisional
Magistrate, Nawanshahar, where he also made a statement
on oath. Although in this court, he stated that the testator only
executed this Will, on that day, yet when he was confronted
with his statement. Ex. PA made in that court, he admitted
that he had stated in that court of Sub-Divisional Magistrate,
that the testator had also executed power of attorney
alongwith the Will in favour of Tara singh. When two
important documents were executed on the same date and
time, how it could be believed that a person will remember
the execution of one i.e. the Will and forget the other, is such
a circumstance, which proves that this DWI, Bhajan singh is
a tainted witness and rather connived with this respondent
Tara singh in fabricating this false Will. In the trial court,
when this DWI Bhajan Singh appeared, he pleaded ignorance
about the fact from where the testator Harbans Singh came
on the day of execution of the Will, but when he was
confronted with his statement, Ex.PA, recorded before the Sub
Divisional Magistrate, Nawanshahar, he made statement that
Harbans Singh came from Gurdwara Charan Kanwal, Banga
where he used to reside. Again in the trial court, this witness
stated that Harbans singh died in village Sheikhupur Bagh,
but when he was cross-examined, he admitted that in
statement Ex.PA, made in the court of sub Divisional
Magistrate, Nawanshahar, he stated that he did not know
where Harbans singh died and these are the circumstances
which prove that his evidence is not worthy of any credence
and his testimoney is a tainted one and cannnot be relied
upon. DW-2, Taranjit Singh was also examined in this case
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Neutral Citation No:=2025:PHHC:048721and he is the scribe of the Will, Ex. DI and his evidence is of
no help to the respondent as he failed to prove the Identity of
the testator when he stated that he neither knew the testator
nor the attesting witnesses of the Will personally. The most
Important evidence is the statement of respondent Tata singh,
who appeared as DW4. It is an admitted fact that this
respondent was not related to testator Harbans Singh. The
relation which he has described was only as grand father
from the brotherhood. This relation is unknown to law. The
testator never resided with the respondent and was never
served by him as falsely alleged by him. It is admitted fact
that testator had never any dispute with his wife, Joginder
Kaur plaintiff during their married life and if it is so, then
how it could be believed that this testator Harbans Singh ever
resided with the respondent, it is too remote to imagine
because when there were very cordial relations between
testator Harbans Singh-husband and Joginder Kaur plaintiff-
wife, then how it can be sald that he was only served by this
respondent Tara Singh, who appeared as DW4. If it is so,
then why the wife, i.e.plaintiff Jogindet Kaur was dis-
inherited without any reason. It has been admitted by this
respondent Tara singh, while appearing as DW4 that this
Harbans Singh was engaged in agriculture and used to
parchise fertilizers from the shops and sold produce at the
shops, but this DW4 Tara singh could not tell the names of the
shops from where the testator used to purchase fertilizers and
the name of the shop where he used to sell his produce. In the
Will, Ex. DI, the age of the testator has been recorded as 75
years and in case the testator was attending his own affairs
himself, then it cannot be accepted that the respondent
rendered any services to him, which version automatically
falsifies the tall claim of the respondent that this Will, Ex.DI
is the outcome of the love and affection and services rendered
to him by this respondent, what services this respondent is
talking about, have not been detalled at all in his evidence.
There is not an iota of evidence that he ever served the wife of
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Neutral Citation No:=2025:PHHC:048721the testatory, i.e. Joginder Kaur-plaintiff. After all, from the
Will, Ex. DI, it is also proved on record that the testator had
love and affection for his wife when he has given half of the
share of the usufruct of the produce of the land to her. This is
again such a serious suspicious circumstance, which the
propounder has failed to dispel. Moreover, both these
witnesses, DWI Bhajan singh Lamberdar and Parkash singh
belong to different villages than that of the village of the
testator. There is no evidence on record to show that they
were close friends, confidants or relations of the testator
because normally when a Will is executed if the testator wants
to keep the relations out of this Will, then certainly close
friends or confidents are joined but here neither any close
friend, confidant or relation is joined and this is such a grave
suspicious circumstance, which casts a doubt on the
genuineness of this Will Ex.D-1. The un-natural disposition of
the property under this Will, Ex. D1 is again such a serious
suspicious circumstance which discards the Will from its
core. It is an admitted fact that testator had no issue. His wife,
Joginder Kaur plaintiff was the only sole legal heir. In these
circumstances, why the testator had bequeathed his entire
estate in favour of the respondent who was not related to him
in any way, nor to his wife, Joginder Kaur plaintiff, who has
been given only right to get half share in the usufruct of the
land without any right of alienation. Infact right as given
above to Joginder Kaur plaintiff under this Will, Ex. DI is a
illusory as she has been practically dis-inherited from his
estate by the testator without assigning any reason and the
propounder has not been able to dispel this serious
circumstance attached to the Will, Ex.DI. Again keeping this
Will, Ex.DI for more than four years secretly and not
reporting the same, makes it a suspicious one. These were the
suspicious circumstance which the propounder was required
to dispel and the propounder has failed to dispel the same and
it has not satisfied the conscience of the Court.”
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“21. As an upshot of my above discussion, the trial court has
committed grave illegality and irregularity while returning
findings on Issues No. I to 3 against the appellants which has
caused mis-carriage of justice because Will, Ex.DI
propounded by the respondent is a sham, fabricated and false
document prepared by respondent Tara Singh in connivance
with Bhajan singh Lamberdar, Parkash Singh, the alleged
attesting witnesses of this Will, Ex. DI, as well as, scribe
Taranjit singh and the findings of the trial court on these
issues are reversed and decided in favour of the appellant and
against the respondent. Consequently this appeal is allowed
with costs and the impunged judgment and decree are set
aside and as its consequence, the suit of the plaintiff-
appellant for declaration with consequential relief of
permanent injunction as prayed for is decreed. Counsel’s fee
assessed to Rs. 1,000/-. Decree-sheet be drawn accordingly.
Trial court’s record along with a copy of this judgment be
sent back forthwith. File of this court be consigned.”
(II) The aforesaid findings attained finality upto Hon’ble the
Supreme Court vide SLP (Civil) No. 10918 of 2010 decided on
04.01.2013. Thus, it is established by Civil Court that the Will dated
07.04.1992 is a forged and fabricated document.
(III) The question emerged as to whether the findings of Civil
Court will have some bearing on the present criminal proceedings or
not?
Hon’ble the Supreme Court in Iqbal Singh Marwah and
another Versus Meenakshi Marwah and another (2005)4 SCC 370
while placing reliance on Constitution Bench in M.S. Sheriff
Versus State of Madras, AIR 1954 SC 397 laid down the
parameters to be followed in case of standard of proof required in
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civil and criminal proceedings and paragraph 32 thereof, being
relevant, is recapitulated as under:-
“32. Coming to the last contention that an effort should be
made to avoid conflict of findings between the civil and
criminal courts,it is necessary to point out that the standard
of proof required in the two proceedings are entirely
different.Civil cases are decided on the basis of
preponderance of evidence while in a criminal case the entire
burden lies on the prosecution and proof beyond reasonable
doubt has to be given. There is neither any statutory provision
nor any legal principle that the findings recorded in one
proceeding may be treated as final or binding in the other, as
both the cases have to be decided on the basis of the evidence
adduced therein. While examining a similar contention in an
appeal against an order directing filing of a complaint under
Section 476 of the old Code, the following observations made
by a Constitution Bench in M.S. Sheriff v. State of Madras
give a complete answer to the problem posed: (AIR p. 399,
paras 15-16)
“15. As between the civil and the criminal proceedings we are
of the opinion that the criminal matters should be given
precedence. There is some difference of opinion in the High
Courts of India on this point. No hard-and-fast rule can be
laid down but we do not consider that the possibility of
conflicting decisions in the civil and criminal courts is a
relevant consideration. The law envisages such an eventuality
when it expressly refrains from making the decision of one
court binding on the other, or even relevant, except for
certain limited purposes, such as sentence or damages. The
only relevant consideration here is the likelihood of
embarrassment.
16. Another factor which weighs with us is that a civil suit
often drags on for years and it is undesirable that a criminal
prosecution should wait till everybody concerned has
forgotten all about the crime. The public interests demand
that criminal justice should be swift and sure; that the guilty
should be punished while the events are still fresh in the
public mind and that the innocent should be absolved as early
as is consistent with a fair and impartial trial. Another reason
is that it is undesirable to let things slide till memories have
grown too dim to trust.
This, however, is not a hard-and-fast rule. Special
considerations obtaining in any particular case might make
some other course more expedient and just. For example, the
civil case or the other criminal proceeding may be so near its
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end as to make it inexpedient to stay it in order to give
precedence to a prosecution ordered under Section 476. But
in this case we are of the view that the civil suits should be
stayed till the criminal proceedings have finished.”
(IV) Of Course, in view of the above, legal position, the judgment
passed by Civil Court is not binding upon the Criminal Court as
nature of proof required for both Courts operate in different spheres.
At the same time, it cannot be lost sight of the fact that a judgment
passed by Civil Court is relevant to the Criminal Court in terms of
Sections 40 to 43 of the Evidence Act.
(V) Records reveal that entire case of the prosecution hinges on
the premise as to whether Harbans Singh remained unheard since
1945 or not? In this regard, it is profitable to recapitulate the
provisions of Section 108 of the Evidence Act which reads as
under:-
“108. Burden of proving that a person is alive who has not
been heard of for seven years.
Provided that when the question is whether a man is alive or
dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is shifted
to the person who affirms it.”
A bare perusal of the above provision of law reveals that it
carves out an exception to the settled principle of Evidence Act that
burden to prove its case always lies upon the prosecution. However,
if it is proved that a person has not been heard of for seven years by
those who would naturally have heard of him if he had been alive,
then the burden of proof that he is still alive, would rest upon the
person who affirms the factum of his living.
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(VI) In the present case, prosecution alleges that Harbans Singh
was not heard after 1945; therefore, his wife Joginder Kaur filed a
suit No. 575 of 1996 for seeking declaration qua his civil death and
claimed consequential right of ownership upon his property being
Class-I heir. On the contrary, the defence of the accused is that
Harbans Singh was alive and had been staying with Tara Singh
(petitioner No.1) in the same village and also executed a Will in his
favour.
(VII) In such a fact-situation, the onus to prove that Harbans Singh
was alive lies upon the accused/petitioners which they miserably
failed to discharge; despite availing sufficient opportunities and
ultimately, has chosen not to lead any defence evidence.
(VIII) The factual matrix of the case in hand is such that there
cannot be any positive proof by the prosecution regarding death of
Harbans Singh and as such it can be safely concluded beyond
shadow of reasonable doubt that the Will in question was a forged
document.
(IX) With regard to culpability of petitioners in the present case is
concerned, the prosecution has duly established on record that
Harbans Singh had gone to serve Army during “Second World War”
but went missing. Thereafter, he was not heard by any one in the
village since 1945. PW-2 Dilbagh Singh, PW-6 Bawa Singh and
PW-11 Jasbir Singh have stated in unison that Harbans Singh was
missing in action since 1945 and was not heard of for a period of
more than 45 years. Petitioners Tara Singh, Charan Dass (since
deceased) and Dalbir Singh in connivance with each other opened
fake joint bank account in the names of Tara Singh and Harbans
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Singh; forged and fabricated Will dated 07.04.1992 purported to be
attested by petitioner Bhajan Singh Lambardar and mortgaged the
land measuring 50 kanals, 18 Marlas left by Harbans Singh.
Thereafter, the accused procured a wrong death entry of Harbans
Singh on 23.12.1992 from Chowkidar of village, namely Partapa
Ram (since deceased).
(X) Apart that, documentary evidence in the shape of CFSL report
dated 14.07.1997 produced on record by the prosecution proves the
fact that the “account opening form” alleged to be of the deceased
was signed by accused Charan Dass (now deceased) along with Tara
Singh.
21. The argument raised by learned counsel for petitioners that PW-11
Jasbir Singh cannot be relied upon being an interested witness is liable to be
rejected for the reason that evidence of a witness cannot be brushed aside
outrightly only because of interested person. It is settled law that evidence of an
interested witness has to be evaluated with care and caution.
22. In Masalti v. State of U.P., 1964 SCC Online SC 30, Hon’ble the
Apex Court in paragraph 14 observed as under:
“14. But it would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only on the
ground that it is evidence of partisan or interested witnesses.The
mechanical rejection of such evidence on the sole ground that it
is partisan would invariably lead to failure of justice.”
In the present case, PW-11 was cross-examined at length but his
testimony could not be shaken and he stood his ground.
23. In view of the sufficient evidence on record, this Court is not
persuaded by the pleas raised by the petitioners; therefore, the reasoning assigned
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by both the Courts below do not require any intereference by this Court while
exercising revisional jurisdiction under Section 401 Cr.P.C.
24. Now adverting to the quantum of sentence, for the sake of
repetition, it is observed that offence under Section 467 IPC entails imprisonment
for life or imprisonment for ten years and fine. But, in view of the interdict under
Section 29(2) Cr.P.C., learned JMIC could pass the maximum sentence of three
years; which was imposed; the same had been upheld by learned ASJ. While
entertaining revision petition, the then Coordinate Bench of this Court took a
lenient view in the matter while reducing the sentence of the petitioners from
three years to the period already undergone by them viz., less than six months for
all the petitioners.
25. The offence is serious, inasmuch as, the petitioners have committed
forgery with a solider who had left his wife, house and property to serve in
Second World War; but by taking the advantage of his absence, petitioners firstly
opened a fake bank account in the name of Harbans Singh; manufactured a
forged Will dated 07.04.1992 and thereafter, procured false entry of his death.
Thus in the opinion of this Court, petitioners do not deserve any leniency on the
quantum of sentence. The sentence of imprisonment and fine imposed by both
Courts below cannot be said to be on higher side; rather the same commensurate
with the proven guilt of petitioners.
26. In view of the above, present revision petition is dismissed. The
judgment of conviction and order of sentence passed by both the Courts below
are affirmed.
27. Consequently, petitioners shall surrender before learned Chief
Judicial Magistrate, SBS Nagar (Nawanshahar) within 06 weeks from today and
thereafter, they be sent to custody to undergo their remaining part of sentence.
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28. In case there is a failure on the part of petitioners, the Court would
be at liberty to take all possible legal steps to secure their presence and send them
to judicial custody for the aforesaid purpose.
Pending criminal misc. application(s), if any, shall also stand
disposed off.
07.04.2025 (MAHABIR SINGH SINDHU)
SN JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable: Yes/No
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