Dilawar Singh Vs State of Hp

2025:HHC:40793

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision Nos. 4159 and 4156 of 2013 Reserved on: 06.10.2025 Date of Decision: 01.12.2025

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Cr. Revision No. 4159 of 2013 Dilawar Singh & another ...Petitioners Versus State of H.P. ..Respondent 2. Cr. Revision No.4156 of 2013 Arjun Singh …Petitioner Versus State of H.P. ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ For the Petitioner(s) : Mr. Subhash Sharma, Senior Advocate with Mr. Prantap Sharma, Advocate in Criminal Revision No. 4159 of 2023. Mr. P.K. Verma, Advocate, vice Mr. K.B. Khajuria, Advocate in Petition No. 4156 of 2013.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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For the Respondent/ : Mr. Lokender Kutlehria, Additional State Advocate General in both the petitions.

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Rakesh Kainthla, Judge

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Since both the revision petitions emanate out of a common judgment dated 04.10.2013, passed by learned Sessions Judge, Una, District, Una, H.P.; hence, they are being taken up together for consideration and disposal by way of a common judgment.

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Both the revision petitions are directed against the judgment dated 04.10.2013 passed by learned Sessions Judge, Una, District Una, H.P. (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 29.03.2010 passed by learned Judicial Magistrate, First Class, Court No. III, Una, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present revisions are that the police presented a challan against the accused for the commission of offences punishable under Sections 419, 420, 467, 468 and 471 of the Indian Penal Code (IPC). It was asserted that the accused Dilawar Singh

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conspired with the co-accused Purshotam Singh and got the general power of attorney executed on behalf of Shiv Ram in favour of Purshotam Singh from Darbara Singh alias Dardi on 03.10.1988. A sale deed was executed on behalf of Tripta Devi, Jagan Nath and Swarni Devi in favour of Ram Piari on 06.02.1989, whereas Swarni Devi had died on 15.11.1983, much before the execution of the sale deed. Some woman had impersonated Swarni Devi, and Dilawar Singh had identified her. The matter was reported to the police by means of an application (Ext.PW12/C). The Police registered the F.I.R. (Ext.PW-12/B). Subhash Chand (PW-12) and Sansar Chand (PW-13) investigated the matter. Register of Vasika Navis was seized memo (Ext.PW-9/D). Fard Jamabandi (Ext.PW-1/A) and registered sale deed (Ext.PW-1/B) were seized vide memo (Ext.PW-1/C). The police seized the general power of attorney and cancellation deed (Ext.PW-6/B) vide memo (Ext.PW-6/A). The thumb impressions of Ram Piari (Ext.PW-4/A), Kaushlya Devi (Ext.PW-4/B), Gurdial Singh (Ext.PW-4/C) and Dilawar Singh (Ext.PW-4/D) were taken. Death certificate of Swarni Devi (Ext.PW-8/A) was seized. The specimen signatures of accused Dilawar Singh (Ext.S1 to

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S3), Arjun Singh (Ext.S4 to S6) were taken. The other accused refused to give their specimen signatures to the police. Statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were charged with the commission of offences punishable under Sections 419 and 468 of the IPC, to which they pleaded not guilty and claimed to be tried.

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The prosecution examined thirteen witnesses to prove its case. Karam Singh (PW-1) is a witness to recovery. Tripta Devi (PW-2) did not support the prosecution’s case. Kewal Krishan (PW-3) was posted as the Sub Registrar, who registered the sale deed. Arjun Singh (PW-4) was posted as Executive Magistrate in whose presence thumb impressions and a specimen of handwriting were taken. Surinder Kumar (PW-5) produced a copy of Misal Hakiat Bandobast Jadeed. Ranjit Singh (PW-6) was posted as a clerk in the office of the Sub-Registrar, who proved the registration of the general power of attorney and produced the record. Mool Raj (PW-7)

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was posted as clerk to the Sub Registrar, who proved the registration of the Sale Deed. Kamal Dev (PW-8) produced the death certificate of Swarni Devi. Kamal Nath (PW-9) scribed the general power of attorney and produced his register. Subhash Chand (PW-10) was posted as Executive Magistrate before whom the accused refused to give their specimen signatures. Yogesh Kumar (PW-11) is the witness to recovery. Subhash Chand (PW-12) and Sansar Chand (PW13) investigated the matter.

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The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. They did not produce any evidence in defence.

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Learned Trial Court held that the prosecution’s case regarding the execution of a general power of attorney by impersonation was not proved; however, it was proved that Swarni Devi had died before the execution of the sale deed. Dilawar Singh had identified the parties to the deed, and the sale deed was registered as per his identification. Statements of witnesses were corroborated by the report of GEQD, which mentioned that the specimen signatures of the accused Dilawar Singh matched the signatures on the sale

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deed. Jagan Nath was the son of Swarni Devi and was aware of the fact that his mother had died. He participated in the execution of the sale deed. Accused Arjun Singh witnessed the execution of the sale deed and facilitated the impersonation. Hence, accused Jagan Nath, Dilawar Singh and Arjun Singh were convicted of the commission of an offence punishable under Section 468 of the IPC. Each of the convicts was sentenced to undergo simple imprisonment for three years, pay a fine of ₹10,000/- and, in default of payment of the fine to undergo further simple imprisonment of 15 days.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Una, District Una, H.P. (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that Swarni Devi had died in the year 1983, much before the execution of the sale deed. Someone impersonated her, and Dilawar Singh identified the impersonator as Swarni Devi. Arjun Singh had witnessed the execution of the sale deed, and Purshotam was the beneficiary. Learned Trial Court had rightly convicted the accused of the commission of an

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offence punishable under Section 468 of the IPC. The sentence imposed by the learned Trial Court was not excessive, and no interference was required with it, therefore, the appeal filed by the accused was dismissed.

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Feeling aggrieved and dissatisfied with the judgments and order passed by the learned Courts below, accused Dilawar Singh & Jagan Nath, and Arjun Singh have filed the seprate revisions. It has been asserted in the revision

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filed by accused Dilawar Singh and Jagan Nath that the learned Courts below did not correctly appreciate the evidence on record. Parkash Chand, Shakuntla Devi and Gurdial Singh had died during the trial of the case. The benefit of doubt should have been extended to the accused after their death because they had material stakes in the property regarding which the sale deed was executed. The benefit of doubt was extended to the other accused, and the same benefit should have been extended to the present petitioners. The ingredients of the commission of an offence punishable under Section 468 of the IPC are not made out from the evidence on record. Therefore, it was prayed that the

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present revision be allowed and the judgments and order passed by the learned Trial Court be set aside.

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Arjun Singh asserted in his revision petition that the learned Trial Court failed to appreciate that the sale deed was executed by the son, daughters and widow of late Bishan Dass. The learned Courts below erred in relying upon a portion of the statement of Tripta Devi that her mother had died; however, she had subsequently clarified that her mother died after the execution of the sale deed. She was an illiterate lady, and a portion of her statement should not have been used by the learned Courts below. The villagers are Pardanashin, and the accused-Arjun Singh, was not expected to know her by name. He relied upon the version of Jagan Nath, who was legally entitled to inherit the property of Bishan Dass after his death. Dilawar Singh had identified all the executants. The accused, Arjun Singh, had only signed the sale deed as a witness and cannot be held liable for forgery. Therefore, it was prayed that the present revision petition be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Mr Subhash Sharma, learned Senior Counsel, assisted by Mr Prantap Sharma, learned counsel for the petitioners in Criminal Revision No. 4159 of 2013, Mr P.K. Verma, learned vice counsel representing the petitioner in Criminal Revision No. 4156 of 2013 and Mr Lokender Kutlehira, learned Additional Advocate General, for the respondent/State.

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Mr Subhash Sharma, learned Senior Counsel for the petitioners/accused Dilawar Singh and Jagan Nath, submitted that the learned Courts below erred in relying upon a part of the statement of Tripta Devi. She had categorically stated that her mother died after the execution of the sale deed. This part of her statement was ignored by the learned Courts below. Jagan Nath was one of the executants, and he had put his signature as such. He could not have been held guilty of forging any document. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr P.K. Verma, learned vice counsel representing the petitioner/accused Arjun Singh, submitted that Arjun Singh had signed the sale deed as a witness. He had not

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forged any document. He relied upon the identification made by Dilawar Singh and Jagan Nath. Learned Courts below erred in holding that he had forged the document. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr Lokender Kutlehira, learned Additional Advocate General, for the respondent/State, submitted that it was duly proved by the death certificate of Swarni Devi that she had died on 15.11.1983; therefore, she could not have executed the deed on 06.02.1989. Dilawar Singh had identified someone as Swarni Devi and abetted the impersonation of Swarni Devi. Accused Jagan Nath is the son of Swarni Devi, and he was aware of the death of his mother. He proceeded to execute the sale deed without raising any protest, suggesting that he had connived with other accused to impersonate Swarni Devi. Accused Arjun Singh had signed the sale deed as a witness, and he facilitated the impersonation of Swarni Devi by someone. The learned Trial Court had rightly held the accused guilty of the commission of an offence punishable under Section 468 of the IPC. This

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Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Therefore, he prayed that the present revision petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also

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well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine

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SC 1294, wherein it was observed at page 695:

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“14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986 , where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the

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provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

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It was held in Kishan Rao v. Shankargouda , (2018)

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8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional

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jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence.…”

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13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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This position was reiterated in Bir Singh v. Mukesh

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Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at

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page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re- analyse and re-interpret the evidence on record.

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17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH,

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(2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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A similar view was taken in Sanjabij Tari v. Kishore

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S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh (supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457 , it is a wellestablished principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

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28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.

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The present revision petitions have to be decided

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as per the parameters laid down by the Hon’ble Supreme Court

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Kamal Dev (PW-8) produced the death certificate

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of Swarni Devi (Ext.PW-8/A), which mentions that Swarni Devi had died on 15.11.1983. This is based on an abstract of the register of birth and death w.e.f. 27.12.1973 till 24.05.1984,

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which means that the entry was made much before the execution of the sale deed or the complaint made to the police. The entry was made by a Public Officer in discharge of his official duties and is admissible under Section 35 of the Indian Evidence Act. It is presumed to be correct under Section 114 of the Indian Evidence Act. It was laid down in Nursingh Prosad Shaha v. Heeralal Shaha, AIR 1950 Cal 377, that an entry made in the death register is admissible under Section 35 of the Indian Evidence Act regarding the date of death. It was observed:-

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“This register is thus kept by a public servant in the discharge of his official duty and is admissible under s. 35 of the Indian Evidence Act. Any entry in such a register can be proved under s. 77 of the Evidence Act, by the production of a certified copy thereof. The question is how much of the entry in this register is evidence. Clearly, the entry is evidence of the fact of death. Other particulars, such as “the cause of death”, the deceased's “age, etc, ” as to which the officer concerned can have no personal knowledge or any means of checking, cannot be treated as evidence.” 23. Therefore, the entry (Ext. PW8/A) is admissible to

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prove the date of death of Swarni Devi.

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Kamal Dev (PW-8) stated in his crossexamination that he did not know Swarni Devi personally. He stated in his cross-examination that the entry was made on

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the basis of the register of the chowkidar. It was submitted that the entry has not been properly proved. Kamal Dev did not know Swarni Devi, and the person who got the entry recorded was not examined. This submission will not help the accused. It was laid down in Bishwanath Gosain v. Dulhin Lalmuni , AIR 1968 Pat 481 , that entries in the birth and death registers are public documents, which are admissible under Section 35 of the Indian Evidence Act, and it is not necessary to prove who made the entries and what was the source of information. It was observed: -

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“12. Out of the aforesaid nine witnesses, A.Ws 1, 2, 5 and 12 in their evidence have stated that Tengari died in the month of Baisakh. The court below has held that Tengari did not die in the month of Baisakh, as was the applicant's case, but died in the month of Sawan as alleged by Bishwanath (appellant before this court). Thus, he has not accepted the evidence of the A.Ws on this question. The evidence of the witnesses for the appellant on this point was supported by Ext. H, entries in the death register. There was some controversy in the absence of evidence of proof as to who made the entries at the bar, as to the admissibility of the entries, and as to the source of his information. The law on the point is well settled and does not need discussion in detail. However, since the point was raised I may refer to two recent Bench decisions of this Court in Bujhawan Singh v. Shyama Devi, AIR 1964 Pat 301 , where it has been held that the entries in birth and death registers are public documents and are admissible under Section 35 of the Evidence Act and that it is not necessary to prove who made the entries

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and what was the source of his information, and in Gopichand Arya v. Bedamo Kuer, AIR 1966 Pat 231 laying down that death register is a public document, presumption of correctness attached to it and heavy onus lies on the party who wants to dispute the presumption. On the evidence of the aforesaid four witnesses, the presumption of correctness which is attached to the entries in Ext. H is not rebutted, and the finding of the court below on this question has to be maintained.”

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It was laid down by the Hon’ble Supreme Court in

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Harpal Singh v. State of H.P. , (1981) 1 SCC 560 , that the certified copy of the entry is per se admissible. It was observed: -

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“3. In the instant case, the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is the evidence of Dr Jagdish Rai (PW 14), who is a radiologist and who, after X-ray examination of the girl, found that she was about 15 years of age. This is corroborated by Ext. PF, which is an entry in the admission register maintained at the Government Girls' High School, Samnoli (wherein the girl was a student) and which is proved by the headmaster. That entry states the date of birth of the girl as October 13, 1957. There is yet another document, viz. Ext. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti, wife of Daulat Ram, on November 11, 1957. Mr Hardy submitted that in the absence of the examination of the officer/Chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author . From whatever angle we view the evidence,

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the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly, we agree with the judgments of the courts below and see no merit in this appeal, which is dismissed.” (Emphasis supplied)

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Thus, the entry cannot be doubted because the

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Chowkidar was not examined, the register maintained by him was not produced before the learned Trial Court, or Kamal Dev did not know Swarni Devi personally.

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Tripta Devi (PW-2) stated that her mother, Swarni Devi, died ten years before the date of her deposition. She (Tripta Devi) had three brothers, namely, Madan Lal, Jagan Nath and Jagdish Ram and one sister, Shakuntla Devi. The mutation of inheritance of her father was attested in the names of her mother, her brothers and her sister. She had put a thumb mark on the sale deed (Ext.PW-1/B). She was permitted to be cross-examined by learned Assistant Public Prosecutor (APP). She denied that Swarni Devi had not put her thumb impression on the sale deed (Ext.PW-1/B). She admitted that she had not sold her share to Ram Piari. She admitted that she was in Delhi in the year 1989. She volunteered to say that she had returned two years before her deposition from Delhi. She admitted that Swarni Devi had died in the year 1983. She denied that her thumb impression

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and the thumb impression of Swarni Devi on the sale deed (Ext.PW-1/B) were forged. The money was paid once at home. She denied that she was making a false statement to save her brother. She stated in her cross-examination by learned counsel for defence that Jagan Nath is her brother and he would be aware to whom the land was sold. She had received the money. She was not aware of her share in the land because the land belonged to her parents. Her mother died after the execution of the sale deed. Her mother had also put a thumb impression on the sale deed. The sale deed was executed eleven years before the date of her deposition. She never made any statement to the police.

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It is apparent from her statement that she has made a contradictory statement. She claimed that she was residing in Delhi and had shifted to Una two years before her deposition. Thus, she could not have been present on the date of execution of the sale deed. She also claimed that she had put the thumb impression on the sale deed. She had not explained how she could have put the thumb impression on the sale deed executed at Una when she was residing in Delhi. She denied that she had sold her share to Ram Piari and again

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stated that she had received the sale consideration. If she had not sold any land to Ram Piari, there would have been no occasion for her to receive the sale consideration. She admitted that Swarni Devi had died in the year 1983 and thereafter stated that she died after the execution of the sale deed, which cannot be correct because the sale deed was executed in the year 1989. She is the sister of the accused, Jagan Nath, and has an interest in favouring him. She contradicted herself on the date of death and it is difficult to rely upon her testimony to discard the prosecution’s case.

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Therefore, the presumption of correctness attached to the certificate (Ext.PW-8/A) has not been rebutted, and the prosecution’s case that Swarni Devi had died on 06.02.1983 has to be accepted as correct. Since she had died in the year 1983, therefore, she could not have executed a sale deed in the year 1989.

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Kewal Krishan (PW-3) stated that the sale deed (Ext.P-1) was produced before him for registration. Dilawar Singh, Lamberdar, identified all the executants. He registered the sale deed based on the identification made by Dilawar

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Singh. He was not aware of the executants. Therefore, he had sought their identification from Dilawar Singh.

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He stated in his cross-examination that he had no personal acquaintance with the executants. He had not called the Lambardar of the village Sanoli. Dilawar Singh was the Lamberdar of Village Majara. As per the identification of Dilawar Singh, all the executants were present; however, Ram Piari was not present, and her brother-in-law had appeared on her behalf. There was no law regarding the pasting of photographs; therefore, photographs were not pasted. Parkash Chand had paid ₹850/- and acknowledged the receipt of ₹850/-. He had not acted as a Sub-Registrar before this case.

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Testimony of this witness regarding the presence of all the executants was not challenged in his crossexamination, which means that the defence accepted that all the executants were present; however, it was not possible because one of the executants, namely, Swarni Devi, had died. Hence, the prosecution’s case that Swarni Devi was not present before him and Dilawar Singh had identified her was duly proved.

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It was submitted that Dilawar was the Lambardar

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of a different village, and the identification should have been sought from the Lambardar of the area where the executants were residing. This submission will not help the defence. No provision of the law was brought to the notice of this Court which requires that the Lambardar of the area where the parties are residing has to identify them. The Sub-Registrar was to get the executants identified from a person known to him, and the identification of Dilawar Singh was sufficient to prove the identity of the executants.

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Therefore, it was duly proved on record that the accused Dilawar Singh had identified Swarni Devi, who was not alive on the date of execution of the sale deed. It was laid down by the Hon’ble Supreme Court in Molar v. State of Haryana, (1973) 2 SCC 430: 1973 SCC (Cri) 826: 1973 SCC OnLine SC 168 , that wrong identification before a Sub-Registrar by a Lambardar was punishable. It was observed at page 432: -

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“9. But for the identification by the appellant that Phulpati was Chaukas, the Sub-Registrar would not have registered the document. The conduct of the appellant in denying the factum of identification by him of Phulpati as Chaukas in the trial court and his plea in the High Court and here that he identified Phulpati as Chaukas because he thought Chaukas alone could have come along with Dharma, Puran and

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Bhagwani to execute the mortgage and that he had no reason to think that the lady whom he identified as Chaukas was Phulpati are telling circumstances. The appellant was the Lambardar of the village, and he was expected to know Chaukas when he identified her.

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10. There is no evidence to support the alternative plea of the appellant that Dharma or Puran made a representation to him that Phulpati, whose face was covered by a veil, was his sister Chaukas and that the appellant innocently believed the statement and made the identification.

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Therefore, the learned Trial Court had rightly convicted the accused Dilawar Singh for forging the document.

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The case against Arjun Singh is that he had witnessed the sale deed and thereby helped in the forging of the document. This is not acceptable. There is no evidence that the accused, Arjun Singh, had benefited in any manner by the execution of the sale deed. It was laid down in Mohanlal Sharma vs State of Rajasthan 2015 2 CriCC 435 that the criminal proceedings cannot continue against the witness to a Will when he had not benefitted from the Will in any manner. It was observed.

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“5. It is not in dispute that the allegation of the creation of a fraudulent Will of Smt. Achraj Devi exists, but the petitioner is not the beneficiary under the Will. He, along with Madan Lal, was a witness to the Will, alleged to be forged. A civil suit between the parties

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exists, which includes even a suit for cancellation of the Will.

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In view of the above and as the role assigned to the petitioner is limited as a witness to the alleged forged Will and is not as beneficiary, the FIR bearing No.298/2001, registered with Police Station Gandhi Nagar, Jaipur, deserves to be quashed, qua the petitioner.”

¶146

A similar view was taken in Md. Yaseen and others.

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vs. State of Jharkhand and Ors. (14.07.2008 - JHRHC): MANU/JH/1076/2008 wherein it was observed:

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“7. The Apex Court in Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. reported in 2000 (2) ECC 634: MANU/SC/0223/2000: (2000) 4 SCC 168 , observed that to hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. It was not the case that the accused Shakila alleged against the petitioners that they induced her to purchase the land from the principal accused vendor. The complainant failed to show that the petitioners had a fraudulent and dishonest intention when they attested the instrument with vested interest to show their mala fides. Similarly, there was no allegation against them having made willful misrepresentation, and the main allegation was against the principal accused, Md. Afjal that he executed a sale deed of 6 decimals of land to the accused Bibi Shakila Khatoon beyond his share.

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I do not find material in the complaint that the vendee, Shakila Khatoon, took possession, or that she came into possession of the land after she purchased. In the circumstances, I am of the firm view that the petitioners who were the attesting witnesses of the instrument cannot be held criminally liable for the alleged offence under Sections 420/465/149, IPC.”

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Chhattisgarh High Court also held in Nishant Agrawal and Ors. vs. State of Chhattisgarh and Ors (16.02.2021 - CGHC): MANU/CG/0088/2021 that an attesting witness to a deed cannot be held liable for forgery. It was observed:

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“24. Reverting to the facts of the present case in light of the aforesaid legal position noticed herein-above, it is quite vivid that in the instant case the only allegation against the present petitioners is that they stood as witnesses during the execution of the sale deeds dated 16/09/2010 by attesting the sale deeds executed by Gaya Prasad, Balgovind and Satyanarayan through their power of attorney holder namely Vinay Kumar Soni in favour of Sanjeev Sharma, Deputy General Manager, Ultratech Cement Ltd. and they have identified the signatures of the sellers who have executed the sale deeds. In light of the principles of law laid down in the aforesaid judgments (supra), it is held that the petitioners were not obliged to verify the title of the sellers upon the said land and they were further not obliged to see that valid title is being transferred in favour of the purchaser i.e. Sanjeev Sharma and their act of attestation as defined under Section 3 of the Transfer of Property Act did not amount to their consent in the said transfer. Merely because they have attested the sale deeds by which title is said to have been transferred by the sellers namely Gaya Prasad, Balgovind and Satyanarayan in favour of the purchaser namely Sanjeev Sharma, it cannot be held that petitioners committed any kind of fraudulent act for which they are liable to be prosecuted for the aforesaid offences including Section 420 of IPC as it is well settled law that recitals in a deed do not bind the attesting witnesses and by act of attestation, the attestor cannot be said to have the knowledge of contents of the document in question. It is not the allegation made against the petitioners that they either fraudulently executed the

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sale deed by impersonating the three sellers for alienating the said land or that they have identified wrong persons as sellers/purchasers, as such, prima facie no case is made out against the present petitioners for prosecuting them for the aforesaid offences including Section 420 and 120B of the IPC and similarly, there is no material available against the petitioners for other offences punishable under Sections 467, 468, 471 read with Section 34 of the IPC and Sections 3(1), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.” 39. It was laid down by the Hon’ble Supreme Court in

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Hans Raji v. Yosodanand, (1996) 7 SCC 122 , that the sale deed

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does not require any attestation. It was observed at page 125:

¶159

“10. So far as the applicability to the proviso to Section 68 is concerned, it must be noted that there was no occasion for the respondent to examine any attesting witness to the document in question as it was a sale deed which never required any attestation and even if some ‘marginal’ witnesses had attested the document the document did not attract Section 68 of the Evidence Act which in term applies to the proof of execution of document required by law to be attested. It reads as under:

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“68. Proof of execution of document required by law to be attested .—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

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Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless

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its execution by the person by whom it purports to have been executed is specifically denied.”

¶165

Therefore, Section 68 would not cover such a transaction. Hence, there would remain no occasion to invoke the proviso to Section 68 with a view to finding out whether the execution of such a document was specifically denied by the adverse party or not. Consequently, all the main contentions canvassed before the High Court, which are repelled by the High Court, cannot be said to be wrongly repelled.

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This position was reiterated in Bayanabai Kaware

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v. Rajendra , (2018) 1 SCC 585: (2018) 1 SCC (Civ) 421: 2017 SCC

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OnLine SC 1357, wherein it was observed at page 588:

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“18. We agree with the reasoning of the High Court. In our opinion, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim a decree for possession of the suit land on the strength of the sale deed dated 29-12-1981 (Ext. P-31) against the appellant. It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.”

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Patna High Court held in Parmanand Singh vs. The State of Bihar and Ors. (17.04.2007 - PATNAHC):

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MANU/BH/1608/2007 , Madhya Pradesh High Court held in

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Dharmendra vs. State of M.P. (05.04.2022 - MPHC): MANU/MP/0748/2022 and Uttarakhand High Court held in

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Amrit Pal Singh vs. State of Uttarakhand and Ors. (08.08.2011 - UCHC): MANU/UC/0864/2011 that an attesting witness to a sale deed can be held liable for forgery, but there is no discussion and the necessity of the attesting witness to a document was not examined; hence, it is difficult to agree with the judgments of the aforesaid High Courts.

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In the present case, the signatures of the accused Arjun Singh were not necessary for the validity of the sale deed, and he cannot he held liable for forging the sale deed.

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Jagan Nath is the son of Swarni Devi. He was aware of the fact that Swarni Devi had died. He permitted the execution of the sale deed by a person who was not Swarni Devi; thus, he had facilitated the execution of the sale deed by an impersonator, and he was rightly held liable for forging the sale deed.

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Therefore, the learned Trial Court had rightly convicted Dilawar Singh and Jagan Nath of the commission of an offence punishable under Section 468 of IPC; however, the learned Trial Court erred in convicting Arjun Singh of the commission of an offence under Section 468 of IPC.

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Learned Trial Court sentenced the accused to

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undergo simple imprisonment for three years, which cannot be said to be excessive, and no interference is required by the sentence imposed by the learned Trial Court.

¶183

In view of the above, the revision filed by accused Dilawar Singh and Jagan Nath fails, and it is dismissed, whereas the revision filed by Arjun Singh is allowed, and he is acquitted of the commission of an offence punishable under Section 468 read with Section 34 of IPC. The fine amount, if deposited be refunded to him after the expiry of the statutory period of limitation in case of no further appeal and in case of appeal, the same will be dealt with as per the orders of the Hon’ble Apex Court.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner-Arjun Singh is directed to furnish bail bonds in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court which shall be effective for six months with a stipulation that in the event of a Special Leave Petition being filed against this judgment or on grant of the leave, the

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petitioner-Arjun Singh on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

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