The Bhutanese Leading the way.
His daughter points out several lapses in the forensic evidence and procedure used for his conviction
On the 6 March 2024, the Supreme Court passed a verdict convicting a 63-year-old man named Legola to three years in prison in Chamgang jail for forging the English signature of a Kelzang Dolkar in a land transaction.
Legola’s daughter, Kuenzang Pelden, who has been closely following this case said that while she is not directly challenging the Supreme Court verdict, she is questioning the procedures adopted by the police, including the illegal arrest of her father, the quality of the forensic evidence, its handling and mix ups with the documents of a different forensic case being mixed in her father’s forensic envelope.
She also said that since Legola is illiterate, how could he have the ability to forge an English signature.
Heart of the Case
The heart of the case is a legal agreement dated 15 April 2005 which states that Kelzang Dolkar is transferring 16 decimals of land, and a one storied house to Legola for services rendered since 1970.
Legola, in court, said this is a legitimate agreement with a signed witness called Khandu while Kelzang Dolkar has said her signature was forged, and she never gave the land and house.
The story all started in Kurtoe, Lhuentse where Kelzang Dolkar and her first cousin sister Tshering Lhadon hail from. Tshering Lhadon is Legola’s wife.
Kuenzang said that her mother, Tshering Lhadon, and other family members have been serving Kelzang Dolkar from Kurtoe, itself.
Sonam Penjor, the son-in-law of Kelzang Dolkar, and speaking on her behalf, said that his mother-in-law had felt sorry for her cousin sister and the family and allowed them to stay in a house on an 80-decimal plot in Taba, and even bought them a cow to help sustain their income. He said Kelzang even educated the children of Legola and Tshering Lhadon in Thimphu and sent some to France too.
Kuenzang, however, said that her parents though related to Kelzang Dolkar were effective life-long helps who even helped construct two buildings for Kelzang giving free labour, and did other menial works for her.
She said that Kelzang wanted Legola and rest of the family members to shift their census to Thimphu too so that they could be here permanently to serve them.
The only way to shift the census is to own a plot of land in Thimphu, and she said the land was given to enable it.
Kuenzang also said that Kelzang’s late husband, who was a good-hearted person, also wanted to ensure that Tshering Lhaden got some land and property for all the free labour, especially during the construction of the two buildings.
The Agreement
Kuenzang said that in 2005 Kelzang voluntarily gave a 16-decimal plot of land (reduced to 11 decimals after land pooling) and the house they were living in. She said Kelzang signed the transfer agreement, and then sent Legola to a Jabmi named Khandu to be the witness to the agreement.
Khandu told this paper that he had earlier been the legal representative for Kelzang in a case of hers, and that is how she knew him, but he, himself, did not know Legola or even met him before.
So, when Legola approached Khandu with the transfer agreement and the instructions from Kelzang he had called Kelzang.
“I asked her if she was actually transferring the land and house, and that if there would not be any controversy in the future if I became the witness, and she said she is transferring it willingly and there will be no issues in the future,” said Khandu.
Khandu then signed as witness on the legal stamp.
Sonam Penjor, talking on behalf of Kelzang, said that the agreement says Legola served Kelzang since 1970, but in fact they only met from 1995 when Kelzang brought the property.
Kuenzang said that the agreement is talking about her mother’s service since she was around 15-years-old in 1970 in Kurtoe and served Kelzang from then only.
Sonam then questioned saying if the original agreement was drawn up in 2005 then why did Legola not do the rest of the process to get a thram and why did he not tell others about it.
Here, Kuenzang replied saying that when Kelzang gave the land in 2005, the value of land in Taba was only around Nu 20,000 to Nu 30,000 per decimal, but from 2008 onwards the urbanization plans of Taba led to price doubling and tripling frequently, and she said this is when Kelzang had second thoughts about the land transfer.
Kuenzang said there were also ‘ego issues’ as Legola’s children who were educated and independent did not give the same level of service and help as their parents.
Kuenzang said that they did not transfer the thram as Kelzang told them that their 16-decimal land had been taken away by Thimphu Thromde due to land pooling, and so they actually thought this was true. She said Kelzang even encouraged them to apply for land Kidu.
Kuenzang said it was only years later they found out that the 16-decimal plot had been decreased in size to 11 decimals due to land pooling, and it had been put under the name of one of Kelzang’s daughters.
A Civil Case
In 2018 Thimphu Thromde wanted to demolish the house on the land as it fell within government land after land pooling, and offered around Nu 1 mn as compensation.
Around that time, Kuenzang said that Kelzang, without her illiterate father knowing, made him sign a rental agreement saying he would pay rent on the property. Kuenzang and her siblings ensured the agreement was cancelled in court before the 10 days period.
They found that the Nu 1 mn compensation was claimed and taken by Kelzang from the Thromde. Then Kuenzang, on behalf of her father, filed a civil suit in the Thimphu District Court claiming the amount saying the house had been given to them, and they should get the amount given the extensive repairs that was done by them.
Kuenzang used the agreement to claim the amount. The District Court ruled against Legola saying the agreement did not have two witnesses as required by the Evidence Act but it awarded around half the amount due to the repairs.
At this stage Kuenzang was just fighting for the compensation and was not even aware that the land was still there.
When the case was appealed to the High Court and Kuenzang was doing research for it, she found that the land had not been taken away and was still there albeit reduced in size after land pooling.
With the help of a lawyer this time she presented her case, and the high court overruled the district court and awarded Legola both the compensation and the land. The high court said that the two witnesses’ requirement was brought in by amending the Evidence Act only many months after the above agreement was drawn up and so one witness is valid.
A Police Complaint
Given this turn in the case, Kelzang Dolkar appealed to the Supreme Court, and also filed a forgery complaint to the Thimphu police station in July 2021.
The Thimphu police station OC, at the time (who has now resigned from the force), called Legola to the police station, interviewed him, got all the documents concerned and then detained him.
Kuenzang said that this was a big shock, as Legola had just won the civil suit in the High Court and produced all the original documents that the OC wanted during the police investigation.
The detention by the OC was also in violation section 165 of the Civil and Criminal Procedure Code of Bhutan, which lists the cognizable offences for which arrest without a court warrant can be made, but forgery is not one of them.
Kuenzang asked that the alleged place of occurrence was in North Thimphu, which already had a police station, and so, why did this particular OC take on the case and also detain her father? RBP, here, said the Thimphu police station can take cases from all over Thimphu.
Legola was detained for almost two weeks, and despite pleas to release him, the OC kept telling the court that the investigation is not done.
Kuenzang alleged that Kelzang’s family is an influential one with extended family members that have links to the RBP and the Judiciary, and she wonders if this played a role in how her father was treated by the OC.
Sonam Penjor denied any such influence at play, and said things were done in accordance with the law and evidences.
In the meantime, the Supreme Court was requested by Kelzang to withhold its proceedings and judgment in the civil case until the forgery investigation is done, which was agreed to.
Forensic Investigation and Questions
RBP, as a part of its investigation, sent the agreement, signature samples of Kelzang and other documents with Kelzang’s signature to a private forensic company in Delhi called JK Consultancy.
JK Consultancy sent its September 2021 report to the RBP. Kuenzang said that when she reached the Taba police station, the forensic report had already been opened as the sealed envelope that contained the report was torn, and so, she and the lawyer did not accept it due to a possibility of tampering with the report.
She and the lawyer also pointed out that the report had seals and signatures missing on several pages.
The female OC in the Taba station was making a video recording of the opening.
Kuenzang and her lawyer were not given permission to make a video recording or take photos of the torn envelope, and so they requested the OC to keep the video copy so that it could be used in court.
However, the female OC later said that recording had been lost, as a child played with her phone.
Later in court, the Taba OC told the court she opened it herself, as they were not sure which were the documents as it came in a pile.
RBP and the OAG stood by the forensic report in the Thimphu District Court. In the same court Legola’s lawyer and daughter presented a rival forensic report from Square Forensic Advisors in Mumbai which said that the signature belonged to Kelzang Dolkar. Khandu also stood by his statement that Kelzang had said she was transferring the property, and had asked him to stand as a witness.
Sonam Penjor said from the District Court, itself, they presented a circumstantial evidence in the form of a teacher who was there when Legola around 2015 had brought a document asking Kelzang to transfer the land and house to him.
Kuenzang said the teacher is a fabricated witness created later.
The District Court did not accept the forensic report from Mumbai and convicted Legola of forgery, and sentenced him to three years in prison based on the report by JK Consultancy.
Legola appealed to the High Court where the issues around the JK Consultancy report were brought up including the different findings of the Square Forensics.
The High Court based on the appeal agreed to a request from the defendants to send the samples for forensic testing to Australia, as they said they did not trust the labs selected by the RBP in this case and also their capability. The defense also agreed to bear the full expense for such a study.
However, the sample, as had been initially agreed, was not sent to Australia but sent to the National Forensic Sciences University in Gandhinagar in Gujarat by RBP.
The High Court had been told by RBP that the forensic labs in Australia were overloaded and it may take even a year to do the forensic testing.
However, when this paper asked the RBP for email correspondence records to show it had contacted forensic labs in Australia, a RBP official said he had written to a Director there in Australia who had not responded to his mail, and so permission was sought from the Court to send it to Gujarat.
Kuenzang said the RBP had never done due diligence in exploring the many forensic labs in Australia.
The September 2023 report of the National Forensic Sciences University reached Thimphu and was supposed to be open in front of the High Court this time.
However, there was utter chaos when the forensic report was opened in the court, as while the covering analysis report was on the Legola case, but the sample documents and signatures were for a different Lhabula case in Paro.
It was clear the forensic lab in Gujarat had mixed up the sample signature specimens while sending them. The Legola case sample signatures of Kelzang had been sent to Paro and the Paro case samples had been sent to Thimphu.
Another anomaly was that even in the main analysis report saying it was not the signature of Kelzang Dolkar, the person who did the forensic analysis had listed in his own writing saying that enclosed documents were 5 A-4 sized papers and 3 receipts which are actually the enclosed documents of the Lhabula case in Paro.
The Legola case had 9 A-4 sized papers and there were no receipts. It is clear from this that the forensic analyst had not only enclosed the wrong attachments of a different case, but he made another major mistake by mentioning on the main forensic report the wrongs sets of documents as being analysed.
Legola’s lawyer asked the court to get a chance to cross examine the forensic team of NFSU Gujarat and JK Consultancy over video conference, but this was not granted.
The High Court basing its decision on the NFSU Gujarat forensic report upheld the conviction of Legola.
The Supreme Court also upheld the High Court decision as stated above based on the NFSU forensic report. The Supreme Court also went one step ahead and said the agreement is also invalid since the agreement is on land, and what will apply is the older Land Act where two witnesses are required to transfer land.
Questions Arising from the Case
The above case raises several important questions.
In a criminal case conviction, the evidence must be beyond reasonable doubt, however, the NFSU forensic report had come in a mixed-up manner. This is important as the High Court and Supreme Court judgments are based on the NFSU report.
This also raises questions on the quality of forensic reports from India that the RBP depends upon.
A legal expert said that the main witness Khandu had stuck to his stand throughout as a witness to the agreement, but the courts seem to have ignored that.
The Supreme Court judgment says that Legola committed the forgery, but here, three things are problematic. The legal expert said firstly, Legola is illiterate, and secondly, while the Indian forensic reports said it is not Kelzang’s signature, they never said that it was forged by Legola.
The third point is that despite being detained for around two weeks, and questioned by the police, Legola never confessed to committing the forgery.
Kuenzang said that if the forensic testing was done in Australia, she would have readily accepted whatever the result was, but the RBP misled the court saying the labs in Australia are busy when the RBP did not even correspond with forensic labs in Australia.
The initial arrest of Legola in violation of section 165 of the CCPC also raises questions.
A legal expert said that while the courts rejected the Square Forensic report saying permission had not been taken, there is no law in Bhutan that states a court’s permission is required to do signature forensic report analysis. Scans of the original documents had been sent to Square Forensic.
The Square Forensic report states that a person cannot produce in a mechanical manner exactly what had been written first and there must be some natural variation.
It says the signature of Kelzang on the agreement and her other sample signatures from different documents have sufficient agreement in style and individual characteristic.
The report says that Kelzang’s agreement signature and her other signatures show identical inferior penmanship.
Interestingly even when one compares the admitted signatures of Kelzang, there are significant variations between almost all of them in many of the alphabets.
This is keeping in mind the 2005 signature was around 18 years ago.
Kuenzang said that now she does not even care for the land and house they have lost, and she does not want them, but she is worried that her 63-year-old illiterate father is serving sentence for a crime that he did not commit.
