Karnataka High Court
Sri B S Suresha vs State By Turuvekere Police on 16 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:21007
CRL.A No. 439 of 2012
C/W CRL.A No. 373 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 439 OF 2012
CONNECTED WITH
CRIMINAL APPEAL NO. 373 OF 2012
IN CRIMINAL APPEAL NO. 439 OF 2012
BETWEEN:
1. SRI S V MANJUNATH
S/O S T VENKATASWAMY
AGED ABOUT 28 YEARS,
R/O VADAVANAGHATTA,
MAYASANDRA HOBLI,
TURUVEKERE TALUK,
TUMKUR DISTRICT
...APPELLANT
(BY SRI. K.M. SOMASHEKARA, ADVOCATE)
AND:
1. STATE BY
Digitally signed by
BHAVANI BAI G TURUVEKERE POLICE
Location: High
Court of Karnataka
TUMKUR
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH CORUT BUILDING,
BANGALORE - 560 001
...RESPONDENT
(BY SRI. S. VISHWAMURHTY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED:28.2.12 PASSED
BY THE P.O., FTC, TIPTUR IN CRL.A.NO.134/10 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 419 OF IPC READ WITH SECTION 118 OF THE EDUCATION
ACT 1983, ETC.
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NC: 2023:KHC:21007
CRL.A No. 439 of 2012
C/W CRL.A No. 373 of 2012
IN CRIMINAL APPEAL NO. 373 OF 2012
BETWEEN:
1. SRI B S SURESHA
AGED ABOUT 24 YEARS,
S/O SHANKAREGOWDA,
R/O BYDARAHALLI
MAYASANDRA HOBLI,
TURUVEKERE TALUK,
PRESENTLY R/AT
C.O.JAVARAPPA,
ANGADIGERE
MAYASANDRA HOBLI,
TURUVEKERE TALUK,
TUMKUR DISTRICT
...APPELLANT
(BY SRI. K.M. SOMASHEKARA, ADVOCATE)
AND:
1. STATE BY
TURUVEKERE POLICE
TUMKUR REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE - 560 001
...RESPONDENT
(BY SRI. S. VISHWAMURHTY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 397 READ
WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND SENTENCE PASSED BY THE P.O., FTC, TIPTUR
DATED 28.02.2012 IN CRL.A.NO.134/2010 SO FAR AS PETITIONER
IS CONCERNED, CONSEQUENTLY CONFIRM THE JUDGMENT PASSED
BY THE CJ (SR.DN.) AND JMFC, TURUVEKERE, DATED 31.7.2010 IN
C.C.NO.184/2007 AND PASS SUCH OTHER ORDERS WHICH ARE
DEEMED TO BE FIT IN NATURE AND CIRCUMSTANCE OF THE CASE.
THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:21007
CRL.A No. 439 of 2012
C/W CRL.A No. 373 of 2012
JUDGMENT
This appeal is filed by the appellants-accused Nos.1 and 2 under Section 374(2) of Cr.P.C., for setting aside the judgment of conviction and order of sentence passed by the Fast Track Court, Tiptur in Crl.A.No.134/2010 for reversing the judgment of acquittal passed by the Civil Judge and JMFC, Turuvekere in C.C.No.184/2006 dated 31.07.2010 whereby the First Appellate Court convicted the appellants to undergo rigorous imprisonment for 1 year and to pay fine of Rs.10,000/- in default of payment of fine, to undergo simple imprisonment for further period of three months for the offence punishable under Section 419 of Indian Penal Code, 1860 (for short 'IPC') and further sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.2,000/-, in default of payment of fine, to undergo simple imprisonment for further period of one month for the offence punishable under Section 118 of the Karnataka Education Act, 1983 (for short 'K.E. Act').
2. Heard Ms. Nandini, the learned counsel appeared for the appellants and learned High Court Government Pleader for the respondent-State.
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NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the prosecution is that that on 11.07.2005, the accused No.1-Suresha said to be found writing the English Supplementary Examination for II P.U.C. conducted at Room No.4 at Government Pre-University College, Turuvekere on behalf of accused No.2 who is the actual candidate. The same was caught red handed by PW.1 who is the room invigilator and taken him to PW.2-Chandraiah who is the Superintendent of the examination. Then the accused No.1 was brought before PW.3-Marimadaiah, the Principal of the said Government PU College. Then, accused No.1 was taken to the Police Station and PW.3 lodged complaint as per Ex.P.7. In turn, PW.8-Keerthi Kumar registered the FIR as per Ex.P.12 and arrested accused No.1 and later arrested accused No.2, investigated the matter and filed the charge sheet for the offence punishable under Sections 419 and 109 of IPC and Section 118 of K.E. Act. The accused pleaded not guilty and claimed to be tried. The prosecution examined 10 witnesses as per P.Ws.1 to 10 and got marked 20 documents as per Exs.P.1 to P.20. After completion of the evidence, statement of the -5- NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 accused was recorded under Section 313 of Cr.P.C. The case of the accused was one of the total denial, but not entered into any defence. After hearing the arguments, the trial Court found the accused not guilty and acquitted them for the charges vide order dated 31.07.2010. Being aggrieved by the same, the State preferred an appeal before the Fast Track Court, where the First Appellate Court after hearing the arguments, reversed the finding and convicted accused Nos.1 and 2 for the offence punishable under Section 419 of IPC and Section 118 of the K.E. Act and sentenced to undergo imprisonment as stated above. Being aggrieved with the same, the appellants are before this Court.
5. Learned counsel for the appellants has contended that the appellants are innocent of the alleged offence. Once the trial Court acquitted the appellants, there is a double degree of presumption available in favour of the appellants. The same was not properly considered by the First Appellate Court while reversing the judgment. The judgment shall be reversed only if the findings are perverse or baseless without any proper reason. Even otherwise, while finding guilty, the First Appellate Court ought to have given an opportunity for -6- NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 hearing the appellant on sentence, but that was not considered. During the absence of the appellants before the First Appellate Court, the judgment was delivered and sentence was awarded. The learned counsel also contended that even otherwise, the age of the appellants were less than 21 years at the time of incident. The First Appellate Court ought to have considered the Probation of Offenders Act, 1958 (for short 'P.O. Act') which is applicable to Section 4 of the P.O. Act, they could have released on due admonition, but the same was not at all considered while passing the judgment. Therefore, prayed for setting aside the same.
6. Learned counsel also contended that if any case, this Court found the appellants guilty, then the appellants are entitled for the benefit of Sections 3 and 4 of the P.O. Act.
7. Per contra, the learned High Court Government Pleader supported the judgment of the First Appellate Court and contended that the evidence of PWs.1 and 3 corroborates with the evidence of PW.8 who is the Investigating Officer who investigated the matter and PW.10 who is the Scientific Officer gave the report as per Ex.P.18 after comparison of the hand -7- NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 writing of accused Nos.1 and 2. There was impersonation by accused No.1 that he was writing the examination on behalf of accused No.2 and he was caught red handed. Therefore, merely the independent panch witnesses have turned hostile that cannot be a ground for disbelieving their evidence and on the other hand, the evidences of Principal and lecturers of the College of the accused were all stated that accused No.2 was the student and accused No.1 was found writing examination on his behalf as per the evidence of PWs.1 and 2. Therefore, it is contended that the First Appellate Court has rightly found the accused guilty and convicted. However, the learned High Court Government Pleader clearly admitted that the First Appellate Court not considered for releasing the appellants on P.O. Act, but passed the sentence.
8. Having heard the arguments and on perusal of the records, the points that arise for my consideration are:
"1) Whether the First Appellate Court committed error in reversing the findings of the trial Court and convicting the appellants for the offence punishable under Section 419 of IPC and Section 118 of K.E. Act ?-8-
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2) Whether the judgment and sentence passed by the First Appellate Court call for interference?"
9. Before appreciating the evidence on record, it is worth to mention the evidence adduced by the prosecution witnesses.
(a) PW.1-M.N. Ramaiah, is the Invigilator who was deputed to the Government P.U. College, Turuvekere on 11.07.2005 to Room No.4 and he has given evidence that when he has invigilating the room, he found the accused No.1 was writing the examination in the name of accused No.2. The name of accused No.1 was Suresha but he was writing examination on behalf of accused No.2-Manjunath. Accordingly, he has collected the ID card, Admission Ticket, the Diary and the answer sheet of the accused and taken to the PW.2-Chandraiah who is the Superintendent of the Examination. This witness clearly speaks about the seizure of Exs.P.1 to 4 i.e., ID Card, Admission ticket, Diary and answer sheet written by accused No.1. Later, he was taken to the PW.3 and in turn, PW.3 lodged the complaint. Except denial, nothing has been elicited by the learned counsel for the -9- NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 accused for disbelieving the evidence of PW.1 in respect of accused No.1 who found writing examination in the place of accused No.2.
(b) PW.2-M.Chandraiah, Superintendent of Examination also given evidence that PW.1 came to him and complained against accused No.1 who was caught red handed. Then, he went to PW.2, in turn, they lodged complaint to the Police. The Police prepared the panchanama as per Ex.P.5 and seized the materials i.e., the answer sheet, ID card, Admission card under the panchanama-Ex.P.6.
(c) PW.3-S.Marimadaiah, the Principal of the college also deposed that PWs.1 and 2 came and complained to him and brought the accused No.1 along with the answer script etc. Then he took accused No.1 to the Police Station and lodged complaint as per Ex.P.7. He has categorically stated that the accused No.1 was writing the examination in the name of accused No.2.
(d) PW.4-B.Y.Thimmegowda, who is the lecturer of the college where accused No.2 was studying. He also identified that accused No.2 as a student and he also acted as panch
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NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 witness to the seizure panchanama where the police seized the answer sheet, admission ticket etc. This witness also identified Ex.P.6 and given evidence in favour of the prosecution case.
(e) PW.5-Manu, the another student who was writing examination at Room No.4 where accused No.1 was caught red handed. He has turned hostile and not supported the case of the prosecution.
(f) PW.6-Junjaiah, who is the Principal of the college where he was deputed to the College for examination purpose.
(g) PW.7-Kunte Gowda is the in-charge Principal of Nehru College where accused No.2 was a student. He has only identified that accused No.2 was the student of the college and he has to write examination in English paper on 11.07.2005.
(h) PW.8-C.M.Keethikumar, the Police Officer who received the complaint from PW.3 as per Ex.P.7 and registered the FIR as per Ex.P.12 and investigated the matter and filed the charge sheet.
(j) PW.9-R.Manjunath is the witness who turned totally hostile and not supported the prosecution case.
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(k) PW.10-M.Shankarappa is the Scientific Officer who received the articles from the Police regarding questioned and admitted documents containing handwritings of both the accused. He has given report as per Ex.P.18.
10. On perusal of the entire evidence on record, though the seizure panch witness, PW.5 turned hostile, but the evidence of PWs.1 to 3 who are the lecturer deputed for the invigilation, supervision and also Principal of the said college where accused No.1 was caught red handed while found writing the English examination on behalf of accused No.2. They seized Exs.P.1 to P.4 from him. The evidence of PWs.1 to 3 clearly corroborates with each other in respect of seizure and apprehending the accused while writing examination. The evidence of this witness corroborates with the evidence of PW.8-Investigating Officer and PW.10-the Scientific Officer who gave the report and the hand writing of accused No.1 adduced on the Ex.P.4 which differs from appreciated hand writing of accused No.2. He has given report on the same. Of course, the seizure panch witnesses have turned hostile, but they identified by the accused No.2 by the very college Principal-
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NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 PWs.6 and 8 belong to accused No.2 who supposed to write examination on 11.07.2005, but accused No.1 found writing on his behalf and caught red handed as per evidence of PWs1 to 3. Therefore, these evidence corroborates with each other in order to prove the case of the prosecution that accused No.1 was found writing examination on behalf of accused No.2. Thereby, he has impersonated the accused No.2 and caught red handed and thereby, he has committed the offence punishable under Section 419 of IPC. Of course, Section 118 of K.E. Act also same where the accused No.2 also responsible for sending accused No.1 for writing the examination. The trial Court only has considered the panch witnesses who have not supported the case and thereby proceeded to acquit the accused where the First Appellate Court while re-appreciating the evidence on record has rightly come to the conclusion that the prosecution is successful in proving the guilt of the accused and reversing the judgment of acquittal.
11. However, the First Appellate Court though found the accused guilty and passed the sentence by furnishing the judgment, but there is no discussion in the judgment after finding the guilty in order to invoke Sections 3 and 4 of the P.O.
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NC: 2023:KHC:21007 CRL.A No. 439 of 2012 C/W CRL.A No. 373 of 2012 Act and denial of the benefit of due admonition, the First Appellate Court could have passed the sentence sending to jail. No such discussion was made by the First Appellate Court by giving finding in the Point No.1 or Point No.2. It is well settled by the Hon'ble Supreme Court and the provisions of law, while passing the judgment, if the Court not inclined to extend the benefit under Section 360 of Cr.P.C. or Sections 3 and 4 of the P.O. Act, then only the Court should proceed to pass the sentence. Of course the First Appellate Court not kept pending for hearing on sentence but directly passed the sentence which is not correct. Therefore, without considering Sections 3 and 4 of the P.O Act, passing the sentence is not correct. Therefore, sentence passed by the Trial Court required to be set aside.
12. However, the incident was took place long back in the year 2005, almost 18 years lapsed and there is no complaint against these appellants that they have committed any offences subsequent to the commission of this offence and their age is also below 21 years which is not disputed by the prosecution. Therefore, the Court feels to extend the benefit of Section 4 of the P.O. Act and they shall be released on due admonition.
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13. Accordingly I proceed to pass the following order:
The appeal is allowed in part.
With regard to the findings of conviction passed by the First Appellate Court in Crl.A.No.134/2010 is hereby confirmed. However, the sentence passed by the First Appellate Court in Crl.A.No.134/2010 is hereby set aside. The appellants are released on due admonition under Section 4 of the P.O. Act and they shall execute personal bond for Rs.10,000/- with a surety before the Trial Court for one year.
Office to send the records to the Trial Court along with the copy of the judgment to take further course of action.
Sd/-
JUDGE GBB List No.: 1 Sl No.: 22