Bangalore District Court
The State By Sho vs Nouman S/O Abdul Rehaman Khan on 21 September, 2021
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Present
Sri.Patil Veeranagouda S.,
B.Com. LL.M.
VIII ADDL.C.M.M., BENGALURU.
Dated this the 21st Day of September, 2021
C.C. NO.9247/2013
Complainant:
The State by SHO
Kalasipalya PS
(By Sr. Assistant Public Prosecutor)
Versus
Accused:
1. Nouman s/o Abdul Rehaman Khan
Age: 19 years, R/at No.27
Dispensary Road, Kalasipalya
Bengaluru. C/o Abdul Razak
No.198/16, Mico Layout
BTM I Stage, Bengaluru.
2. Tippu Sultan s/o Abdul Razak
Age 21 years, R/at No.198/16,
Mico Layout, BTM I Stage,
Bengaluru.
(By Sri.Sudhindra Murthy, Advocate)
2 C.C.No.9247/2013
PARTICULARS U/S 355 OF THE Cr.P.C. 1973
1. Sl. No. of the Case 9247/2013
2. The date of commission 12072012
of the offence
3. Name of the complainant Asha Srinivas
4. Name of the accused Nouman and another
5. The offences complained U/s. 419, r/w 34 of IPC and
of or proved 118 of Karnataka Eduction
Act 1983
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused No.1 and 2 are
acquitted
8. Date of order 21092021
JUDGMENT
This case is arising out of charge sheet submitted by the SHO of Kalasipalya PS against the accused No.1 and 2 for the 3 C.C.No.9247/2013 offence Punishable U/s. 419 of IPC and 118 of Karnataka Eduction Act 1983 r/w 34 of IPC.
2. The prosecution case is that on 12072012 in between 9.00 a.m., and 12.00 p.m., accused No.1 by personating the accused No.2 attended and wrote the Hindi Examination of PUC II Year at Vanivilas Institute, Bengaluru. Accordingly, CW1 lodged first information statement before the Kalasipalya Police. The said police have registered the case and issued FIR against the accused. After investigation the IO has filed the charge sheet against both the accused.
3. After taking the cognizance, this Court has issued summons to both the accused. In pursuance of the summons accused No.1 and 2 appeared and obtained bail. 4 C.C.No.9247/2013
4. The prosecution papers were furnished to both the accused in compliance of section 207 of Cr.P.C. After hearing both the side the charges were framed and the contents of charges were read over to them and they pleaded not guilty and claimed to be tried, so the case was posted for trial.
5. In order to prove its case the prosecution has examined 6 witnesses as PW1 to 6, got marked 11 documents as per Ex.P.1 to 11. The learned Sr.APP given up CW6. In spite of coercive steps taken by this court the prosecution has not secured CW7 to 9 and 11. By observing so, the prosecution side evidence taken as closed.
6. The accused No.1 and 2 were examined U/Sec. 313 of Cr.P.C. to enable them to explain the incriminating evidence appeared against them in the evidence of prosecution 5 C.C.No.9247/2013 witnesses. They denied the same and not chosen to lead their defence evidence.
7. Heard both sides and perused the material available on record, the points that arise for my determination are;
1. Whether the prosecution proved beyond all reasonable doubt that on 12.07.2012 in between 9.00 a.m., and 12.00 p.m., accused No.1 by impersonating as accused no.2 attended and wrote the Hindi Examination of PUC II Year at Vanivilas Institute, Bengaluru and cheated thereby committed the offences punishable U/sec.419 of IPC and Sec.118 of Karnataka Education Act 1983 and r/w 34 of IPC?
2. What order?
8. My findings on the above points are as under:
Point No.1 : In the negative
6 C.C.No.9247/2013
Point No.2 : As per final order for the following:
REASONS
9. Point No.1: In order to prove its case the prosecution examined the first informant as PW1, the mahazar witnesses as PW2 and 4, the invigilator who found impersonating accused as PW3, the invigilator of another examination hall as PW5, the police official who brought the accused No.2 as PW6.
10. The PW1 being the Principal of the said College has deposed as per the case of the prosecution and lodging of first information statement as per Ex.P1 and conducting of mahazar by the police as per Ex.P2 on the date of incident at 5.30 p.m., to 6.30 p.m. She also deposed that along with her letter as per Ex.P3 she has furnished several documents, which are hall ticket No.556383 as per Ex.P4, Hindi Question Paper as per Ex.P5, the answer paper written by accused No.1 as per Ex.P6, 7 C.C.No.9247/2013 the letter showing the name and address of the invigilator deputed in the said examination hall as per Ex.P7 and the sheet containing supply of answer sheet and additional sheets to the students in the said examination hall as per Ex.P8. She also identified the report given by examination vigilance squad as per Ex.P9 and the copy of confession letter executed by accused No.1 as per Ex.P10.
11. During the cross examination she admitted that she has not stated to the police about the confession letter executed by accused No.1 and the documents produced by her. She also admitted that she has not written in first information statement that she has personally saw while accused No.1 was writing the exam by impersonating accused No.2.
12. PW2 and PW4 stated about the case of the prosecution and drawing of panchanama in their presence as per Ex.P2. 8 C.C.No.9247/2013 Though PW4 not stated about the conducting of mahazar initially but after treating him hostile by Sr.APP and cross examined, then he admitted about conducting of said mahazar. During the cross examination he admitted that he put his signature at the police station. But in the cross examination nothing worth was elicited from the mouth of PW2.
13. PW3 is the main witness deposed as per the case of the prosecution and she has identified the accused in the examination hall and thereafter he informed the sitting squad and after verifying the record the squad and herself has caught hold the accused No.1 and informed the same to PW1, she also identified her signatures on Ex.P4, P6, P8 and P9. She has also identified the accused. Though she was crossexamined but nothing worth was elicited from her mouth.
9 C.C.No.9247/2013
14. PW5 being the invigilator of another examination hall has also supported the case of the prosecution and also identified the accused No.1 before the court. Though he was also cross examined but nothing worth was elicited from his mouth so as to disbelieve his version.
15. PW6 being the then Police Constable of Kalasipalya Police Station has deposed that as per the direction of CW11 he went along with accused No.1 and traced out the accused No.2 at his home and brought him and produced before CW11 and gave his report as per Ex.P11. In the cross examination nothing worth was elicited from his mouth.
16. In the above evidence barring some minor contradictions the entire evidence is very much consistent and also the PW3 has very well identified the accused before the court. Here the unfortunate thing is that the CW9 being the hand writing 10 C.C.No.9247/2013 expert has given his report but said report was neither marked nor the prosecution has secured him. Apart from that the prosecution has also not secured the CW11 who is the IO in this case and not got examined him. Even the first information report which sets the criminal law into motion has not been marked by examining the IO. If at all the CW9 and 11 were secured and got examined, then it will definitely helpful for the prosecution in proving its case.
17. The concerned police have not secured the CW9 and 11 despite taking coercive steps but even then the prosecution has not made any effort to secure those witnesses by filing necessary application even after they were dropped by this court. At this juncture the counsel for the accused has relied upon the decision of Hon'ble Apex Court reported in 2008(4) Crimes 197 Kapil Deo Sinha v/s. Kirandeo Prasad & Anr., 11 C.C.No.9247/2013 wherein it is observed that neither the IO nor the Doctor have been examined and no reason has been indicated as to why they were not examined. Therefore, on account of non examination of the IO and the Doctor the Hon'ble Apex Court confirmed the order of acquittal.
18. Here also the hand writing expert who has given his report stating that the questioned hand writings and the admitted hand writings are of the same person but that report was not at all proved by the prosecution either by exhibiting it or by examining the CW9 who has issued the said report. Apart from that, the IO is also the material witness in this case who has not been examined by the prosecution despite giving sufficient opportunity by this court. Therefore, though the facts of this case and the facts of the relied decision are different but the ratio held therein is aptly applicable to the present case. 12 C.C.No.9247/2013
19. So, non examination of CW9 the hand writing expert and CW11 the IO is definitely fatal to the prosecution case. Without their evidence the prosecution is not able to prove its case. Considering all these aspects of the case and in totality of circumstances, I am of the firm view that the prosecution has failed to prove its case beyond all reasonable doubt. Therefore, the accused No.1 and 2 are entitled for benefit of doubt. Hence, I answer the above point in the negative.
20. Point No.2: For the foregoing discussion and my findings to the above points, I proceed to pass the following:
ORDER Accused No.1 and 2 are hereby acquitted of the offences punishable U/s. 419 of IPC and 118 of 13 C.C.No.9247/2013 Karnataka Eduction Act 1983 r/w 34 of IPC by acting under Section 248 (1) of Cr.P.C.
Their bail bonds stand cancelled. However, in view of Section 437A of Cr.P.C the same shall be in force for 6 (six) months.
(Dictated to the stenographer directly on the computer, verified and corrected by me, then the judgment pronounced by me in the open court, on this 21st day of September 2021.) (Patil Veeranagouda S.) VIII Addl. CMM, BENGALURU ANNEXURE
1. Witnesses examined for the prosecution :
P.W.1 : Asha Srinivas w/o Dr.S.Srinivas Murthy P.W.2 : Vidya Hegade w/o Kumar P.W.3 : Lokesh s/o Krishnappa P.W.4 : Ramegowda s/o Sannegowda P.W.5 : Iliyas Khan s/o Peer Ahamad 14 C.C.No.9247/2013
2. Documents marked on behalf of the prosecution:
Ex.P1 : First Information Ex.P1(a) : Signature of P.W.1 Ex.P2 : Mahazar Ex.P2(a) : Signature of PW1 Ex.P2(b) : Signature of PW2 Ex.P3 : Covering Letter issued by PW1 Ex.P3(a) : Signature of PW1 Ex.P4 : Hall Ticket Ex.P4(a) : Signature of PW3 Ex.P5 : Question Paper Ex.P6 : Answer Sheet Ex.P6(a) : Signature of PW3 Ex.P7 : Information issued by PW1 Ex.P7(a) : Signature of PW1 Ex.P8 : Invigilator Dairy Ex.P8(a) : Signature of PW3 Ex.P9 : Copy of the Report of Vigilance Ex.P9(a) : Signature of PW3 Ex.P10 : Copy of confession letter of A1 Ex.P11 : Report of PW6
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL VIII Addl. C. M. M. Bengaluru 15 C.C.No.9247/2013 Judgment pronounced in the open court vide separately ORDER Accused No.1 and 2 are hereby acquitted of the offences punishable U/s. 419 of IPC and 118 of Karnataka Eduction Act 1983 r/w 34 of IPC by acting under Section 248 (1) of Cr.P.C.
Their bail bonds stand cancelled. However, in view of Section 437A of Cr.P.C the same shall be in force for 6 (six) months.16 C.C.No.9247/2013
VIII Addl. C. M. M. Bangalore.