Karnataka High Court
Sri M N Chinnaiah vs State Of Karnataka on 15 December, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
R
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.693 OF 2010
BETWEEN:
1. SRI. M.N. CHINNAIAH
S/O LATE G. NAGAIAH
AGED ABOUT 50 YEARS
R/O B-10, P & T STAFF QUARTERS
2ND BLOCK, P & T ROAD,
RAJAJI NAGAR,
BANGALORE-560010.
2. S. CHANDRASHEKAR
S/O P. SOMAPPA
AGED 44 YEARS
R/A NO.363/1, 1ST MAIN
1ST CROSS, FORT
KOLAR-56101. ... APPELLANTS
[BY SRI. SANDESH J CHOUTA, SENIOR ADVOCATE,
FOR SRI. V.G.BHANUPRAKASH ADVOCATE.]
AND:
STATE OF KARNATAKA
THROUGH THE MEDIGESHI POLICE
MADHUGIRI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE. ... RESPONDENT
[BY SRI. P. PRASANNA KUMAR, SPL. P.P.]
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***
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING
TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE COURT OF XXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR CBI CASES, BANGALORE, DATED
30.06.2010 IN SPL.C.C. NO.149/2004 WHEREIN CONVICTING THE
APPELLANTS AND SENTENCING THEM FOR OFFENCE PUNISHABLE U/SECS.
120-B AND 420 IPC AND U/SECS. 13(2) R/W 13(1)(d) OF PREVENTION OF
CORRUPTION ACT, 1988.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 29.09.2020, COMING ON FOR PRONOUNCMENT OF JUDGMENT THROUGH
VIDEO CONFERENCE AT DHARWAD BENCH, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the accused/appellants challenging their conviction and sentence passed in SPl.CC No.149/2004 on the file of the Court of XXI Addl. City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore, wherein, accused No.1 was convicted for offences punishable under Sections 120-B and 420 of IPC and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and accused No.2 was convicted for offences punishable under Sections 120-B, 419, 420 and 468 of IPC.
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2. The factual matrix of the prosecution case are as under:
Sri. M.N. Chinnaiah-Accused No.1 was working as Wireman (Electrical) at the office of the Assistant Engineer, Telecom Electrical Sub-Division-II, Bangalore-32. He had appeared in the Departmental Examination for the post of Junior Telecom Officer (JTO) thrice, but failed in the examination. During February 2000, on coming to know that there was a notification calling for the departmental candidates for JTO promotion test, with a fraudulent and dishonest intention to cheat the Telecom Department, he entered into a criminal conspiracy with one Sri. S. Chandrashekar, Accused No.2, an unemployed engineering graduate and persuaded him to impersonate him and write the qualifying examination of the department in his name, for securing admission to the post of JTO. In furtherance of the said criminal conspiracy entered between them, accused No.2 agreed to impersonate accused No.1 and collected the hall permit from him one week prior to examination and 4 practiced to forge his signature. Accused No.2 appeared for four examinations on behalf of accused No.1 by impersonating him by forging the signatures of accused No.1 on the attendance sheet issued by the invigilator and wrote the examinations conducted in Room No.III at St. Joseph's Boys High School, Museum Road, Bangalore, on 16 t h and 17 t h September, 2000 vide Roll No.KNT/JTO-15/2000-1393, taking advantage that there was no photo identity card system.
After the declaration of the results, accused No.1 came to know that he had failed in Mathematics subject, hence, he remitted a fee of Rs.100/- for re-totaling, as a result he was declared pass and later on attended JTO training course at Regional Telecom Training Centre, Mysore, during which period the fraud committed by him came to light and he was sent back in the cadre of Wireman to his previous office. After a preliminary enquiry, the writings of accused No.1 were obtained and sent along with the answer sheets to the Government Examiner of Questioned Documents [GEQD], 5 who opined that the said examination answer books were not written by accused No.1. Thereafter, on a complaint lodged by the Deputy General Manager, Vigilance, to the Superintendent of Police, CBI/ACB, investigation was taken up and on completion of the same, charge-sheet was filed against accused Nos.1 and 2.
Charges were framed against accused Nos.1 and 2 for offences punishable under Sections 120-B and 420 of IPC, against accused No.2 for offences punishable under Sections 419 and 468 of IPC and against accused No.1 for offences punishable under Sections 13(2) r/w 13(1)(d) of P.C. Act, 1989.
To establish the guilt of the accused, the prosecution got examined PWs1 to 11 and got marked Exs.P1 to P66. The defence got marked Ex.D1 but did not choose to lead any defence evidence.
The trial Court by its Judgment and Order dated 30.06.2010 passed in Spl.C.C. No.149/2004 convicted and sentenced the accused for the charged offences. 6
For the offence punishable under Sections 120-B and 420 of IPC, Accused No.1 and 2 were sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.5000/- each and in default of payment of fine, sentenced to undergo simple imprisonment for four months.
For the offence under Section 13(2) read with 13(1)(d) of the PC Act, 1988, accused No.1 was sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.10,000/-, in default of payment of fine, sentenced to undergo simple imprisonment for six months.
For the offence under Section 419 of IPC, accused No.2 was sentenced to undergo simple imprisonment for one year and for the offence under Section 468 of IPC, he was sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo simple imprisonment for six months. 7
3. Assailing the impugned Judgment and Order passed by the trial Court, learned Senior Counsel appearing for the accused/appellants has contended as under:
The approach of the trial court and the conclusion arrived at is contrary to law, facts of the case and weight of evidence. The trial Court has failed to scrutinize and appreciate the evidence on record by adopting the standards adopted by the judicial forums. The conviction passed on the evidence of interested witnesses without considering the effect of cross-examination is bad in law. The finding of the trial Court that accused No.2 impersonated accused No.1 and wrote the departmental examination is contrary to the evidence on record. The prosecution has failed to lead any cogent or unimpeachable evidence with regard to alleged impersonation by accused No.2.
4. The learned senior counsel has further contended that the trial Court has erred in construing Ex.P25 to be in the nature of a voluntary statement made by accused No.1 and erred in giving emphasis to the said statement without 8 considering the defence plea that the said exhibit had been forcibly obtained for creating evidence against him. There has been no comparison in the specimen handwriting of accused No.2 with the handwriting of accused No.1. There is no independent investigation conducted by the Investigating Officer by obtaining the specimen handwriting of accused No.1. The alleged specimen writing of Accused No.1 is not taken in accordance with law. Therefore, it is not admissible in evidence.
5. The learned Senior Counsel has further contended that after an inordinate delay of four years, cheating and criminal misconduct has been alleged. The delay in the registration of complaint itself indicate that the entire averments have been made at the behest of some persons inimically disposed against the accused. The persons who gave the information are not examined and preliminary enquiry report is not produced and marked. One Gururajan, Assistant GM, R & E has been intentionally withheld from giving evidence. Therefore, the learned senior counsel 9 contends that the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt and the tria l Court has failed to properly appreciate the evidence on record and seeks to set-aside the impugned judgment and order passed by the trail Court by allowing the appeal.
6. In support of his contentions, the learned senior counsel has relied on the following decisions:
1) [1994]5 SCC 152:
[Sukhvinder Singh and others Vs. State of Punjab]
2) 2012 SCC Online Del 3078:
[Sapan Haldar & Anr. Vs. State]
3) 1989 Supp [2] SCC 706:
[Padala Veera Reddy Vs. State of Andhra Pradesh and others]
4) [2012]6 SCC 403:
[Sahadevan and another Vs. State of Tamil Nadu]
5) AIR 1957 SC 381:
[Ram Chandra and another Vs. State of U.P.]
6) AIR 1963 SC 1728[1]:
[Ishwari Prasad Misra Vs. Mohammad Isa]
7) AIR 1964 SC 529:
[Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others] 10
8) [1977]2 SCC 210:
[Magan Bihari Lal Vs.The state of Punjab]
9) [1979]2 SCC 158:
[The State [Delhi Administration] Vs. Pali Ram
10) [2003] 1 SCC 21:
[Alamgir Vs. State [NCT.DELHI]
11) [2008]4 SCC 530:
[Thiruvengadam Pillai Vs.Navaneethammal and another]
12) AIR 2016 SC 4486:
[S.P.S. Rathore Vs. C.B.I. and Anr.]
13) Criminal Appeal No.121 of 2003, dated 04.04.2006, High Court of Judicature at Madras:
[John Pandian Vs.State]
7. Per contra, the learned Counsel appearing for respondent-CBI has contended as under:
Accused No.1 who was working as Wireman (Electrical), with a fraudulent and dishonest intention, by abusing his official position, has conspired with accused No.2 and cheated the Telecom Department. Accused No.2, a private person, at the instigation of accused No.1 has impersonated him and wrote the four examinations conducted by the 11 Department taking advantage that there was no photo identity card system for the examinations. When accused No.1 attended the JTO training course, cheating committed came to light. PW6, working as DGM, Vigilance, Karnataka Telecom Circle before whom accused No.1 gave confessional statement as per Ex.P25, having prima facie satisfied, has taken due care to send the specimen handwriting of accused No.1 to Government Agency. Further, the specimen handwriting of accused No.2 was taken during investigation by the investigating officer. The handwriting expert-PW10 has given the opinion which supports the prosecution. In the statement recorded under Section 313 of Cr.P.C., accused No.1 has not alleged that his statement as per Ex.P25 was forcibly taken. As such, he cannot feel remorse for having given such statement before PW6.
8. The learned counsel has further contended that when there is no failure of justice, conviction and sentence passed by the trial Court cannot be reversed. The trial Court having appreciated the entire evidence in its proper 12 perspective has rightly convicted the accused for the charged offences. There is no illegality committed by the trial Court to reverse the findings recorded therein. Accordingly, he seeks to dismiss the appeal.
9. In support of his contentions, the learned counsel has placed reliance on the following decisions:
1) [2016]14 SCC 183:
[Sukh Ram Vs. State of Himachal Pradesh]
2) [2012]6 SCC 403:
[Sahadevan and another Vs. State of Tamil Nadu]
3) [1994]6 SCC 308:
[Vijay Alias Gyan Chand Jain Vs. State of M.P.]
4) [2019]14 SCC 220:
[Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy [Dead] through legal representatives and another]
5) Crl.A.No.245 of 2008, Decided on 26.08.2009 High Court of Madras: [Manickam Vs. State]
10. Having heard the learned counsel for both the parties and having carefully examined the material on record, the following points arise for my consideration: 13
1) Whether the prosecution has established the charges leveled against the appellants/accused Nos.1 and 2 beyond reasonable doubt?
2) Whether the impugned Judgment and Order
passed by the trial Court calls for any
interference?
3) What Order?
11. Sanction order to prosecute accused No.1 is issued by P.W.2. He has stated that he was working as Superintendent Engineer, BSNL., Electric Circle, Bengaluru and he was the competent authority under the Central Civil Services Control, Conduct and Appeal Rules 1964, for according sanction for prosecution of a Wireman working in that Circle. Ex.P2 is the sanction order. P.W.2 has stated that before according sanction, he examined the FIR., Statement of witnesses, material documents produced by the CBI and he passed the sanction order applying his mind. In the cross-examination he has stated that, after passing the sanction order, he sent the same along with the documents 14 to the S.P., CBI. He has denied the suggestion that he did not receive the documents either from CBI or from CGM before passing the sanction order-Ex.P2. There is nothing elicited in the cross-examination that either he was not the competent authority to accord sanction as per Ex.P2 or that the sanction order was passed mechanically without application of mind.
12. The defence has not seriously disputed the sanction order at Ex.P2, issued by P.W.2 to prosecute accused No.1. Accused No.1 was working as Wireman [Electrical] at the Office of the Assistant Engineer, Telecom Electrical Sub-Division II. Hence, in view of the evidence of P.W.2 there is no dispute that he was competent to accord sanction as per Ex.P2, to prosecute accused No.1, a public servant.
13. P.W.1 was working as an Executive Engineer, Electrical Division in Bangalore Telecom in BSNL. He has stated that accused No.1 was working as Wireman at Electric Maintenance Office, P & T Quarters Campus, Rajajinagara, 15 Bengaluru, during the year 2000. He has stated that Ex.P1 is the application form submitted by accused No.1 for taking departmental examination on 27.03.2000 and he forwarded that application to the office of the Chief General Manager, Telecom, Ulsoor, Bengaluru. He has stated that Ex.P1(a) is the signature of accused No.1 and he has signed on Ex.P1 as per Ex.P1(b).
14. P.W.3, Assistant General Manager, Recruitment and Examination has deposed regarding the recruitment process for the post of Junior Telecom Officer and also regarding the revised time-
table issued to conduct the departmental examination on 16th and 17th day of September, 2000. He has stated that in respect of 93 posts of the Junior Telecom Officers, over 1475 applications were received and only 1350 applications were found valid and the remaining were rejected. Five persons from to SC/ST categories were declared to have passed the departmental examination after review of results and the name of accused No.1 is at Sl. No.2 in the document dated 24.05.2002 regarding review of results, marked as Ex.P12. He has stated that at the time of departmental examination, accused No.1 16 was attached to Telecom Unit-II and his Roll No. was K&T/JTO/15/2000/1393. He has stated about the hall permit issued to accused No.1 through his official superior and stated about the signatures of the candidates who attended the departmental examination, on the attendance sheet. Ex.P14 is the attendance sheet pertaining to roll No.1369 to 1399.
15. P.W.4 working as Sub-Divisional Engineer [Electrical], BSNL Sub-Division [Electrical-VI] has also stated that accused No.1 took the departmental examination in order to get promotion as J.T.O. under reservation quota. He has identified the hall ticket issued to accused No.1 for taking departmental examination, which is marked as Ex.P13. He has stated that the said hall permit was issued from the office of the Chief General Manager [R & E], Bengaluru, and accused No.1 while receiving the said hall permit signed in his presence as per Ex.P13(a) and he signed as per Ex.P13(b). He has stated that accused No.1 applied for re-totaling of the marks in respect of 17 mathematics paper and he forwarded the said application to the Engineer.
16. P.W.5 was working as Accounts Officer in the Office of the Area Manager, North-East BSNL. He was appointed as an Invigilator during the departmental examination held on 16th and 17th of September, 2000. He has stated about the attendance sheet containing the candidates roll No.1369 to 1399. He has stated that Sl. No.1393 pertains to accused No.1-Chinnaiah.
17. P.W.5 has stated that in the hall permit, the photographs of the candidates who have permitted to take examination have not been affixed and he has verified the identity of the candidates with reference to the hall permit and obtained the signatures of the candidates. He has specifically stated that at the time of obtaining the signature of the person who was answering the examination paper at the place meant for Roll No.1393 in the said examination hall, he did not get any doubt when he saw the signatures in the hall permit of the said roll number. Even in the cross-examination, he has re-iterated the same. It is pertinent to note that P.W.5 in his evidence has not stated that accused No.1 was not the person who wrote the 18 examination or that it was accused No.2 who wrote the examinations conducted on 16th and 17th September, 2000. He has not identified accused No.2 as the person who wrote the four examinations held on 16th and 17th September, 2000.
18. P.W.6 is the complainant. He was working as Deputy General Manager [Vig.]. Complaint dated 02.09.2003 sent to Superintendent of Police, CBI/ACB is marked as Ex.P38. In the complaint it is stated that a case of impersonation by accused No.1 came to light during investigation of the case, wherein he had secured admission to the post of Junior Telecom Officer by getting the Departmental Qualifying Examination written by an outsider. Perusal of his evidence and the complaint go to show that a complaint was received by CGM from 3 individuals. Based on that the concerned R & E Section conducted preliminary enquiry and noticed certain irregularities. Thereafter, the matter was referred to him for further investigation by the then Assistant General Manager, R & E centre, viz., Ganapathiraman. Hence he conducted further investigation. He has stated that he obtained the handwriting of Chinnaiah [A1] by giving dictation in the presence of witnesses. He has stated that 19 Chinnaiah-accused No.1 gave statement voluntarily as per Ex.P25 consisting of 5 pages signed by the said accused as per Ex.P25(a) and the witness in whose presence the statement was given also signed before him as per Ex.P25(b). Based on the confession statement and other material his training was suspended and he was sent back to the original cadre. He has further stated that he obtained the specimen signatures of accused No.1 at Training Centre, Mysore and subsequently in his office.
19. P.W.6 has stated that he addressed a letter dated 29.04.2003 to the Government Examiner of Questioned Document [GEQD], Hyderabad, along with documents Exs.P27 to 35. Along with Ex.P26 four answer booklets of accused No.1 and 26 sheets were forwarded for the purpose of comparing the writing and signatures of accused No.1 appearing on the standard documents with the writings and signatures appearing in the disputed documents, to give an opinion whether they were all of same person or not. Thereafter, he received the opinion from GEQD, which is marked as Ex.P36.
20. From the evidence of P.W.6 it is seen that he obtained the handwriting of accused No.1 by giving dictation to him as per Ex.P25, 20 which according to the prosecution is the confession statement of the said accused. Further, after receiving the opinion as per Ex.P36 from the GEQD, a complaint was sent to the Superintendent of Police, CBI/ACB, enclosing the opinion of GEQD, to initiate proper enquiry. He has stated that he lodged the complaint as per Ex.P38 and forwarded Exs.P1, P13 to 18, P25 to 37, P39 to 47 and the specimen signatures obtained by him from accused No.1.
21. It is relevant to see that Ex.P36 dated 12.05.2003 when received by P.W.6, was not accompanied with reasons for coming to the conclusion that the person who wrote the standard document did not write the disputed document. No reasons are furnished as to how the said opinion as stated in Ex.P36 was arrived at. Though the complaint was forwarded with a request to initiate appropriate enquiry, the Investigating Officer has not conducted an independent investigation so as to ascertain the similarities or dissimilarities of the handwritings of accused No.1 found in the admitted and disputed documents. Interestingly, for the first time, in the further examination of P.W.10, working as Deputy Government Examiner of questioned document, conducted on 04.02.2010. Ex.P60 came to be 21 marked, which contained reasons for his opinion with regard to Ex.P36. The said reasons as per Ex.P60 should have been sent along with Ex.P36. It appears that the said document was not sent along with Ex.P36 to P.W.6, which raises a doubt in the mind of the Court that the opinion was furnished as per Ex.P36, without any scientific examination of the disputed and admitted handwritings. Ex.P60 ought to have been marked along with Exs.P36 and P37 through P.W.6, if at all he had received it. But as already noted, for the first time, on 04.02.2010, through P.W.10 the said document dated 12.05.2003 was marked. Admittedly, P.W.6 did not handover Ex.P60 to the Investigating Officer, as such without conducting independent investigation in respect of accused No.1, the Investigating Officer could not have found material against him. When P.W.6 has specifically stated that he has forwarded certain documents pertaining to accused No.1 and his specimen signatures, the Investigating Officer ought to have conducted an independent investigation in respect of accused No.1 instead of relying on the preliminary enquiry conducted either by concerned R & E Section or by P.W.6. From the evidence of P.W.10, it is seen that the Investigating Officer has not sent any material or document to compare the handwritings of accused No.1 22 with the disputed document. According to P.W.10, documents sent to him by S.P., CBI/ACB for examination and opinion was in respect of accused No.2.
22. As per P.W.10, the person who wrote the disputed and questioned document are one and the same. Therefore, according to the prosecution, it is accused No.2, who wrote the answer script and not accused No.1. However, after taking over the investigation, the standard handwriting of accused No.1 was not sent to the GEQD to compare the same with the handwriting found on the questioned document, to rule out the possibility that accused No.1 did not write the examination or to show that it was not in his handwriting. It is pertinent to mention that P.W.6 could not have acted as an Investigation Officer and the material collected by P.W.6 which would possibly incriminate the accused could not be taken as evidence, particularly when P.W.6 has specifically stated that he obtained the handwriting of accused No.1 by giving dictation in the presence of the witnesses. The prosecution has not examined any of the so called witnesses in whose presence the handwriting of accused No.1 was obtained.
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23. P.W.7 has supervised the examination conducted for the departmental candidate for the post of JTO in St. Joseph's Indian High School. He has stated that he took the assistance of 26 invigilators by passing necessary order. P.W.5-Sri. Garje, Accounts Officer was one of the invigilator who has been examined by the prosecution. P.W.7 in his examination-in-chief has deposed that A1 has written his examination in refractory hall, St. Joseph Indian High School. During the relevant period, one K.Gururajan [C.W.9] was the AGM, [R&E]. He has stated that a candidate cannot come to know his code number and the valuer will also not be able to identify a candidate. The secret code number is prepared by the AGM, [R&E] for each candidate and the same is informed to the Supervisor one day before the examination. Further, he has stated that the answer script given to the candidate consists of two portions. The top portion is required to be filled by the candidate, which relates to the roll number, subject of the examination and date, to ensure secrecy of the identity of the candidate. The said top portion which according to P.W.7 is required to be filled by the candidate has not been produced, though it is stated 24 that the same would be detached before sending the answer sheet to the valuer.
24. P.W.7 has specifically stated that on the date of examination, he did not notice or come across any malpractice. This evidence of P.W.7 assumes importance in view of the evidence of P.W.5, the invigilator, who was deputed to the concerned examination hall. P.W.5 has stated that at the time of obtaining the signature of the person who was answering the examination paper at the place meant for Roll No.1393, he did not get any doubt, when he saw the signatures in the hall permit of the said roll number. P.W.5 at nowhere stated that accused No.1 was not the person who was present in the examination hall and wrote the examination.
25. P.W.8 is a panchwitness to Ex.P52, search list prepared in the house of accused No.1.
26. P.W.9 is one of the employee in the Department of Telegraph Office, who appeared for departmental exam for the post of JTO conducted on 16th and 17th of September 2000. His evidence does not show that accused No.1 did not write the said examination or that 25 it was accused No.2 who impersonated accused No.1 and wrote the departmental examinations. He has not been asked to identify accused No.2 as the one who was present in the examination hall or who wrote the departmental examination. On the other hand, the defence has got marked Ex.D1, the statement of P.W.9, recorded by the Investigating Officer-P.W.11, wherein he is stated to have identified accused No.1 M.N.Chinnaiah amongst 7 other candidates as one of the person who appeared for the exam. P.W.9 has not disputed the said statement marked as Ex.D1.
27. In the instant case, P.W.6 has obtained the handwriting of accused No.1 as per Ex.P25. According to the prosecution, P.W.6 obtained specimen handwriting of accused No.1 and sent certain documents including 4 answer booklets requesting the handwriting expert to compare the writings and signatures of accused No.1 appearing on the standard documents with the writings and the signatures appearing in the disputed documents. As already observed no independent investigation has been conducted by P.W.11 after registering the case in respect of accused No.1, by sending the disputed and standard handwritings for comparison. Exs.P27 to 35 26 were not seized by P.W.11 in the course of investigation in the presence of panch witnesses. According to P.W.11, he conducted the search of the residential premises of accused No.1 and prepared the search list-Ex.P52, under which 3 documents were seized in the presence of the panch witnesses. Further, a search was conducted in the office premise of accused No.1 and a brown colour diary was seized under Ex.P54. He has stated that he collected 28 documents from Karnataka Telecom such has hall permit, attendance sheet, answer book purportedly written by accused No.1. However, his evidence does not show that documents pertaining to accused No.1 were sent for comparison with standard and disputed handwriting so as to arrive at a conclusion before filing the charge-sheet. He has admitted in the cross-examination that all the relevant documents pertaining to the case were in the custody of the department till they were sent to him and he did not conduct any specific and independent investigation. He has stated that he proceeded with further investigation on the basis of the records received from the department [BSNL] and on the basis of the statement made by accused No.1, indicted accused No.2. It is also relevant to see that P.W.10 has admitted in his cross-examination that CBI did not forward the 27 specimen writings and signatures of accused No.1 and he did not have any opportunity to compare S-1 to S-40 belonging to A-2 with the specimen writings and signatures of A-1. Further, he has admitted that there may be natural variations in the features of handwriting and signatures of the person with lapse of time.
28. It is held in the case of 'Sukhvinder Singh and others' [supra] relied upon by the learned Senior Counsel for appellants, that direction to an accused to give specimen writing can only be issued by the Court holding enquiry under Cr.P.C. or the Court conducting trial of the accused. Para 19 and 20 of the said Judgment are reproduced which reads as under:
"19. A subsequent writing of an accused taken under the direction of the court is in substance a specimen writing obtained for comparison of the disputed writing with it. Though, Section 73 does not specifically say as to who could make such a comparison but reading Section 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to 28 come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of a handwriting expert is to opine after a specific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two sets of writings.
20. The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing "for the purpose of enabling the court to compare" such writings with writings alleged to have been written by such person. The obvious implication of the words "for the purpose of enabling the court to compare" is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of "enabling the court to compare" and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceedings are pending in any court in which it might be necessary to compare the two 29 writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of 'enabling it to compare' the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion the court which can issue a direction to the person to give his specimen writing can either by the court holding the enquiry under the Code of Criminal Procedure or the court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature 30 contained in the second paragraph of Section 73 of the Evidence Act. The words "any person present in the court"
in Section 73 has a reference only to such persons who are parties to a cause pending before the court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application."
29. Position of law laid-down in Sukhvinder Singh case has been reiterated in other decisions referred to by the learned Senior Counsel. In those cases, it is held that pendency of a proceeding before a Court is sine-qua for exercise of power under Section 73 of the Indian Evidence Act. Although, by way of amendment brought with effect from 23.06.2006, the specimen signature or handwriting of any person including the accused could be taken for purposes of any investigation or proceeding under the Criminal Procedure Code by an order of Magistrate as per Section 311-A of Cr.P.C. Proviso to Section 311-A further states that no order shall be made under the said Section unless the person has at some time been arrested in connection with such investigation or proceeding. 31
30. In this regard, it is useful to refer to the decision of the Hon'ble Apex Court in the case of 'Sapan Haldar & Anr. Vs. State' [supra], wherein at para 27 to 31 it is held as hereunder:
"27. Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different vis-à-vis finger print impressions and a handwriting. With respect to a Magistrate so direct. The Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions. Even with respect to finger print impressions, the weight of the judicial pronouncements leans to hold that unless there is a manner prescribed, be it under the Rules framed by the State Government or an executive instruction issued, evidence pertaining to finger print impressions obtained by the investigating officer would be inadmissible in evidence; and even when the same is provided, as held by the Supreme Court in Mohd. Aman's case [supra], to obviate any suspicion, it should be desirable that procedure prescribed under Section 5 of the Identification of Prisoners Act, 1920 should be followed.32
28. There is yet another argument which needs to be considered with respect to Section 4 of the Identification of Prisoners Act, 1920. The Section empowers a police officer to take measurements of a person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Ex-facie, the Section would have no application where the person is suspected of having committed an offence which is punishable with death or imprisonment for life, as was held by a Division Bench of the Bombay High Court in the decision reported as ILR 1983 Bom. 1508; Nizammuddin Usman v. State of Maharashtra.
29. We note that the legislature has taken corrective action, when by virtue of Act No.25 of 2005, with effect from June 23, 2006, Section 311A has been inserted in the Code of Criminal Procedure, 1973 and has empowered a Magistrate to direct a person accused to give specimen signatures or handwriting. Section 311A reads as under:-
"311A. Power of Magistrate to order person to give specimen signatures or handwriting.-If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under 33 this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
30. Thus, with effect from June 23, 2006 the legislative empowerment has empowered the Magistrate concerned with reference to signatures and handwriting; the lacuna in the law which was noted by the Supreme Court in the year 1980 when Ram Babu Mishra's case [supra] was decided has been removed.
31. We answer the reference as follows:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of the Identification of Prisoners Act, 1920 will not apply 34 to a handwriting sample or a sample signature.
Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No.25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case [supra].
According to Section 73 of the Indian Evidence Act, 1872, only the Court [supra]. According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison.
32. Though not falling for consideration in this reference, with respect to finger prints, which are included in 'measurements', the weight of the authorities is that if by way of Rules or Executive instructions the manner is prescribed to take the measurements, alone 35 then can an Investigating Officer, under Section 4 obtain the measurements but strictly as per manner prescribed; but it would be eminently desirable, as per the decision in Mohd. Aman's case [supra] to follow the procedure ordained under Section 5 of The Identification of Prisoners Act, 1920.
33. Relevant would it be to further note that in relation to offences punishable with death or imprisonment for life, Section 4 of The Identification of Prisoners Act, 1920 would not be applicable because the said provision specifies a prerequisite: that the person concerned is accused of having committed an offence which is punishable with a sentence to undergo rigorous imprisonment for a term of one year or upwards i.e., the sentence must relate to imprisonment for a term and would thus exclude such offences where either capital punishment or imprisonment for life is the sentence contemplated."
31. The learned Senior Counsel for appellants has also contended that the evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. In this regard he has pressed into service the decisions of the Hon'ble Apex Court in 36 the cases of 'Ishwari Prasad Misra Vs. Mohammad Isa' [supra] and 'Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee' [supra]. To be specific, it is held therein that the experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is necessary to see if it is corroborated by either by clear direct evidence or by circumstantial evidence.
32. In the case of 'Alamgir Vs. State [NCT, DELHI]' [supra] it is held by the Hon'ble Apex Court that 'experts opinion must always received with great caution and perhaps none so with more caution than the opinion of the handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on experts opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. It would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence'.
37
33. The learned Senior Counsel for appellants has also relied upon several other decisions on the point of admissibility of experts opinion and powers of Court under Section 73 of the Evidence Act. In those decisions, the Hon'ble Apex Court has reiterated the position of law noted above as such, no separate discussion is required.
34. In the decision referred by the learned counsel for the respondent in the case of 'Manickam Vs. State' [supra] the Apex Court in para 33 has observed that;
"33. There is no law which prohibits the Investigating Officer from lifting the Finger Print of the accused for comparision during the course of investigation of the case. In fact, the provisions found under Section 5 of the Identification of Prisoners Act, 1920, and Section 311-A, Cr.P.C. speak only about the powers of the learned Judicial Magistrate, when he is approached by the Investigating Officer concerned for a suitable direction to the accused to co-operate by giving his finger print or signature or sample hand-writing as the case may be. It is to be noted that those provisions do not put an embargo on the Investigating Officers from acting on their own for lifting the finger print, signature or handwriting of the 38 accused during the course of investigation. The Supreme Court has not laid down that the Investigating Officer should mandatorily invoke the provision under Section 5 of the Identification of Prisoners Act, 1920, whenever he resorts to lift the finger print of the accused for the purpose of investigation of the case."
35. On a Perusal of the evidence of P.W.6 it is manifest that he obtained the handwriting of accused No.1 as per Ex.P25, by giving dictation, in the presence of the witnesses. If that is so, Ex.P25 cannot be considered as the voluntary statement or a confession statement of the accused as claimed by the prosecution.
36. Law relating to extra-judicial confession has been dealt by the Hon'ble Apex Court in various decisions. In one of such decisions, in the case of 'Sahadevan and another Vs. State of Tamil Nadu' [supra], the Hon'ble Apex Court has reiterated the position of law holding that it is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and if corroborated by other 39 prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration.
37. As held by the Hon'ble Apex Court, an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it looses its importance. As a rule of caution, the Court generally looks for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. In the present case, as already discussed, the Investigating Officer has not collected specimen handwriting of accused No.1 for comparison with the disputed handwriting. He has not conducted independent investigation against accused No.1 in this connection, but relied on the enquiry conducted by the complainant- P.W.6. According to P.W.6 the confession statement of accused No.1 40 as per Ex.P25 was taken in the presence of a witness who signed the said statement. In his cross-examination he has stated that two witnesses were made available when he took the specimen handwriting of A-1 as per Ex.P25. But, none of the said witnesses were examined by the prosecution.
38. In the case of 'Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy [dead] through legal representatives and another' [supra], relied upon by the respondent's counsel it is once again held that the Court must be cautious while evaluating experts opinion, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence, and Court may seek independent and reliable corroboration in the facts of a given case, as a general rule of prudence.
39. The learned counsel for the respondent has strongly placed reliance in the case of 'Vijay alias Gyan Chand Jain Vs. State of M.P.' [supra] to contend that even without a direction by the Court an experts opinion regarding specimen writing can be obtained. However, in the present case, the specimen handwriting of accused No.1 was sent to the handwriting expert not by the Investigating 41 Officer, but by the complainant P.W.6, before even the case was registered.
40. It is the contention of the learned counsel for the respondent that P.W.6 having prima facie satisfied about the commission of the offence has received the confession statement of accused No.1 and thereafter, he has taken due care to send the specimen to the Government Agency. He contends that only if the accused refuses, then the Magistrate can direct him to give the specimen handwriting and the Court can clarify itself only when it entertains a doubt. The said contention cannot be accepted in view of several decisions of the Hon'ble Apex Court noted supra.
41. It is the further contention of the learned counsel for the respondent that the accused has not disputed in his statement recorded under Section 313 Cr.P.C. that Ex.P25 was forcibly taken from him. He has contended that the said statement is voluntary and therefore, the same is admissible in evidence. Relying on a decision of the Apex Court in 'Sahadevan and Another Vs. State of Tamil Nadu' [supra] he would contend that "an extra-judicial confession, if 42 voluntary and true and made in a fit state of mind, can be relied upon by the Court and conviction can be founded thereon".
42. The above proposition of law is not in dispute, but subject to other restrictions put by the Hon'ble Apex Court in various decisions noted supra. The confession will have to be proved like any other fact. What has been admitted by accused No.1 to question No.19 of his 313 Cr.P.C. statement is that P.W.6 has obtained his handwriting by giving dictation and he has voluntarily given the statement as per Ex.P25. From the evidence of P.W.6 as well as from the said statement it can be clearly seen that statement of accused No.1 as per Ex.P25 was obtained by P.W.6 by giving dictation to accused No.1. Therefore, it cannot be said that any statement made therein can be accepted as given voluntarily by the said accused. No witness has been examined in whose presence the said statement was recorded. In fact, to question No.20, in statement recorded under Section 313 of Cr.P.C. accused No.1 has denied having put any signature on Ex.P25. In the cross-examination, it was specifically suggested to P.W.6 that accused No.1 did not voluntarily write the contents of Ex.P25 and that it was forcibly obtained on his instruction and dictation for the purpose of 43 creating evidence against him. P.W.6 has admitted that he has not made any endorsement in Ex.P25 to the effect that the contents were voluntarily written by A-1 in the presence of witnesses. In view of the same, Ex.P25 cannot be accepted or relied as a confessional statement given by accused No.1 so as to convict him for the charged offences.
43. As already discussed, neither the invigilator nor any other candidates who appeared for the departmental examinations have stated that it was accused No.2 who was present in the examination hall and wrote the departmental examinations by impersonating accused No.1 or that accused No.1 was not the person who wrote the examination conducted by the department. It is not the case of prosecution that accused No.1 had attended his duty on the date of examinations. On the other hand, the material on record disclose that accused No.1 was on leave and not attended the duty on 16th and 17th of September, 2000, the date of examinations.
44. For the foregoing reasons, it cannot be held that the prosecution has established its case against the accused/appellants beyond reasonable doubt. The trial Court has failed to properly appreciate all the above aspects and the evidence and material on 44 record in its proper perspective. The reasons assigned by the trial Court are not in accordance with law and therefore, the impugned Judgment is not sustainable in law.
45. The learned counsel for the respondent has contended as a last resort that no finding, sentence or order shall be reversed or altered by a Court of appeal on account of any error, omission or irregularity in the Judgment of the trial Court. However, it is needless to say that the impugned Judgment has resulted in failure of justice and if failure of justice has in fact been occasioned, then the appellate Court which is bound to re-appreciate the entire evidence and material on record would be justified in exercising its power under Section 386 of Cr.P.C. and reverse the finding and sentence, and acquit the accused in an appeal from a conviction.
46. In view of the above discussion and for the aforementioned reasons, the impugned Judgment and order of conviction and sentence passed by the trial Court is liable to be set aside. The points raised are answered accordingly. Hence, the following:
ORDER Appeal is allowed.45
Impugned Judgment and Order dated 30.06.2010 in Spl. C.C. No.149/2004, passed by the Court of XXI Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru [CCC-4] is hereby set aside.
Appellants/accused Nos.1 and 2 are acquitted of the offences for which they are convicted and sentenced by the trial Court. Their bail bonds stand cancelled.
Fine amount if any deposited by appellants/accused Nos.1 and 2 shall be refunded.
Sd/-
JUDGE JTR/Ksm*