Andhra HC (Pre-Telangana)
S. Narasimha Kumar vs State Of A.P., Rep. By Public Prosecutor on 21 March, 2003
Equivalent citations: 2003(1)ALD(CRI)651, 2003(2)ALT(CRI)441
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. All these revisions arise out of the Judgment of the Court of the VII Additional Munsif Magistrate, Guntur in C.C. No. 53 of 1990. A1 was charged with offences under Sections 381, 411 and 120-B of the Indian Penal Code. A2 to A11 and A15 were charged with offences under Sections 120-B and 414 I.P.C. A12 to A14 were charged with offence under Section 411 I.P.C. A4 died during the trial of the case. The case against A10 was separated. Through its Judgment dated 26-11-2000 the trial Court convicted the above said accused for the offences alleged against them and awarded sentences of various descriptions.
2. Aggrieved thereby, the accused have filed the following criminal appeals in the Court of IV Additional Sessions Judge, Guntur.
1. Criminal Appeal No. 616 of 2000 (A1)
2. Criminal Appeal No. 595 of 2000 (A2, A5 to A8 and A11)
3. Criminal Appeal No. 610 of 2000 (A3).
4. Criminal Appeal No. 631 of 2000 (A9).
5. Criminal Appeal No. 598 of 2000 (A12 to A14)
6. Criminal Appeal No. 625 of 2000 (A15).
3. The lower appellate Court rendered a common Judgment dated 3-12-2000 in all these appeals. The lower appellate Court acquitted A5 and A7 to A9, but sustained the conviction and sentence against the remaining accused.
4. A1 filed Criminal R.C. No. 1430 of 2001, A2, A6 and A11 filed Criminal R.C. No. 1415 of 2001, A3 filed Criminal R.C. No. 1424 of 2001, A12 to A15 filed Criminal R.C. No. 1419 of 2001 and A15 filed Criminal R.C. No. 1418 of 2001.
5. The case of the prosecution was that the Andhra Pradesh Public Service Commission, hereinafter referred to as the Commission, intended to undertake selection for various posts of Group IV services in the State. As part of the said process, it intended to conduct written examination for selection of the candidates. The written examination was scheduled to be held on 24-2-1985. The hall tickets were issued to the various candidates that have applied for the same.
6. The question papers for the said written test were got prepared and printed by the Commission. It ensured that no leakage of papers takes place. Having received the printed question papers, it has undertaken the packing of the question papers to be sent to the various centers for the examination to be held on 24-2-1985. PW.19 was the Assistant Secretary of the Commission at the relevant point of time and he has supervised and overseen the packing of the question papers. He has drawn the services of about 20 persons including P.Ws.10 to 13, 16 and 17 as well as A1 for the purpose of packing the papers. The papers were dispatched to various centers under strict supervision and security.
7. One of the centers for conducting the examination was at Chilakaluripet in Guntur District. PW.1 was the Principal of that college. PW.2 is a Lecturer of that college and acted as Additional Chief Superintendent.PWs.3 and 4 were invigilators.A14 was one of the candidates taking the examinations. He was found copying from certain written material. The written material, the answer script as well as the hall ticket were seized from A14 by PW.2 and a case against him was registered with the police. During the course of investigation it is alleged that A14 revealed that he had come into possession of copy of the question papers from A1 and the answers were prepared on that basis.
8. A1 is alleged to have stealthily taken one of the question papers during the course of packing, secured copies of the same at the Xerox center run by PW.26 and thereafter sold it for huge amounts. The various accused were charged by the trial Court, commensurate with their participation in the entire crime.
9. The prosecution examined PWs.1 to 54 and it exhibited documents Exs.P1 to P100 and M.Os.1 to 7.
10. The learned Senior Counsel Mr. T. Bali Reddy appeared for the petitioners in Criminal R.C. Nos. 1418 and 1419 of 2001, learned Senior Counsel Mr. C. Padmanabha Reddy appeared for the petitioners in Criminal R.C. Nos. 1415 and 1424 of 2001 and the learned Senior Counsel Mr. E. Ella Reddy appeared for the petitioners in Criminal R.C. No. 1430 of 2001. They submit that the whole prosecution case was without any basis, in that, neither any material said to have been stolen by A1 or any other accused was recovered, nor any ingredients for the offence under Section 411 I.P.C. or other related Sections were pleaded, much less established. According to them no witnesses, ranging from PW.19 who supervised the packing of the question papers, to PWs. 7, 10 to 12, 16, 17 and 19 who dealt with the packing, sealing and forwarding of the question papers have spoken anything as to A1 committing theft of any question paper. They submit that PW.19 has categorically stated that he did not notice any irregularities in the entire process. Learned counsel emphasise the fact that even PW.26 whom the prosecution examined for showing that A1 has taken Xerox copies of the question papers from him, did not speak a word as to A1 being in possession of the said question papers. It is also their case that the prosecution has failed even to examine the Investigating Officer.
11. Learned Public Prosecutor submits that by its very nature the case had to be proceeded on the basis of circumstantial evidence and if the events starting with the noticing of copying by A14 is to be traced one after the other, a perfect chain comes to be established. He submits that failure to examine the Investigating Officer was hardly of any consequence as long as the necessary documentary and oral evidence was placed before the trial Court. He relies upon the Judgment of the Supreme Court in RAM GULAM CHAUDHARY AND OTHERS vs. STATE OF BIHAR, .
12. The examination for the purpose of selection of candidates for Group IV was held by the Commission way back on 24-2-1985. Nothing was noticed and no traces of leakage of the question papers were found till the commencement of the examination on that date. A14, who was taking the examination at the center at Chilakaluripet was found to be in possession of certain written material. That was almost the starting point for the prosecution to undertake the investigation. As submitted by the learned Public Prosecutor, in cases of this type the prosecution has mainly to rely upon the circumstantial evidence and it is rather to next impossibility to expect the existence of any direct evidence.
13. The accusation against A1 was that he was one of the persons drawn for the purpose of packing and sealing the question papers and during that process on 11-2-1985, and that he pulled out one question paper of Part I stealthily from one of the bundles. The prosecution alleged that the same was found to be in a torn condition and it was taken to his house. It was further alleged that on 16-2-1985, A1 has taken out question paper of Part II, when the remaining persons drawn for the process have gone out for taking tea. He is alleged to have taken that paper also to his house. The further allegation is that he has obtained copies of the same from the Xerox shop of PW.26. He and A2 are alleged to have conspired with A3 to A11 and A15 in disposing of the copies of the question papers stolen by A1. A2 and A6 are said to have sold copies of the same to A12 to A14. The outcome of this case would mainly depend on whether the prosecution is able to establish that A1 had stolen the question papers referred to above. If that is established, the rest of the aspects are almost ancillary in nature.
14. The basic allegation against A1 is one of theft. In the offences of theft, robbery or dacoity, it is rather difficult to expect an eyewitness to be present. Such offences are to be established only on the basis of recoveries of the stolen property and identity of the persons who have committed the offences. Inasmuch as the theft alleged to have committed in this case is of a question paper which was handled by A1 as well as about 20 other employees, the ingredient of identity becomes rather irrelevant. Then one has to fall back on the aspect of recovery. The evidence on record does not disclose that either the question papers said to have been stolen by A1 or the copies made therefrom are recovered from A1. Having regard to the nature of the property said to have been stolen, the circumstantial evidence such as seals of the bundles are not being intact, or other circumstances suggesting that the suspicion expressed by the supervising authority would certainly provide certain indication.
15. As observed earlier, PW.19 is the officer who was entrusted with the packing and dispatch of the question papers. It is essential to extract his entire chief examination, which is brief:
"I retired as Assistant Secretary, A.P.P.S.C., Hyderabad. I worked as such from 1982 to 1987.The Chairman, APPSC entrusted with me the papers of group IV question papers for dispatch to concerned centers. From, 7-2-1985 to 18-2-1985, PW.10, Sakina Begum, PW.11, Chandra Sekhar, Satyanarayana Murthy, B. Nukaraju, B. Kotireddy and others assisted me. Kotireddi is A1 herein. Sambireddi, Superintendent, gave gunny bundles containing question papers for packing. Some attenders were also present. All the persons named by me were not present on all the days of work, as they had their own personal engagements. I took precautions to pack the question papers in a separate room. I personally supervised the package. In my presence, staff counted the question papers and packed them into paper bundles. I affixed seals to packed bundles. After packing is over, I send all the bundles to Mr. Sambireddy, on each day, during that period. After packing work is over, all the bundles were kept in strong room. I was examined by police".
16. It is evident that PW.19 was satisfied as to the security and secrecy of the question papers till they were dispatched. He did not suspect any of the packing staff including that of A1 regarding bundling and sealing. The other witnesses who were entrusted with the task of packing and sealing the papers were PWs.7, 8, 10 to 12, 16, 17 and 19. They stated as under:
"PW.7 "I did not come across any malpractices". PW.8 stated that "to my knowledge no shortage of question papers reported to me".
PW.10 "I did not notice any breakage of paper packing bundles. I did not find any of the paper packet being in torn condition".
PW.11 "I did not see any of the paper bundles tampered with in any manner. I put the vax seals on the bundles which were passed on to me and which were found to be in proper condition".
PW.12 "I did not find any open bundle or torn bundle in the packets that were removed and placed before PW.19".
PW.16 "there is no scope for anybody to remove the packet from my room when they were with me".
PW.17 "there was no possibility for anybody to take away the papers from our room".
PW.19 "I did not find any paper packing in torn condition. I did not notice any leakage of papers during the course of work".
17. From the statements of the witnesses referred to above, hardly any circumstance can be inferred to indicate that there was any scope for leakage, or that A1 has stolen any paper.
18. The only bridge or link which the prosecution relied upon, to connect the entire event to A1 was the evidence of PW.26. He is the person running a Xerox shop at Hyderabad. His entire chief examination is to the following effect:
"I am resident of Hyderabad at Bakaram. I run Sarala Type Institute at Bakaram. I know A-1 in this case. I have no acquaintance with him. In February, 1985 A-1 brought some papers for Xerox copies and I prepared them and gave to him. They were in English and Telugu. I do not remember how much I charged.A-1 took around 20 or 25 copies of the material brought by him. I do not remember how much money he paid. Police recorded my statement in case."
19. Even from the statement of PW.26 that A1 brought some papers for Xerox to him in February, 1985, it cannot be inferred that what was got Xeroxed by A1 were the question papers. The chief examination itself was rather equivocal. It was hardly sufficient to provide any clue to connect A1 to the offence. In the cross-examination it was elicited through PW.26 as under:
"I do not know the nature of papers Xeroxed by A1. We do not maintain any register. We do not have bill book also. I have no documentary evidence that is to show that A1 came to our Institute and got Xerox copies from out of the material he brought. There used to be 100 to 150 people who come for shop work. I cannot give the names of other persons who visited our Institute when A1 came to take Xerox copies or job work. I do not know where he resides or his occupation and I never talked to him previous to that day".
20. Therefore there is hardly anything in the evidence of PW.26 which can be of any help to hold that A.1 had stolen any question papers or committed other offences alleged against him.
21. The proceedings before the trial Court indicate that obviously because there was no direct evidence in the matter, the prosecution has gathered material from various witnesses and had marked several documents. As many as 50 witnesses were examined and 100 documents were marked. The witnesses and documents were so diverse that one hardly has any relation or connection with the other. It is only on linking the individual or sets of witnesses and documents, that a chain of events can be established. Hence, the examination of the Investigating Officer assumes significance.
22. It is true that in the Judgment cited supra (1) the Hon'ble Supreme Court held that mere non-examination of the Investigating Officer should not be fatal. However, in cases of this type, it is only the Investigating Officer that would be in a position to explain the whole sequence of events. It is rather next to impossibility for any witness in this case to be in a position to vouch for the whole gamut of the case. The witnesses or group of them have only spoken to one aspect or the other. For example PWs.1 to 4 are the staff of the college where the examination was held.PWs.7 to 20 etc., are the employees of Commission. PW.26 is an operator of Xerox machine. One had hardly anything with the other, either in the course of their regular activity or otherwise. It is only an Investigating Officer that could have been in a position to supplement one event with the other. For the reasons best known to it, the prosecution did not choose to examine the Investigating Officer. In a way, it can be said that it had abdicated its duty to the Court. Having examined 50 witnesses and marked 100 documents, it left the Court to draw its own inference, without even providing the basis for connecting one with the other.
23. In theft and other related offences, it is only when the stolen property is recovered a substantial portion of the charge can be said to have been established. In this case not a scrap of paper was recovered from A1. Therefore the entire accusation has to be only on the basis of imagination. If it is permissible to infer such a thing vis-a-vis A1, it should equally be possible to infer the same as regards the other persons who participated along with him in the packing and sealing of the question papers. The evidence on record does in no way differentiate A.1 from others, who participated in packing and sealing the question papers. None of the material objects marked by the prosecution have anything to do with the objects said to have been stolen. Therefore viewed from any angle, it cannot be said that the prosecution had established its case against the accused.
24. The Courts below have brushed aside the inconsistencies as well as the material defects in the prosecution case. Though the statements of various witnesses do not disclose even the basic ingredients, they were treated as establishing the offences conclusively. The half-heartedness with which the prosecution has conducted this case, in not even choosing to examine the Investigating Officer discloses as to how the valuable and precious time of the Courts, which has already burdened with heavy pendencies, has been wasted. An incident relating to the year 1985 was investigated and the case went on for more than 1.1/2 decades. The Judgment came to be rendered in 2000. This Court is left with no option except to allow the revisions and set aside the convictions and sentences imposed against the accused in the respective criminal revisions.
25. In the result, Criminal Revision Cases are allowed and the convictions and sentences ordered against the accused-petitioners in the respective Revisions are hereby set aside. The accused-petitioners shall stand acquitted. Their bail bonds shall stand cancelled. Fine amounts, if any paid, and the cash and other negotiable instruments if any recovered from the accused-petitioners shall be refunded to the respective accused-petitioners.