Karnataka High Court
Pradeep @ G Pradeep vs State By Chitradurga Town Police on 4 March, 2022
Crl.R.P.No.710/2017 C/W
Crl.R.P.No.665/2017,
Crl.R.P.No.883/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.710/2017
C/W
CRIMINAL REVISION PETITION No.665/2017
CRIMINAL REVISION PETITION No.883/2017
IN CRL.R.P.NO.710/2017
BETWEEN:
1. SYED ADAM
S/O SYED YUSUF
AGED ABOUT 30 YEARS
PRINCIPAL, HARSHINI SUDHAKAR
ITI COLLEGE, R/O THALAK VILLAGE
CHALLAKERE TALUK - 570 022
2. AJJAPPA
S/O DURUGAPPA
AGED ABOUT 46 YEARS
JUNIOR TRAINING OFFICER
IN A.M.I.T.I. COLLEGE
R/O S.R.ROAD, 6TH CROSS
GANDHINAGAR
CHALLAKERE - 570 022
3. LOHITH KUMAR
S/O SRI.CHANDRASHEKAR
AGED ABOUT 29 YEARS
M.R.S.D. ITI TRAINING COLLEGE
WORKING AS JUNIOR TRAINING OFFICER
R/O NEAR BY AKSHARAVANI TOWER
7TH CROSS, C.K.PURA, KELAGOTE
CHITRADURGA - 570 022
Crl.R.P.No.710/2017 C/W
Crl.R.P.No.665/2017,
Crl.R.P.No.883/2017
2
4. K.T.GIRISH KUMAR
S/O THIPPEWAMY
AGED ABOUT 33 YEARS
ELECTRICAL ENGINEER, 'OM' SERVICE PVT.LTD.,
BHARAMASAGARA
R/O ADISHAKTHNAGAR
BEHIND RAVI BAR
CHITRADURGA - 570 022 ... PETITIONERS
(BY SRI.VISHWANATH R HEGDE, ADV.)
AND:
STATE BY TOWN POLICE
CHITRADURGA
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.ABHIJITH K.S., HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 29.05.2017
PASSED BY THE SPL. II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA IN CRL.A.NO.25/2015
AND THE JUDGMENT DATED 28.05.2015 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., CHITRADURGA
IN C.C.NO.828/2013 IN THE ABOVE MENTIONED CASES.
IN CRL.R.P.NO.665/2017
BETWEEN:
T.DHANANJAYA
S/O THIPPAIAH
AGED ABOUT 30 YEARS
OWNER OF INDICA CAR BEARING
REGISTRATION NO.KA-16-B-3400
R/O SOMAGUDDU ROAD
3RD CROSS, CHALLAKERE TOWN
CHITRADURGA DISTRICT - 577 522 ... PETITIONER
(BY SRI.P.B.UMESH, ADV. FOR
SRI.R.B.DESHPANDE, ADVOCATE)
Crl.R.P.No.710/2017 C/W
Crl.R.P.No.665/2017,
Crl.R.P.No.883/2017
3
AND:
THE STATE OF KARNATAKA
BY CHITRADURGA TOWN POLICE
CHITRADURGA DISTRICT
REPRESENTED BY SPP
HIGH COURT BUIDLING
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.ABHIJITH K.S., HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 28.05.2015 PASSED BY
THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M.,
CHITRADURGA IN C.C.NO.828/2013 AND THE JUDGMENT
AND ORDER DATED 29.05.2017 PASSED BY THE SPL. II
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA IN CRL.A.NO.25/2015 AND ACQUIT THE
PETITIONER OF THE CHARGES LEVELED AGAINST HIM.
IN CRL.R.P.NO.883/2017
BETWEEN:
PRADEEP @ G.PRADEEP
S/O GOWDAPPA
AGED ABOUT 40 YEARS
ITI STUDENT, RESIDING AT
SIDDAPURA VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577 522 ... PETITIONER
(BY SRI.JAGAN MOHAN M T, ADV.)
AND:
STATE BY CHITRADURGA
TOWN POLICE
CHITRADURGA - 577 501
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ... RESPONDENT
Crl.R.P.No.710/2017 C/W
Crl.R.P.No.665/2017,
Crl.R.P.No.883/2017
4
(BY SRI.ABHIJITH K.S., HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 29.05.2017
PASSED BY THE SPL. II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA IN CRL.A.NO.27/2015
AND THE JUDGMENT DATED 28.05.2015 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., CHITRADURGA
IN C.C.NO.828/2013 AND ETC.
THESE CRIMINAL REVISION PETITIONS COMING ON
FOR HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
ORDER
Aggrieved by the order of conviction and sentence passed against them in C.C.No.828/2013 on the file of the Principal Senior Civil Judge & CJM, Chitradurga and confirmation of the same by the Special II Addl. District and Sessions Judge, Chitradurga in Crl.A.Nos.25/2015 and 27/2015, accused Nos.1 to 6 have preferred the above petitions.
2. The petitioners in Crl.R.P.No.710/2017 are accused Nos.1, 3 to 5, petitioner in Crl.R.P.No.665/2017 is accused No.2 and Crl.R.P.No.883/217 is accused No.6 in the said case. For the purpose of convenience, the Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 5 parties will be referred according to their ranks before the trial Court.
3. The accused were prosecuted in C.C.No.1664/2011 for the offences punishable under Section 120-B, 420 readwith Section 34 of IPC and Sections 118, 119, 120 of Karnataka Education Act, 1983 ('the KE Act' for short) on the basis of the charge sheet filed by Chitradurga Town Police in Crime No.214/2011 of their police station.
4. The case of the prosecution in brief is as follows:
(i) The accused with an intention to make wrongful gain conspired to prepare the answer sheets of the question paper for the subject Electricals of ITI course examination to be held on 25.07.2011. In execution of such conspiracy the accused secured the question papers as per Ex.P4 to P23 and answer sheets as per Ex.P24 to 47.
(ii) On the basis of credible information of accused attempting to sell the answer sheets near the Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 6 examination centre, PW.3 the Police Inspector, DCIB, Chitradurga intercepted the car of the accused bearing Registration No.KA-16 B 6400 near National Hotel at 10.00 am. He apprehended the accused and on their search Exs.P4 to 47 were recovered from them. He seized the same under the Mahazar Ex.P1 in the presence of PWs.1 and 2. During such mahazar he also seized M.Os.1 to 8 the plastic cover containing Ex.P4 to 47, 6 mobile phones of the accused and cash of Rs.19,300/-. The car in question was also seized.
(iii) Then PW.3 verified Exs.P4 to 23 by securing the question papers through the Principal of Government ITI Women's College. The said principal secured them through Tahsildar from Treasury. On verification it was found that Exs.P4 to 23 were Xerox copies of original question papers. In that regard, he secured the report from the Principal of the College as per Ex.P3. PW.3 with all those records submitted the complaint/report as per Ex.P2 before PW.5 the PSI of Chitradurga Town Police Station.
Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 7
5. On the basis of such complaint, PW.5 registered the FIR Ex.P50. He conducted the investigation and filed the charge sheet. PWs.4 and 6 at the relevant time were working as Head Constable and Constable in DCIB, Chitradurga. They accompanied PW.3 during the raid and recovery of Exs.P4 to 47 and M.Os.1 to 8 and attested their signatures to the mahazar Ex.P1.
6. The trial Court on taking cognizance of the aforesaid offence conducted the trial. After hearing the parties, the trial Court by the judgment and order dated 28.05.2015 acquitted the accused for the offences punishable under Sections 118, 119 and 120 of the KE Act. However, the trial Court convicted the accused for the offences punishable under Sections 120-B, 420 read with Section 34 IPC. Further the trial Court sentenced the accused to the aforesaid offences as follows:
Convicted for the Sl. Fine Default Offences Under Sentence No. Amount Sentence Section 120-B r/w 34 of RI for six SI for 2
1. 2,000/-
IPC months months RI for 3 SI for 6 2. 420 r/w 34 of IPC 3,000/- years months Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 8 7. The trial Court held that though the
mahazar witnesses PWs.1 and 2 did not support the prosecution case, the evidence of PW.3 the complainant, PWs.4 and 6 members of raiding squad was credible and that evidence was further corroborated by the evidence of Investigating Officer PW.5. The trial Court held that the apprehension of the accused and seizure was not within the distance of 100 meters from the examination center, therefore the charge under Section 119 of the KE Act does not survive. The trial Court further held that since there was no impersonation in the examination or alteration of the answer written in the examination, the charges under Section 118 and 120 of the KE Act also are not sustainable.
8. The State did not prefer any appeal against the acquittal of the accused for the offences punishable under Sections 118, 119 and 120 of the KE Act. That order attained finality. Accused challenged the order of their conviction and sentence for the charges for the offences punishable under Sections 120-B, 420 read Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 9 with Section 34 of IPC before the Sessions Court in Criminal Appeal Nos.25/2015 and 27/2015.
9. The Sessions Court by the impugned judgment and order dated 29.05.2017 dismissed the appeals and confirmed the trial Court's order on the ground that the trial Court on properly appreciating the evidence and the precedents has come to appropriate conclusion. Therefore, there are no reasons to interfere with the same.
Submissions of Sri Vishwanath R.Hegde, Sri Jaganmohan M.T and Sri P.B.Umesh, learned counsel for the petitioners:
10. The initial burden of proving the charges was on the prosecution. The star witness of prosecution PWs.1 and 2 did not support the prosecution case regarding search and seizure. The only other witnesses who supported the prosecution were all police witnesses and interested witnesses. There were lots of material discrepancies, contradictions in the evidence of said official witnesses. The trial Court overlooked them and Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 10 without any corroboration for their evidence convicted the appellants. There were total lack of application of mind on the part of the trial Court as well as First Appellate Court. The same is evident from the fact that the trial Court framed the charges for the offences punishable under Sections 118 to 120 of KE Act without there being any such allegations.
11. To prove the offence under Sections 118 to 120 of the KE Act, the prosecution was required to establish that Ex.P4 to P23 were the copies of the original question papers. To establish that, the original question papers were not seized. Exs.P4 to 47 were all hand written Xerox copies. The originals of those documents were not seized. The charges under Sections 120-B and 420 of IPC were based on the charges punishable under Sections 118 to 120 of the KE Act. On acquittal of the accused for the offences punishable under Sections 118 to 120 of the KE Act, the charges for the offences under Sections 120-B and 420 read with Section 34 of IPC had no legs to stand. The First Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 11 Appellate Court without re-appreciation of the evidence and law on the point independently, mechanically confirmed the trial Court's judgment and order. Thereby it failed to exercise the jurisdiction vested on it.
12. In support of their contentions they relied on the judgment of Supreme Court in Lalmandi vs. State of West Bengal1.
Submissions of the learned High Court Government Pleader:
13. Though PWs.1 and 2 the mahazar witnesses turned hostile, the evidence of PWs.3 to 6 with regard to the overtacts of the accused was cogent and consistent. They had no ill-will against the accused to falsely implicate them in the case. Therefore there was no reason to disbelieve them. The alleged inconsistencies or discrepancies, if any were minor one and they did not demolish the whole case of the prosecution. The Courts are not expected to proceed 1 AIR 1995 SC 2265 Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 12 with prejudice or bias that the police witnesses are not trustworthy.
14. Since there was delay of two years between the date of incident and recording the evidence of witnesses, some minor inconsistencies are bound to occur and they cannot be magnified out of proportion.
Therefore, rightly trial Court and First Appellant Court ignored those inconsistencies.
15. In support of his submissions he relied the following judgments:
i) Kulwinder Singh and another Vs. State of Punjab2
ii) Sate of Uttar Pradesh Vs. Naresh & ors3
16. Having regard to the submissions of both side, the question that arises for consideration is 'Whether the impugned order of the conviction and sentence is sustainable in law?'.
17. It is no doubt true that the trial Court and the First Appellate Court have rendered the concurrent 2 (2015)6 SCC 674 3 (2011)4 SCC 324 Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 13 findings. Unless it is shown that the findings of the trial Court and the First Appellate Court suffer glaring legal infirmity, the scope of interference of this Court in the matter is minimum. However, at the same time, the order of conviction and sentence shall be based on adherence to the basic principles of appreciation of the evidence and law.
18. As already noted, the accused were tried for the offences punishable under Sections 120-B and 420 read with Section 34 of IPC and under Sections 118, 119 and 120 of KE Act. The allegations were that the accused for monetary gain dishonestly secured the question papers of the subject Electrical ITI course, which was set for the examination scheduled to be conducted on 25.07.2011 in Chitradurga. Admittedly Exs.P4 to 23 the alleged question papers viz., Ex.P24 to 47 alleged answer sheets were not the original documents, they were the xerox copies. The originals of those documents were not seized.
Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 14
19. The charges under Sections 120-B and 420 read with Section 34 of IPC sustain only if the charges under Section 118 to 120 of KE Act were proved. Section 118 of the KE Act is the penal provision for violation of Section 25 of the KE Act. Section 25 of the KE Act prohibits impersonation of the candidates at the examination centres and Section 118 of the KE Act prescribes punishment of imprisonment of one year or fine up to Rs.10,000/- for the said offence.
20. Section 119 is a penal provision for violation of Section 26 of the K.E Act. Section 26 of the Act prohibits loitering within 100 meters of the examination centers or evaluation centers. Section 119 prescribes punishment of sentence of imprisonment up to three months and fine upto Rs.1000/- for the contravention of Section 26.
21. Section 120 of the K.E Act is also a penal clause for violation of Section 27 of the said act. Section 27 of the said Act prohibits the alteration of answers written in the examination or tampering the same.
Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 15 Section 120 prescribes punishment of imprisonment upto one year or fine which may extend to Rs.5,000/- for contravention of section 27.
22. As held by the trial Court, there were no allegations of impersonation or alteration of answer sheets. Even the loitering within 100 meters of examination center was not proved. Therefore, the trial Court acquitted them of all those charges.
23. To convict a person for the offence punishable under Section 420 of IPC, the ingredients of Section 415 of IPC have to be satisfied. It is relevant to find out whether there was any act on the part of the accused attracting Section 415 of IPC. Section 415 of IPC reads as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 16 were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this section."
24. The reading of the above provision shows that to constitute the offence of cheating, accused must fraudulently or dishonestly induce some other person. Secondly the person so induced shall be deceived and he shall deliver any property or any valuables to the accused. The allegations against the accused were that inducing the students of supplying question papers and answer sheets, the accused wanted to sell Exs.P4 to P47 to the students and make money.
25. It is not the case of the prosecution itself that any such question papers or answer sheets were sold to any students and thereby students were cheated or deceived. The accused were not charge sheeted for the attempt to commit the offence under Section 420 of Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 17 IPC. Neither in the charge sheet nor in the charge Section 511 of IPC was included.
26. The Investigating Officer did not conduct any investigation to trace the source of Exs.P4 to P47. It was contended that the answer sheets Exs.P4 to P47 had some answers to the question papers set for the said examination. To prove that, the prosecution relied on Ex.P3, the communication of Principal of Government Women's Industrial Training Institute, Chitradurga. Ex.P3 purports to be a letter given by the said Principal to the complainant - PW.3. It is not even her report.
27. The complaint as well as Ex.P3 state that the original question papers were in the District Treasury. On the order of the I Additional Deputy Commissioner, the Tahsildar and the Central Examination Superintendent brought the box containing question papers to the examination center and they were opened in the presence of Tahsildar at 1.00 p.m. Sri.C.S.Umachigi, the Central Superintendent of their college compared the answer sheets furnished by the Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 18 complainant with those question papers. It is further stated in the report that answers were tallying with question Nos.1, 4 and 7 of those question papers.
28. For the reasons best-known to the Investigating Officer, he did not even cite the said Sri C.S.Umachigi, the Central examination Superintendent or the author of Ex.P3 and the Tahsildar as charge sheet witnesses. They were not examined before the Court. Even as per the said report Exs.P24 to 47 were not the answer sheets for the entire question papers. The other aspects are that as per the charge and the charge sheet, the question paper of the subject Electricals was leaked. In Ex.P3 communication it is said that answer sheets given to them for verification pertained to Electrical subject. But in the complaint, P.W.3 says that Principal gave the report saying that the answer sheets related to the subject workshop, calculation, Electrician and Science examination.
29. Under such circumstances the seizure of Exs.P4 to 47 should have been satisfactorily proved. The Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 19 only independent witnesses for the seizure were PWs.1 and 2. PWs.1 and 2 did not even identify the accused before the Court. PWs.1 and 2 are the owner and supplier of the hotel in Chitradurga. They state that police had come to their hotel to have Tea and obtained their signatures on Ex.P1 saying that some galata has taken place. They state that when the police took their signatures on Ex.P1 except police there were no others and nothing was seized in their presence. Nothing could be elicited in the cross-examination of those witnesses to show that in any way they are interested in the accused or known to the accused.
30. In the light of such basic lacuna or inconsistency in the evidence of the prosecution, the evidence of PWs.4 to 6 require corroboration. The evidence of police witnesses can be relied, if the same is found to be convincing and satisfactory. If there are some circumstances which raise reasonable doubt about the trustworthiness of their evidence, that requires corroboration.
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31. As already discussed non-seizure of originals of Exs.P4 to 47, non-examination of the Tahsildar, Principal of the college and Central Superintendent of examinations who allegedly compared the original question papers with Exs.P4 to 47, the non-seizure of the said original question papers are material omissions and discrepancies in the investigation. Such discrepancies or lapses were not explained by the prosecution.
32. Since the contradictions and omissions in the evidence of the prosecution are material and go to the root of the matter, create serious doubt about the truthfulness of the witnesses. The judgment of the Hon'ble Supreme Court in Naresh's case referred to supra relied on by learned HCGP cannot be justifiably applied to the facts of the present case.
33. Despite there being such material inconsistencies and contradictions going to the root of the matter, the trial Court only relying on the evidence of police witnesses convicted the accused.
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34. As per the prosecution, the preparation of the question papers and answer sheets were for the purpose of examination mal practice. The trail Court having held that such mal practices were not proved, convicted of the accused, even if none of the ingredients of Section 420 of IPC were not made out.
35. To constitute the offence of criminal conspiracy, there should be agreement between two or more persons to do an illegal act. The prosecution was required to prove such agreement. Absolutely there was no evidence of such agreement, particulars of such agreement ie., time, place and persons involved in such agreement were not made out. There were no witnesses to such conspiracy. Without proving of such conspiracy the trial Court convicted and sentenced the accused for the said offence also.
36. The first appellate Court except repeating whatever is said by the trial Court did not independently re-appreciate or reanalyze the question of facts, the Crl.R.P.No.710/2017 C/W Crl.R.P.No.665/2017, Crl.R.P.No.883/2017 22 evidence and the legal position. The First Appellate Court did not meet any of the grounds raised in the appeal.
37. In para 5 of the judgment in Lalmandi's case referred to supra, the Hon'ble Supreme Court held that the appellate Court has a duty to itself appreciate the evidence on record and if two views are possible on the material on record, the benefit of reasonable doubt has to be given to the accused. It was further held that the appellate Court is duty bound in the same way as the trial Court to test evidence extrinsically as well as intrinsically and to consider thoroughly as the trial Court all the circumstances available on record so as to the arrive at an independent finding regarding guilt or innocence of the convict. It was further held that the Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on record and arrive at an independent finding based on appraisal of such evidence.
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38. The judgment of the First Appellate Court overwhelmingly shows that there was no such re- appreciation of the evidence or legal position or arriving at the independent conclusion based on the re-appraisal of such evidence. Therefore the same is unsustainable. Accordingly, the following:
ORDER The Revision Petitions are allowed. The impugned order of conviction and sentence passed by the trial Court and the First Appellate Court are hereby set aside.
The petitioners-accused Nos.1 to 6 are hereby acquitted of the charges for the offences punishable under Sections 120-B and 420 read with Section 34 of IPC. Their bail bonds stand cancelled.
The fine amount deposited by the petitioners, if any, shall be refunded to them.
Sd/-
JUDGE akc