Karnataka High Court
Nandakumar vs State Of Karnataka on 28 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.847/2021
C/W.
CRIMINAL REVISION PETITION NO.937/2021
CRIMINAL REVISION PETITION NO.848/2021
IN CRIMINAL REVISION PETITION NO.847/2021:
BETWEEN:
1. G. NARENDRA KUMAR
S/O LATE K. GURUMURTHY
AGED ABOUT 62 YEARS,
NO.1701, 7TH MAIN, II STAGE,
I BLOCK, RAJAJINAGAR,
BENGALURU-560010.
PRESENTLY AT 24/5,
HURALICHIKKANAHALLI ROAD,
NEAR MASJID, KODAGI THIRUMALAPURA,
HESSARGHATTA MAIN ROAD, HESARAGHATTA,
BENGALURU-560 089. ... PETITIONER
(BY SRI. S.G.BHAGAVAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE POLICE INSPECTOR
ULSOOR GATE POLICE STATION
BENGALURU-560 009. ... RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 09.07.2021 PASSED BY THE
LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-64) IN CRL.A.NO.1401/2015 DISMISSING
THE SAME AND CONFIRMING THE JUDGMENT DATED
16.11.2015 PASSED BY THE VI ADDL.C.M.M., BENGALURU IN
C.C.NO.15101/1998 CONVICTING HIM FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120B, 109, 465, 419, 468, 474,
477(A), 471, 420, 201 OF IPC AND THE ORDER DATED
18.11.2015, SENTENCING HIM TO UNDERGO SIMPLE
IMPRISONMENT FOR 6 MONTHS FOR EACH OFFENCE
CONVICTED AND TO PAY A FINE OF RS.5,000/- FOR EACH
OFFENCE CONVICTED AND IN DEFAULT OF PAYMENT OF FINE
TO UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 1 MONTH
FOR EACH OFFENCE AND TO ACQUIT HIM.
IN CRIMINAL REVISION PETITION NO.937/2021:
BETWEEN:
1. NANDAKUMAR
S/O NARAYANA RAO
AGED ABOUT 60 YEARS
R/AT ANANDANIKETHANA
AECS LAYOUT, 3RD STAGE
GEDALAHALLI
BANGALORE - 560094
2. A V R SHRAMA @
AKELA VENKATARAMA SHARMA
S/O A R K MURTHYA
AGED ABOUT 55 YEARS
R/AT NO.290/6,
3RD 'A' CROSS, 9TH MAIN ROAD,
4TH BLOCK, JAYANAGAR,
BANGALORE - 560009.
3
PRESENTLY RESIDING
AT NO.1238, 6TH CROSS,
27TH MAIN, J.P.NAGAR 1ST PHASE
BANGALORE - 560 078. ... PETITIONERS
(BY SRI. MAHESH P., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY HALSURGATE POLICE STATION
BANGALORE
REPRESENTED BY SPP
DR. B.R.AMBEDKAR VEEDHI
HIGH Court OF KARANTAKA
BANGALORE-560 001. ... RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION397 R/W 401 OF CR.P.C PRAYING TO
A. SET ASIDE THE JUDGMENT OF THE HONBLE TRIAL COURT,
DATED 16.11.2015 IN C.C.NO.15101/1998 PASSED BY THE VI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU
CONVICTING THE PETITIONER AND SENTENCED TO UNDERGO
FOR THE OFFENCE PUNISHABLE UNDER SECTION 120-B OF IPC,
SIMPLE IMPRISONMENT OF 6 MONTHS AND TO PAY FINE OF
RS.5000/- SENTENCED TO UNDERGO FOR THE OFFENCE
PUNISHABLE UNDER SECTION 109 OF IPC, SIMPLE
IMPRISONMENT OF 6 MONTHS AND TO PAY FINE OF RS.5000/-
SENTENCED TO UNDERGO FOR THE OFFENCE PUNISHABLE
UNDER SECTION 465 OF IPC, SIMPLE IMPRISONMENT OF 6
MONTHS AND TO PAY FINE OF RS.5000/- SENTENCED TO
UNDERGO FOR THE OFFENCE PUNISHABLE UNDER SECTION 419
OF IPC SIMPLE IMPRISONMENT OF 6 MONTHS AND TO PAY FINE
OF RS.5000/- SENTENCED TO UNDERGO FOR THE OFFENCE
PUNISHABLE UNDER SECTION 468 OF IPC SIMPLE
IMPRISONMENT, OF 6 MONTHS AND TO PAY FINE OF RS.5000/-
SENTENCED TO UNDERGO FOR THE OFFENCE PUNISHABLE
UNDER SECTION 474 OF IPC , SIMPLE IMPRISONMENT OF 6
4
MONTHS AND TO PAY FINE OF RS.5000/- SENTENCED TO
UNDERGO FOR THE OFFENCE PUNISHABLE UNDER SECTION
477A OF IPC, SIMPLE IMPRISONMENT OF 6 MONTHS AND TO
PAY FINE OF RS.5000/- SENTENCED TO UNDERGO FOR THE
OFFENCE PUNISHABLE UNDER SECTION 471 OF IPC, SIMPLE
IMPRISONMENT OF 6 MONTHS AND TO PAY FINE OF RS.5000/-
SENTENCED TO UNDERGO FOR THE OFFENCE PUNISHABLE
UNDER SECTION 420 OF IPC, S.I OF 6 MONTHS AND TO PAY
FINE OF RS.5000/- SENTENCED TO UNDERGO FOR THE
OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC, SIMPLE
IMPRISONMENT OF 6 MONTHS AND TO PAY FINE OF RS.5000/-
IN DEFAULT OF PAYMENT OF FINE AMOUNT, TO UNDERGO
FURTHER I MONTH OF SIMPLE IMPRISONMENT FOR EACH
OFFENCE AND TO SET ASIDE THE JUDGMENT PASSED ON
09.07.2021 IN CRL.A.NO.1503/2015 BY THE HONBLE LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-64) AT
BENGALURU CONFIRMING CONVICTION ORDER OF TRIAL
COURT FOR THE SAME OFFENCE.
IN CRIMINAL REVISION PETITION NO.848/2021:
BETWEEN:
1. A. RAMACHANDRAN
S/O APPAVUNAIDU
AGED ABOUT 56 YEARS
OCC: RETD. PROFESSOR
R/AT 690, 2ND CROSS
ASHOKA NAGAR, BSK-I STAGE
BENGALURU CITY-560001. ... PETITIONER
(BY SRI. CHANDRAMOULI H.S., SENIOR COUNSEL FOR
SRI. RAJATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE POLICE OF HALASURUGATE P.S.,
5
BANGALORE-560002
REP. BY THE STATE PUBLI PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE - 560001. ... RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 09.07.2021 PASSED BY THE LEARNED LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-64) IN CRL.A.NO.1515/2015, CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION PASSED AGAINST THE
ACCUSED NO.2 (THE PETITIONER HEREIN) IN
C.C.NO.15101/1998 DATED 16.11.2015 BY THE VI ACMM,
BANGALORE.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 05.02.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard learned counsels for petitioners and learned HCGP
for the respondent-State.
2. These criminal revision petitions are filed by accused
Nos.1, 2, 5 and 8 challenging the judgment of conviction and
sentence passed in C.C.No.15101/1998 and confirmation of the
judgment of Trial Court by the First Appellate Court in
Crl.A.Nos.1401/2015, 1503/2015 and 1515/2015.
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3. The factual matrix of the case of the prosecution is
that, at the time of B.E. Computer Science valuation during
February-March 1996, in order to get benefit in the valuation,
accused persons formed criminal conspiracy to commit other
offence and accused Nos.1, 2 and 8 abetted to other accused to
commit the offence and created documents, with a common
intention, accused Nos.1, 2, 5 and 8 destroyed original marks list
and prepared duplicate marks list and cheated to the Bangalore
University and forged record of University i.e., possessed
duplicate marks lists knowing it forged document with an
intention to use the same as genuine and thereby, defrauded the
University and also forged marks list by destroying answer
papers, original marks list and also destroyed original answers
paper and marks list and thereby committed the offences.
4. When the case was taken up for trial, accused Nos.3,
4, 6, 7 and 9 to 11 did not appear and split up case has been
registered. Hence, accused Nos.1, 2, 5 and 8 have faced the
trial. It is the case of the prosecution that accused Nos.1 and 8
worked as valuators in Computer Science Engineering
7
examination held during February-March 1996. The accused
No.2 worked as custodian and accused No.5 being failed student
colluded with accused Nos.1, 2 and 8 and managed to get
passing marks in Computer Science exam. The police registered
the case based on the complaint, investigated the matter and
filed the charge-sheet against the accused persons and these
accused persons did not plead guilty and hence, trial was
conducted.
5. The prosecution examined the witnesses as P.Ws.1
to 14 and got marked the documents as Exs.P1 to P390. The
accused persons were subjected to 313 statement and they have
not led any defence evidence. The Trial Court considering both
oral and documentary evidence placed on record, convicted the
accused persons for the offence punishable under Sections 120B,
109, 465, 419, 468, 474, 477(A), 471, 420 and 201 IPC and for
all the offences, the accused were sentenced to undergo simple
imprisonment for a period of six months with fine of Rs.5,000/-
each to all the offences.
8
6. Being aggrieved by the judgment of conviction and
sentence, the accused persons preferred appeals before the First
Appellate Court in Crl.A.Nos.1401/2015, 1503/2015 and
1515/2015 and common judgment was pronounced having
reassessed the material on record. The First Appellate Court
comes to the conclusion that the Trial Court has not committed
any error in appreciating the evidence and impugned judgment
does not require any interference and answered the points for
consideration as 'negative'. Being aggrieved by the judgment of
conviction and sentence and confirmation made by the First
Appellate Court, present criminal revision petitions are filed
before this Court.
7. In Criminal Revision Petition No.847/2021,
petitioner/accused No.8, learned counsel for the petitioner would
contend that case was registered in the year 1998 in Crime
No.193/1997 and charges are also framed against accused
Nos.1, 2, 5 and 8. The Trial Court committed an error in
considering the material available on record. The main ground
urged in the revision petition is that both the Courts failed to
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consider the material on record and particularly, in the
statement under Section 313, not put incriminating materials
i.e., both oral and documentary evidence to the accused. In
order to prove the offence of criminal conspiracy punishable
under Section 120B IPC, the prosecution must prove that there
was an agreement by the accused to commit an offence and
there must be meeting of minds of the accused persons. In the
case on hand, no witness is examined on behalf of the
prosecution, in order to prove the chain of circumstance to
invoke Section 120B IPC. It is also contended that there is no
oral or documentary evidence to satisfy the ingredients of
offence under Section 109 IPC. It is further contended that the
charge for the offence under Section 468 IPC framed for the
offence of forgery is independent offence, wherein an allegation
is made that accused No.1 with a common intention to cheat the
University, destroyed original marks list and thereby committed
an offence punishable under Section 468 IPC. It is also
contended that narration of the facts of that charge does not
come within the purview of the definition of forgery defined in
Section 463 IPC. The offence under Section 463 IPC
10
contemplates creation of a false document, not destruction and
both the Courts failed to take note of said fact into consideration.
8. It is also contended that Section 149 IPC was
invoked and the same is with regard to common object is
concerned and while invoking Section 419 IPC, it is alleged that
petitioner and accused Nos.1, 2 and 5 impersonated other
persons with an intention to cheat and prepared duplicate marks
sheets and there is no evidence in the prosecution material that
the petitioner personated any person with an intention to cheat
and thereby prepared duplicate marks lists. There is no evidence
in the prosecution material that petitioner impersonated any
person with an intention to cheat. The other offence under
Section 474 IPC is that the petitioner possessed forged
document i.e., duplicate marks list knowing it to be forged
document and intending to use it as genuine and nothing is
placed on record by the prosecution that the petitioner had
possessed any forged document. The offence invoked under
Section 477(A) IPC is also that he created false marks lists with
an intention to defraud the University and there is no evidence
11
to that effect. Even for invoking the offence under Sections 471
and 420 IPC that the petitioner destroyed original marks list and
prepared forged marks list and destroyed the answer scripts
also, no material is placed on record. But, the Trial Court and
the First Appellate Court committed an error in not considering
the material on record in a proper perspective.
9. It is further contended that there is a delay in
lodging the complaint and FIR was registered only on
20.02.1997. There is a delay over one year in lodging the
information which is unexplained. Learned counsel would
contend that regarding the evidence of P.Ws.12 and 14 is
concerned, after chief examination, they were not subjected to
cross-examination. Hence, the prosecution ought not to have
considered the evidence of P.Ws.12 and 14 and order suffers
from its legality and correctness. Learned counsel also would
vehemently contend that this judgment is not at all a judgment
and the name of this petitioner was not mentioned in the FIR
and not proved the offence alleged against this petitioner and
12
this petitioner is only a valuator and P.W.10 has not stated
anything about the role of this petitioner.
10. In Criminal Revision Petition No.848/2021, learned
Senior counsel appearing for the petitioner/accused No.2 would
contend that there were 11 persons, who have been arraigned
as accused Nos.1 to 11 and this petitioner is accused No.2. It is
contended that 11 students have been implicated and no
Departmental Enquiry is initiated against this petitioner, who is
accused No.2 and his role is only to handover the papers for
valuation. The judgment of the Trial Court in paragraph Nos.14
and 15 is contrary to each other. It is contended that the First
Appellate Court also, not appreciated the same in a proper
perspective and there was a delay in lodging the complaint and
complaint is also not a legal complaint and this incident has
taken place long back i.e., 27 years ago and judgment of
conviction and sentence is not sustainable. He would further
contend that the Investigating Officer, who has been examined
as P.W.14 has not been subjected to cross-examination and his
evidence ought not to have been relied upon by the prosecution.
13
The allegation against this petitioner is that he committed the
offence of abetment and except the said offence, no other
offence is alleged against this petitioner.
11. In Criminal Revision Petition No.937/2021, learned
counsel appearing for the petitioners/accused Nos.1 and 5
adopts the arguments canvassed by the learned Senior counsel
appearing for petitioner/accused Nos.2 in Criminal Revision
Petition No.848/2021 and learned counsel appearing for
petitioner/accused No.8 in Criminal Revision Petition
No.847/2021.
12. Per contra, learned HCGP for the respondent-State
would vehemently contend that there was conspiracy and the
same is spoken to by P.W.10. With regard to manipulation of
document and creation of forgery is concerned, Exs.P4 to P23-
duplicate marks lists are produced before the Court and Exs.P24
to P27 and Exs.P35 and P36 are marks lists which have been
tampered and altered the marks which have been given by the
valuators, who have been examined as P.Ws.2 to 9. He would
contend that P.W.1 is the complainant, who gave the complaint
14
and based on the complaint, case was registered and Ex.P1 is
the complaint. He would vehemently contend that P.Ws.2 to 9
are the valuators, who categorically deposed that the signature
found therein not belongs to them and created the marks list.
P.W.10 is the Doctor, who categorically deposed with regard to
the manipulation and forgery. He also would contend that both
the Courts in detail discussed act of these petitioners and found
the material and even the First Appellate Court also in detail
discussed in the judgment, particularly in paragraph No.26 of the
judgment. He would vehemently contend that P.W.11, who is the
Professor also deposed before the Court with regard to the
manipulation and forgery and creation of document and P.W.12
is the Scientific Officer, who conducted scientific examination of
the papers, which have been sent to him. It is contended that
though P.W.14 has not been cross-examined and his evidence is
not reliable, the evidence of other witnesses is available before
the Court. He would further contend that both the Courts in
detail discussed the material on record and given definite finding
that these accused persons, who happen to be the valuators,
custodian and student have indulged in creation of documents
15
and involved in the act of forgery and active role was played in
preparing duplicate marks card.
13. In reply to this argument of learned HCGP for the
respondent-State, learned counsel for petitioner/accused No.2 in
Criminal Revision Petition No.848/2021 would contend that the
First Appellate Court ought to have remanded the matter, since
there is no material against the petitioner to prove the alleged
act and no proper discussion with regard to the material on
record and once the Investigating Officer was not cross-
examined, the First Appellate Court ought to have remanded the
matter to the Trial Court.
14. Having heard learned counsels for the petitioners,
learned HCGP for the respondent-State and also having perused
the material on record and also the grounds urged in each of
these criminal revision petitions, the points that would arise for
consideration of this Court are:
(i) Whether the Trial Court committed an error in
convicting and sentencing the petitioners and
confirmation of the same by the First Appellate
16
Court was an error and whether the order
impugned suffers from its legality and
correctness to invoke revisional jurisdiction?
(ii) What order?
15. Having considered the grounds urged in all the
revision petitions and also oral submissions of respective
counsels for the petitioners and also learned HCGP for the
respondent-State, this Court has to analyze the material on
record. Though the scope of the revision is very limited, since
there is a concurrent finding of the Trial Court as well as the First
Appellate Court in arriving at such a conclusion, this Court while
exercising the revisional powers, considering the scope and
ambit of the revision, see whether the judgment of conviction
and sentence suffers from its legality and correctness and
reanalyze the same.
16. Having considered the material on record and factual
aspects of the case, this Court would like to sum up nutshell of
the case of the prosecution that at the time of B.E. Computer
Science valuation held during February-March 1996, in order to
17
get benefit in the valuation, accused persons formed criminal
conspiracy and accused Nos.1, 2 and 8 abetted other accused to
commit the offence and created documents and with a common
intention, accused Nos.1, 2, 5 and 8 destroyed original marks list
and prepared duplicate marks list i.e., Exs.P4 to P23 and original
marks list are forged i.e.., Exs.P24 to P27, P35 and P36 and
replaced the same and cheated Bangalore University and forged
the records and possessed duplicate marks lists knowing fully
well that the same are forged documents with an intention to
use the same as genuine documents. In order to prove the
charges leveled against them, though cases are registered
against several persons, case was split up, in view of the fact
that other accused persons were not secured and only these
petitioners have faced trial. It is not in dispute that accused
Nos.1 and 8 worked as valuators in B.E. Computer Science
Engineering Examination held during February-March 1996. It is
also not in dispute that accused No.2 is a custodian and accused
No.3 being a student colluded with other accused persons and
managed to get passing marks.
18
17. The prosecution mainly relied upon the evidence of
P.Ws.1 to 14 and relied upon the documents of Exs.P1 to P390.
The charges leveled against the petitioners are abetment,
conspiracy, forgery, cheating and making use of the forged
documents as genuine documents. Keeping in view the
contentions alleged in the revision petitions, this Court has to
analyze the material on record. It has to be noted that
prosecution mainly relied upon the evidence of P.W.1, who is the
complainant, who gave complaint and based on the complaint,
case has been registered. It is also the case of the prosecution
that accused Nos.3 to 7 and 9 to 11 are the students, who failed
in the examination. The main contention of the petitioners before
this Court is that, Investigating Officer is not examined and the
evidence placed before the Court is not sufficient to convict the
accused and in the absence of evidence of Investigating Officer,
the judgment passed by the Trial Court is not a judgment at all.
It is also contended that name of accused No.8 is not mentioned
in the FIR. It is also the contention of learned counsel appearing
for accused No.2 that no DE is initiated against him, who worked
as custodian of the papers and his job is only to handover the
19
papers for valuation and there was a delay in lodging the
complaint and the offences alleged against them is not
sustainable. Learned counsel appearing for accused Nos.1 and 8
in Crl.R.P.No.937/2021 adopted the arguments of learned
counsel for accused No.5 and learned counsel for accused No.2.
The Court has to take note of the material available on record
with regard to exercising its revisional jurisdiction.
18. It is important to note that P.W.1, who is the
Registrar (Evaluation) of Bangalore University has lodged the
complaint and case has been registered at the first instance for
the offence punishable under Sections 465 and 468 IPC, wherein
it is mentioned that some of the members of the academic
council/syndicate and senate have urged Vice-Chancellor to look
into the alleged malpractices in the valuation of B.E. Degree
course that was held in the month of February 1996.
Accordingly, the Vice-Chancellor was pleased to appoint a
Special Co-ordinator to conduct thorough verification relating to
the Computer Science branch and submit a report in detail. The
Special Co-ordinator has submitted a detailed report to this
20
effect on 18.02.1997 along with enclosures with a request to
take up this case and investigate the matter and particularly, the
report indicates register numbers, answer book number including
additional answer books, year of exam, name of the subject,
nature of malpractice, script code, original answer books,
including main answer books and additional answer books in
respect of the register numbers mentioned in the report
numbering 31. Taking note of the contents of Ex.P1, no doubt,
particularly not made any specific allegation against the accused
persons, but relied upon Ex.P2-letter dated 11.03.1997 of P.W.1
forwarding answer books and also Ex.P3-original marks list of
B.E. examination held during February 1996 and Programming.
Exs.P4 to P23 are mark sheets with main and additional answer
sheets, which are all disclose that the candidates have secured
more than 35 marks and that marks have been added to it by
way of rectifying the initial marks. Exs.P24 to P27 are all marks
list of 4th year B.E. and Exs.P28 to P30 are specimen signatures
of Sri R. John Stephen. Exs.P31 to P34 are model handwritings
of Sri R. John Stephen. Exs.P35 and P36 are mark lists that
contain seals and signatures of accused No.2, who is one of the
21
petitioner herein and worked as custodian. Exs.P37 to P39 are
sample signatures of valuators and Exs.P40 to P43 are model
handwritings of witnesses. Exs.P45, P46, P47 to P58 and P59 to
P155 are specimen signatures of model handwritings of accused
No.1. Ex.P156 is the letter of accused No.1 dated 02.09.1992
addressed to Principal. The other documents are also relied
upon with regard to the specimen signatures.
19. It is also important to note that the documents which
have been forged were also subject to Scientific Officer's
examination and Ex.P389 is the FSL report dated 28.05.1998.
The report discloses that all the aforesaid documents have been
scientifically examined and handwritings not tallies with the
disputed handwriting in the marks lists. Ex.P390 is the detailed
reasons for opinion submitted as per Ex.P389. In terms of the
contents of the report at Ex.P390, it is clear that the writings in
the disputed marks list and the writings on the original marks list
and answer book are not resembled to one and the same
persons. The said report discloses that the disputed writings and
admitted writings are tallied with each other. In Ex.P24 to P27-
22
marks lists, the signatures of accused No.2 are identified as Q-
35, Q-38, Q-37 and Q-39 respectively. The documents marked
as Exs.P24 to P27 are identified by the Expert as Q-15, Q-18, Q-
17 and Q-19 respectively. The signature of Srinath on Ex.P24 is
identified as Q-112, signature of Y.C. Reddy is identified as Q-
48. In Ex.P25, signature of K.A.R. Shetty is identified as Q-116.
Signature of A. Ramachandran is identified as Q-62. Signature of
R. John Stephen in Exs.P26 and P27 are all identified as Q-114.
Q-115, Q117 and Q-118 respectively. The reports are also given
identifying the signatures.
20. Having considered both oral and documentary
evidence placed on record, particularly taking note of the
evidence of P.W.2, he categorically says that while handing over
answer papers, the same are decoded and P.W.3 speaks that he
has valued the answer sheet-Ex.P8 and that he has written
marks 49 in the face sheet of Ex.P8. But the marks list shown to
him is not written by him and taken note of the document of
Ex.P8 is forged document. So also in respect of evidence of
P.W.4-valuator, the same discloses that he valued Ex.P25-
23
answer sheet and that his signature is not there. But, signature
marked as Q-116 is not signed by him. Marks entered in Ex.P25
also are not in his handwriting and the same has been forged
and fabricated, so also the evidence of P.W.5 is similar, who had
valuated Ex.P26. In his evidence, he says that P.Ws.3 to 5 have
not been cross-examined by any of the accused persons and the
same is accepted.
21. It is also important to note that P.W.6 has valued the
marks sheet-Ex.P27, wherein also his signature was not found
and signature made in Exs.P28 to P30 are his sample signatures.
P.W.7 is also a valuator and he has valuated Ex.P10-answer
script. He has deposed that the handwritings on Exs.P8 to P12
differ from each other and in Ex.P35, his signature is there. So
also, P.W.8, categorically deposes that accused No.2 is the
custodian of valuation centre and handwritings in Ex.P36 is not
his handwriting. But, he identifies his signature in the
handwriting Exs.P37 to P43. The other witness is P.W.9, who
speaks that accused No.2 was custodian and Ex.P16-answer
sheet is valued by him. He categorically says that in Ex.P16, he
24
has given only 3 marks. But, somebody has mentioned it as 3 +
3. Similarly, in page Nos.6 to 8 of Ex.P16, he has given only 10
marks. But, somebody has mentioned it as 4 marks each. So
also in page No.9 of Ex.P16, he has given only '0' marks and the
same is changed as 8 marks, instead of '0' marks and the same
is a manipulation. Having considered the evidence of these
witnesses, it is very clear with regard to forgery, manipulation
and creation of duplicate marks list and documentary evidence
discloses forgery and manipulation is concerned.
22. Now coming to the evidence of P.W.10, he was called
to the University and requested him to verify and say whether
some answer booklets were properly evaluated or not. Whether
the total marks tallies with total marks mentioned on the front
sheet of answer booklets and the same has been marked as
Ex.P13, Exs.P14 to P23 and Ex.P45. He also says that there were
alterations in the marks given to each candidate. But, his
evidence does not disclose that, who has actually valuated the
said answer booklets among accused Nos.1, accused No.8 and
other valuators. The other witness is P.W.11, who was deputed
25
to value B.E. Computer Science answer sheet and he deposes
that accused No.2 was custodian and police have obtained his
model handwritings.
23. The main evidence of prosecution is P.W.12, who is
the Scientific Officer, who conducted scientific examination of
document. He categorically deposes that he has received 20
marks list marked as Exs.P24, P25, P26, P27, P35, P36, P44,
P47 to P58 and Ex.D1. He also categorically deposes that sample
signatures and handwritings of accused No.1 in 100 sheets are
marked as Exs.P59 to P158 and he also identified the said model
handwritings and sample signatures as E-1 to E-97 and S-1 to S-
7 and model handwriting and sample signatures of A. Prabhakar
in 18 sheets which is marked as Exs.P159 to P176. He also
identified the said handwriting and sample seals as E-98 to E-
114 and S-31 and S-32. He also received the model
handwritings and sample signatures of R. Nagaraj in 17 sheets
which are marked as Exs.P177 to P193 and also identified the
said documents. So also handwriting and sample signature of
Smt. Sumitra in 22 sheets are marked as Exs.P199 to P125 and
identified the documents and so also signature of accused No.2-
26
A. Ramachandra in 50 sheets is identified by him as Exs.P216 to
P264 and specimen signature of accused No.2 as S-8 and S-13.
The model handwritings of accused No.2 as E-158 to E-201 and
E-165(1) and E-166(1) respectively. He also received the
sample signature of Y. Chandrashekar Reddy in 60 sheets which
are marked as Exs.P265 to P269 and P324 respectively.
Similarly, he has received model handwritings and sample
signatures of witness V. Ramanathan in 10 sheets which are
marked as Exs.P257 to Exs.P266 and also received the sample
signatures and model handwritings of K.A.R. Shetty in 5 sheets
which is marked as Exs.P335 to P339 and also received the
model handwriting and signature of K.S. Suresh in 7 sheets
which are marked as Exs.P342 to P348 and also model
handwritings and sample signature of N.K. Srinath in 6 sheets
which are marked as Exs.P349 to P354 and sample signature of
R. John Stephen in 7 sheets which are identified by him as
Exs.P294 to P300.
24. In respect of these witnesses as well as accused
No.8-G. Narendra Kumar, who valued the papers in 21 sheets,
27
the same are marked as Exs.P335 to P375. P.W.12 has further
deposed that after verification of sample signatures and model
handwritings of the aforesaid persons, he has submitted a report
as per Exs.P389 and P390 respectively. In the cross-examination
of this witness, nothing is elicited in support of the case of the
accused persons that he has not conducted scientific
examination of the said documents and that he has submitted
false report.
25. The other witness is P.W.13 and he has deposed that
he has taken case diary for further investigation from C.W.17.
He has sent a letter to Bangalore University with a request to
verify Xerox documents and to send a report and he has filed the
charge-sheet against the accused persons.
26. The other witness is P.W.14, the Investigating
Officer, who came and gave the evidence before the Court and
the Investigating Officer was not subjected to cross-examination.
The cross-examination was deferred at the request of accused
persons. But, later on he did not appear before the Court and no
coercive steps were taken. Hence, the evidence of P.W.14
28
cannot be considered, since he did not subject himself for cross-
examination and his evidence also cannot be considered and
based on his evidence, the Court also cannot convict a person,
since he was not subjected to cross-examination. His evidence
has to be discarded, even inspite of he has been examined as
witness and his evidence cannot be relied upon.
27. Having reassessed the material on record, the Court
has to take note of evidence of P.Ws.2 to 9, who have conducted
the valuation, wherein it is observed that mark sheets are
tampered. The evidence of P.W.2 is very clear that documents
are tampered and replaced the marks list and report is also
given in terms of Ex.P389. It is also important to note that
specimen signatures Exs.P59 to 157 are also marked and the
same were sent for scientific examination. The Trial Court as well
as the First Appellate Court also taken note of these documents
and though the Trial Court and the First Appellate Court not
discussed each and every document, but the First Appellate
Court in paragraph No.28, while considering the evidence of
P.W.12-Scientific Officer, each and every document of
29
handwritings and sample signatures have been taken note of
and particularly, analyzed the evidence in paragraph No.31 and
nothing is elicited in cross-examination of P.W.12.
28. I have already pointed out that sample signatures of
accused Nos.1, 2 and 8 and disputed signatures of accused
Nos.1, 2 and 8 were taken note of. The accused persons are
valuators and custodian, who have played major role in
manipulating the marks list in collusion with other accused
persons. But, nothing is elicited with regard to discrediting the
evidence of P.W.12 and P.W.12 categorically denied the
suggestions. The fact that accused Nos.3 to 7 and 9 to 11 are
students, who failed in the examination and they were successful
in the subsequent manipulation of documents is not in dispute.
Hence, the Court has to take note of the circumstantial evidence
with regard to criminal conspiracy to tamper the marks given to
them in the said examination and with an intention to obtain
passing marks, these petitioners, particularly accused Nos.1, 2
and 8 have destroyed the original marks list and prepared
duplicate marks list. It is not in dispute that accused No.2 is
custodian and learned counsel for accused No.2 would contend
30
that his job is only to handover papers for valuation and not only
handing over papers, but after valuation, he has to collect the
same and keep the same in his custody and the fact that he is
the custodian of answer script is not in dispute. It is also
important to note that the evidence of valuators is very clear
that whatever marks they have given are altered, tampered and
they were handed over to accused after evaluating the same. It
is also important to note that accused Nos.1 and 8 were hand-in-
glove with accused Nos.3 to 7 and 9 to 11, who are the students
and their sample handwritings have been obtained and these
petitioners, helped the students, who got less marks in the
valuation and their answer scripts disclose that they got through
in the examination.
29. Having taken note of these material on record, I do
not find any error committed by the Trial Court and the First
Appellate Court in appreciating the material on record and I do
not find any perversity in the finding of Trial Court and the First
Appellate Court having considered the evidence of P.Ws.1, 2 to
9, who are the valuators. P.Ws.10 and 11, who have been
31
deputed examined the papers and given the report. The
material witness is P.W.12, who speaks about the manipulation
and submitted a report.
30. The contention of learned counsels for the respective
petitioners is that the Investigating Officer has not been
subjected to cross-examination and his evidence is not credible,
since he was not subjected to cross-examination. Whether non-
examination of Investigating Officer is fatal to the case of the
prosecution and the same has to be analyzed by this Court.
31. In this regard, this Court would like to rely upon the
judgment of the Apex Court in RAJ KISHORE JHA VS. STATE
OF BIHAR AND OTHERS reported in (2003) 11 SCC 519. In
this judgment, the Apex Court in paragraph No.11 held that
mere non-examination of the Investigating Officer does not in
every case cause prejudice to the accused or affects the
creditability of the prosecution version and after the
examination-in-chief and partial cross-examination, the
Investigating Officer died. Therefore, this cannot be a case
which can be stated to have caused any prejudice to the accused
32
on account of the Investigating Officer's non-examination and
held that mere non-examination of the Investigating Officer does
not in every case cause prejudice to the accused or affects the
creditability of the prosecution version and also observed that
non-examination of the Investigating Officer does not in anyway
create any dent in the prosecution case, much less affect the
credibility of otherwise trustworthy testimony of the eye
witnesses as held in the judgment of the Apex Court in RAM
DEV VS. STATE OF U.P. reported in 1995 SUPP (1) SCC 547.
32. The Apex Court also in the judgment in BEHARI
PRASAD AND OTHERS VS. STATE OF BIHAR reported in
(1996) 2 SCC 317, held that non-examination of Investigating
Officer does not per se vitiate the trial. The Apex Court also
observed that entire case diary should not be allowed to be
exhibited by the trial Judge and held that it will not be correct to
contend that if an Investigating Officer is not examined in a
case, such case should fail on the ground that the accused were
deprived of the opportunity to effectively cross-examine the
witnesses for the prosecution and to bring out contradictions in
33
their statements before the police. A case of prejudice likely to
be suffered by an accused must depend on the facts of the case
and no universal strait-jacket formula should be laid down that
non-examination of Investigating Officer per se vitiates a
criminal trial.
33. It is also important to note that the Court has to take
note of whether the evidence is crucial, if prosecution presents
strong evidence from the witnesses, who are examined. In the
case on hand, it has to be noted that it is a case of forgery,
manipulation and using forged documents as genuine document
and with regard to the same, the witnesses P.Ws.2 to 9 speak
about the manipulation and manipulation is proved by examining
P.W.12-Scientific Officer, who conducted scientific examination
of admitted signature and also specimen signature and
tampering of the marks list and preparing duplicate marks list
keeping the same in the records as genuine document.
34. It has to noted that non-examination of Investigating
Officer does not automatically mean that the accused was
prejudiced. It is also important to note that when the case
34
involves cheating and forgery, non-examination of Investigating
Officer is not fatal to the prosecution case. That means, it does
not automatically lead to an acquittal as long as no prejudice is
caused to the accused and the evidence of the prosecution
witnesses presented is substantive piece of evidence and
essentially the Court can still analyze the specific circumstances
of the case and determine lack of testimony of Investigating
Officer impacts the case of the prosecution. But, in the case on
hand, that does not goes to the very root of the prosecution
case, since strong circumstantial evidence is available before the
Court i.e., documentary evidence and the evidence of the
prosecution witnesses, particularly the evidence of P.Ws.2 to 9,
who depose that they have valued the papers and manipulated
document does not contain their signature and whatever marks
they have given as '0' has been converted as different marks.
When independent evidence is available before the Court, it
cannot be held that the same goes to the very root of the case,
in view of non-examination of Investigating Officer.
35
35. In the case of BIRENDRA RAI AND OTHERS VS.
STATE OF BIHAR reported in (2005) 9 SCC 719, the Apex
Court observed that the Investigating Officer was not examined
in this case and that has resulted in prejudice to the accused.
But, held that having gone through the evidence of witnesses
and other material on record, we do not find that any prejudice
has been caused to the defence by non-examination of the
Investigating Officer. The mere fact that according to the seizure
list, a stick with bloodstains and pellet marks was seized from
the place of occurrence, would not advance this argument any
further.
36. The Apex Court also in the judgment in BALDEV
SINGH VS. STATE OF HARYANA reported in (2015) 17 SCC
554 held that mere non-examination of Investigating Officer
does not in every case cause prejudice to the accused or affects
the credibility of the prosecution. It also added that whether or
not any prejudice has been caused to the accused is a question
of fact to be determined in each case.
36
37. Having considered the principles laid down in the
judgments, in the case on hand, the Investigating Officer has
been examined, but he was not subjected to cross-examination.
Hence, it cannot be held that his evidence cannot be considered
as evidence for conviction and sentence and the Court has to
take note of other material on record and substantive evidence is
placed by the prosecution by examining the witnesses P.Ws.2 to
9, who have valued the papers and the signatures on the papers
which are valued is not that of their signatures and the
signatures of accused Nos.1, 2 and 8 were also taken and
specimen signatures were also examined by the prosecution.
Hence, both the Courts comes to the conclusion that accused
Nos.1, 2 and 8 being the valuators and custodian have involved
in helping the failed students and they have conspired with each
other, in order to help the students, who failed in the
examination and made them to get through the examination.
These are the material which clearly disclose that other
independent evidence are crucial evidence and strong evidence
available before the Court and particularly, case of the
prosecution is forgery and material alterations and documentary
37
evidence is placed before the Court. Hence, non-examination of
Investigating Officer is not fatal to the case of the prosecution
and I do not find any force in the contention of the learned
counsel that the contention that same is not a judgment at all
cannot be accepted and the contention that non-examination of
Investigating Officer goes to the very root of the case and fatal
to the case of the prosecution cannot be accepted and each and
every case has to be looked into and analyzed by the Court.
Here is a case that more than oral evidence is concerned,
documentary evidence depicts involvement of the petitioners in
committing forgery, manipulation and conspiracy clearly disclose
that there was meeting of minds in tampering the papers and
cheating the University, in order to help the other accused
persons. Hence, I do not find any ground to interfere with the
findings of the Trial Court and the First Appellate Court and the
same does not suffer from its legality and corrects. Accordingly,
I answer point No.(i) as 'negative'.
Point No.(ii)
38. In view of the discussion made above, I pass the
following:
38
ORDER
The criminal revision petitions are dismissed.
Sd/-
(H.P. SANDESH) JUDGE ST