Karnataka High Court
Sri H N Ramachandra vs State Of Karnataka on 8 March, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL REVISION PETITION NO.32/2010
BETWEEN:
SRI H N RAMACHANDRA
S/O H S NANJUNDASWAMY
AGED ABOUT 48 YEARS
R/AT NO.167/B, 6TH CROSS
MARUTHI EXTENSION, SRIRAMPURA
BANGALORE.
... PETITIONER
(By Sri: T SUBRAMANYA, ADV.)
AND
STATE OF KARNATAKA
BY POLICE INSPECTOR
RAJAJINAGAR P.S.
BANGALORE
REP.BY GOVERNMENT
ADVOCATE, HIGH COURT COMPLEX,
BANGALORE.
... RESPONDENT
(By Sri: S. RACHAIAH, HCGP)
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THIS CRL.RP FILED U/S.397 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
IMPUGNED ORDER DATED 26.11.09 PASSED IN
CRL.A.NO.281/2004 ON THE FILE OF THE ADDL. S.J., AND
P.O., FTC-IV, BANGALORE CITY AND ACQUIT THE PETR.
FROM THE CHARGES LEVELLED AGAINST THE PETR.
THIS CRL. RP COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed under Sections 397, Cr.P.C. challenging the judgment of conviction passed by the IV Additional CMM in C.C.542/99 and affirmation of the same by the learned Sessions Judge and presiding officer of fast Track Court-IV in Crl.A. 281/04.
2. Petitioner herein was the first accused in the said case. There were three more accused apart from him. The 2nd accused-Purushottam died during the pendency of the case soon after filing the charge sheet. The 3rd 3 accused-Anantharamu is acquitted in the said case. The case against 4th accused-Anthony Rao is split up.
3. Charge sheet is filed against all the accused for the offences punishable under Sections 406, 408, 465, 511, 120B, I.P.C. by the IV Additional CMM, Bangalore, on 21.3.2002. All the four accused were working as postmen. According to the prosecution case, one Sampath Kumar had sent Rs.1,75,000/-in favour of Govindaraju through one Mohamed Anwar of Mangalore. It is the further case that the said Mohamed Anwar had sent the said demand draft by registered post addressed to Govindaraju and that the said cover containing the demand draft had been entrusted to the 2nd accused exclusively for its delivery when he was working as postmen at Rajajinagar post office. The case of the prosecution is that the 2nd accused had conspired with other accused and handed over the said registered cover to the 1st accused and later on, the 1st accused 4 forged the signature of Govindaraju and got the D.D. It is alleged that all the four accused had conspired amongst themselves to knock off the said money. It is in this regard, the offences as noted above is read with Sections 34, I.P.C. All the accused who had pleaded not guilty, claimed to be tried.
4. Soon after filing of charge sheet, the 2nd accused- Purushottam died. In order to bring home the guilt of the accused, prosecution has examined in all eight witnesses and has got marked 33 exhibits. PW-5 and PW-7 had conducted major portion of the investigation and PW-6 completed the remaining investigation and filed charge sheet. Ultimately the learned judge of the trial court has convicted the 1st accused and sentenced him to undergo RI for one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 511, I.P.C., in default, to undergo further imprisonment for three months. He is sentenced to undergo SI for a 5 period of 6 months for the offence punishable under Section 465, IPC.
5. This judgment of conviction dated 27.3. 2004 was called in question by filing an appeal under Section 378, Cr.P.C. before the sessions court which was withdrawn and transferred to Fast Track court-IV. The said appeal numbered as Crl.A.281/04 is dismissed by confirming the judgment of conviction. It is these concurrent findings passed by the courts below which are called in question in this revision petition filed under Section 397, Cr.P.C. on various grounds as set out in the memorandum of revision petition.
6. Learned counsel for the petitioners has vehemently argued that the entire case of the prosecution is based on the evidence of PW-3 and the case is not proved beyond all reasonable doubt. It is argued that the version of PW-3 is only hearsay and 6 neither the trial court not the first appellate court could have placed reliance on the same. It is argued that the evidence of the handwriting expert, PW-8 does not inspire confidence in the mind the court and that the IO did not collect specimen handwritings or signature of the 2nd accused-Purushottam, and even though collected the same was not sent to the expert.
7. Per contra, learned HCGP, Mr.Rachaiah has vehemently supported the judgment of conviction essentially on the ground that corroboration is only a rule of prudence but not a rule of evidence. It is argued that the evidence of PW-3 is decisive and both the courts below have rightly relied on the same. Hence he has requested the court dismiss the revision petition.
8. After going through the records and hearing the learned counsel for the parties, the following points arise for consideration of this court:
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(1) Whether the trial court in the first appellate court and testify in placing heavy reliance on the evidence of PW-3 without any corroboration?
(2) Whether any differences called for, and if so, to what extent?
REASONS
9. Point no. (1): Corroboration is only a rule of prudence and not of evidence. It is not the quantity of evidence that is material in a criminal case, but quality of evidence. Therefore the learned HCGP has vehemently argued that the evidence of PW-3 is decisive and both the courts below have rightly relied on the same.
10. PW-3-Krishnappa was serving as P.R.Inspector in the post office at Rajajinagar in the year 1978-79. He has deposed that the 1st accused-Ramachandra and deceased 2nd accused-Purushottam were working as postmen and accused no.2 was entrusted with articles and accountable articles. Accountable articles include 8 MO., registered post, postal articles, insured, VPP letters, etc. According to him, the registered letter addressed to Govindaraju had been entrusted to deceased-2nd accused on the relevant today in the post office for its delivery. Acknowledgement was handed over to the post office for having received the registered letter to Govindaraju. After some days, the son and grandson of Govindaraju made enquiries about the registered cover containing the demand draft and it was informed to them that it was handed over to him. They denied Govindaraju having received such registered letter and the signature purported to be found on the acknowledgement showing his signature was not that of Govindaraju. Subsequently a complaint was lodged with Rajajinagar police station.
11. PW-3 has further stated that he had been entrusted to look into the matter and submit a report. On enquiry he came to know from the 2nd accused that 9 he (2nd accused) had severe stomach pain and therefore, he had handed over the registered letter addressed to Govindaraju, to the 1st accused to deliver the same. The 1st accused forged the signature of Govindaraju and took out the demand draft and furnished the acknowledgement purporting to be signed by Govindaraju.
12. Examination includes cross-examination. PW-3 has admitted that the 1st accused was in the first batch duty which started from 8.30 a.m. to 11.30 a.m. He has further deposed that the second batch duty was between 10.30 a.m. to 11.00 a.m. and the 2nd accused- Purushottam was in the second batch. He has admitted the suggestion as true that when the 2nd accused received the article for its delivery, the 1st accused- Ramachandra had already left the post office. It is his case that the 2nd accused gave his delivery work to the 1st accused in the middle of his route. Except this self- 10 serving statement, he has not substantiated his assertion in any manner. On the other hand, he has admitted the suggestion as true that it is the procedure for the postman to deliver the articles entrusted to him, lest, he has to return the same to the concerned post office. In that event the officer receiving the article will enquire as to why he was returning the article instead of delivering the same. PW-3 has further admitted the suggestion as true that necessary enquiry will also be made with the person entrusted with delivery of articles, if he were to hand over the same to some other postman. In fact PW-3 has specifically admitted that he did not enquire with the registration delivery clerk in this case.
13. PW-3 is stated to have recorded and handed over the statements of accused nos.1 and 2 to his senior postmasters. Those statements allegedly given by accused nos. 1 and 2 are not forthcoming. Hence 11 adverse inference under Sections 114 (g) of the Evidence Act will have to be drawn on the ground that either he did not record their statements or did not hand over to the post master since they were not favourable to the prosecution.
14. The alleged confession statement of accused nos. 1 and 2 cannot be treated as evidence unless something is recovered consequent upon the disclosure made while in police custody, under Section 27 of the Evidence Act. Nothing is forthcoming as to whether Govindaraju was alive when investigation was conducted. The IO has not stated whether Govindaraju was alive when he i.e. I.O. went to his house. The IO has deposed that he collected Xerox copy of Govindaraju's Ration Card. It is an understandable as to how Xerox copy could be treated as evidence.
15. The evidence of a handwriting expert is on the lower rank in the hierarchy of expert evidence. It is the 12 dissimilarities which are decisive and not the similarities, while comparing admitted handwriting with the disputed one. In the case of BHARGAV K.SALUNKHE .v. STATE OF MAHARASHTRA (1996 Crl.L.J. 1228, 1232 [Bom]), the Bombay High Court has held that 'The expert evidence must always be received with great caution and perhaps none so with more caution than the opinion of handwriting expert.' In a catena of decisions, the Hon'ble Supreme Court has pointed out that it would be risky to found a conviction solely on the evidence of handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. The same view is also taken in the judgments of English and American Courts. In GURNEY .v. LONGLANDS (1822 5 B & Ald 330 and Matter of Alford Foster's Will, 34 Mich.21, the Supreme Court of Michigan pointed out in the test mentioned case:
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'Every one knows how very unsafe it is to rely upon one's opinion concerning the niceties of penmanship--Opinions are necessarily received, and may be valuable, but at best, this kind of evidence is a necessary evil.' As already stated, the evidence of PW-3 does not inspire confidence in the mind of this court. It is unfortunate that "below have attached much significance to his evidence which is the nature of hearsay.
15. A division bench of this court in the case of RAVJAPPA .v. NILAKANTA RAO & OTHERS (AIR 1962 Mysore 53) has focused on the dissimilarities to be noticed by the expert when comparing admitted handwriting with the disputed handwriting. The relevant portion is as follows:
'In examining a disputed document, the true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dis-similarities noticed. It is these differences which expose the true character of the document in 14 question. Admittedly several of the letters found in the writing and in the signatures in Ex.788 are strikingly dis-similar to the corresponding letters found in the admitted signatures. For instance, the letters found in Ex.788 do not bear satisfactory resemblance to those very letters found in Ex.613 and Exs.474 to 477 all of which admittedly contain the genuine signatures of Ravjeppa. I am afraid, the court below had not given sufficient importance to these dis-similarities. The science of calligraphy is not a perfect science and the instances are not rare when even the best handwriting expert had not been able to find out the forgery.' Thus both the courts below have adopted wrong approach to the real state of affairs without looking into the fact that the evidence of PW-3 clearly needed corroboration. In this view of the matter point number one is answered in the negative.
16. Point no. (2): in view of the finding on point no.
(1), the petition is to be allowed and the judgment of conviction and sentence passed by the trial court and affirmed by the first appellate court is required to be set aside. In the result, the following order is passed: 15
ORDER The revision petition is allowed. The judgment of conviction and sentence passed the trial court in C.C.542/99 and affirmed in Crl.A.281/04 are set aside.
Consequently all the accused are acquitted of all the offences alleged against them. Bail bonds executed by the accused and surety, if any, stand cancelled.
Sd/-
JUDGE vgh*