Karnataka High Court
G Mahesh S/O Mallikarjuna vs The State Of Karnataka on 21 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-D:4309
CRL.RP No. 100279 of 2016
C/W CRL.RP No. 100275 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100279 OF 2016
C/W
CRIMINAL REVISION PETITION NO. 100275 OF 2016
IN CRIMINAL REVISION PETITION NO. 100279 OF 2016
BETWEEN:
1. G. MAHESH S/O MALLIKARJUNA,
AGE: 33 YEARS, OCC: STUDENT,
R/O: KARUR VILLAGE.
2. M. MALLIKARJUNA S/O M.HONNURAPPA,
AGE: 33 YEARS, OCC: STUDENT,
R/O: DARUR VILLAGE.
3. B.RAJABABU
S/O B. RAMACHANDRAPPA,
AGE: 33 YEARS, OCC: STUDENT,
Digitally
R/O: DARUR VILLAGE.
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL Date: 4. U.RAMESH S/O HULIYAPPA,
2024.02.23
10:17:18
+0530
AGE: 33 YEARS, OCC: STUDENT,
R/O: BUDUGUPPA VILLAGE.
5. M.THIPPESWAMY
S/O M.GADILINGAPPA,
AGE: 33 YEARS, OCC: STUDENT,
R/O: DARUR VILLAGE.
6. B.K.HANUMESH RAO S/O KRISHNA RAO,
AGE: 33 YEARS, OCC: AGRICULTURIST,
R/O: BUDUGUPPA VILLAGE.
...PETITIONERS
-2-
NC: 2024:KHC-D:4309
CRL.RP No. 100279 of 2016
C/W CRL.RP No. 100275 of 2016
(BY SRI A.M.GUNDAWADE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
(SIRUGUPPA POLICE STATION),
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP )
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO CALL FOR
THE RECORDS IN CRIMINAL APPEAL NO. 51 OF 2011 ON THE FILE
OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI AND
THE RECORDS IN CRIMINAL CASE NO. 185 OF 2002 ON THE FILE OF
JUDICIAL MAGISTRATE FIRST CLASS SIRUGUPPA, ALLOW THIS
REVISION PETITION AND SET ASIDE THE JUDGMENT PASSED BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLRI IN
CRIMINAL APPEAL NO. 49 OF 2011 DATED 22.8.2016 AND THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY
THE JUDICIAL MAGISTRATE FIRST CLASS, SIRUGUPPA IN CRIMINAL
CASE NO. 185 OF 2002 DATED 14.10.2011 AND SET THE
PETITIONER AT LIBERTY.
IN CRIMINAL REVISION PETITION NO. 100275 OF 2016
BETWEEN:
1. E. DEVAREDDY S/O JAYARAM,
AGE: 33 YEARS, OCC: STUDENT,
R/O: KARUR VILLAGE,
2. H.KHASIM SAB S/O PEERA SAB,
AGE: 33 YEARS, OCC: STUDENT,
R/O: DARUR VILLAGE,
3 B.SRISAILA S/O LANKEPPA,
AGE: 33 YEARS, OCC: STUDENT,
R/O: DARUR VILLAGE,
-3-
NC: 2024:KHC-D:4309
CRL.RP No. 100279 of 2016
C/W CRL.RP No. 100275 of 2016
4. SHEKSHAVALI S/O KHASIM SAB,
AGE: 34 YEARS,
R/O: BUDUGUPPA VILLAGE,
5. S.RAGHAVENDRA REDDY
S/O THIMMAREDDY,
AGE: 36 YEARS,
R/O: DARUR VILLAGE
6. B.MADDLLETAPPA REDDY
S/O LAKSHMI REDDY,
AGE: 42 YEARS,
R/O: DARUR VILLAGE,
ALL ARE SIRUGUPPA TQ.,
DIST: BALALRI.
...PETITIONERS
(BY SRI J. BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
(SIRUGUPPA POLICE STATION)
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
...RESPONDENT
(BY SMT. GIRIJA S.HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 R/W
401 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN CRL.
APPEAL NO.51/2011 ON THE FILE OF III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI AND THE RECORDS IN C.C.
NO.185/2002 ON THE FILE OF J.M.F.C., SIRUGUPPA, ALLOW THIS
REVISION PETITION AND SET ASIDE THE JUDGMENT PASSED BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI IN
CRL. APPEAL NO.51/2011 DATED 22.8.2016 AND THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE
J.M.F.C., SIRUGUPPA IN C.C. NO.185/2002 DATED 14.10.2011 AND
SET THE PETITIONERS AT LIBERTY.
-4-
NC: 2024:KHC-D:4309
CRL.RP No. 100279 of 2016
C/W CRL.RP No. 100275 of 2016
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. These two criminal revision petitions arise out of the judgment and order of conviction and sentence dated 14.10.2011 passed by the Court of Judicial Magistrate First Class, Siruguppa, in C.C.No.185/2002, and therefore, they are heard together and disposed of by this common order.
2. Petitioners in these two criminal revision petitions are accused nos.1 to 12 before the Trial Court. Accused no.1 is reported to have dead, and therefore, the revision petitions as against him stands abated.
3. The accused before the Trial Court in C.C.No.185/2002 were tried for the offences punishable under Sections 419, 420, 468, 471, 474 read with 149 IPC. The Trial Court had convicted the accused for the aforesaid offences and for the offence punishable under Section 419 read with 149 IPC, the accused were sentenced to pay fine of Rs.1,000/- each and in default, to undergo simple imprisonment for six months. For the offence under Section 420 read with 149 IPC, the accused were sentenced to undergo simple imprisonment for a period of one -5- NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 year and to pay fine of Rs.1,000/- each. For the offence under Section 468 read with 149 IPC, the accused were sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. For the offence under Section 471 read with 149 IPC, the accused were sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. For the offence under Section 474 read with 149 IPC, the accused were sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. For the offence under Section 149 IPC, the accused were sentenced to pay fine of Rs.1,000/- each and in default to undergo simple imprisonment for a period of three months. The sentence awarded were ordered to run concurrently.
4. The said judgment and order of conviction and sentence was assailed by the accused before the Court of II Addl. District Judge, Ballari, in Crl.A.Nos.49 & 51 of 2011. The Appellate Court vide its judgment and order dated 22.08.2016, partly allowed the appeals and while setting aside the judgment and order of conviction and sentence passed by the Trial Court against the accused for the offence under Section 474 read with -6- NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 149 IPC, confirmed the judgment and order of conviction and sentence passed by the Trial Court against the accused in respect of the remaining offences. Being aggrieved by the same, the accused are before this Court.
5. Learned Counsel for the petitioners submit that the Trial Court as well as the Appellate Court have erred in convicting the petitioners for the alleged offences. They submit that there is lot of discrepancy in the evidence placed on record by the prosecution and the same has not been properly appreciated by the Trial Court as well as the Appellate Court. They also submit that the oral and documentary evidence do not corroborate with each other. The prosecution has failed to prove the charges against the accused beyond reasonable doubt. Accordingly, they pray to allow the revision petitions.
6. Per contra, learned HCGP has opposed the prayer made in the revision petitions. She submits that the courts below have recorded a concurrent finding of guilt against the petitioners. The prosecution has proved its charges beyond reasonable doubt against the accused by placing on record sufficient oral and documentary evidence. The persons who had -7- NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 impersonated the students were caught red-handed and the identity of the students was established by producing their admission tickets. Accordingly, she prays to dismiss the petitions.
7. On the complaint of the Principal and Chief Examiner at Examination Centre No.005 in Government Pre-University College, Siruguppa, the Station House Officer, Siruguppa Police Station had registered FIR in Crime No.118/2000 against the accused and after completing the investigation in the said case, had filed charge sheet for the offences punishable under Sections 419, 420, 468, 471 & 474 read with 149 IPC. The allegation in the charge sheet is that accused nos.2, 3, 5, 7 & 9 had impersonated accused nos.1, 4, 6, 8 & 10 in the SSLC examination that was held on 12.07.2000 and accused nos.2, 3, 5, 7 & 9 had appeared on behalf of accused nos.1, 4, 6, 8 & 10 for the Social Studies examination that was held on the said date. It is also alleged that the aforesaid accused along with accused nos.11 & 12 had forged the signature and seal of the Head Master of the School and used them for the purpose of preparing Hall Tickets and thereby cheated the Government. Accused nos.11 & 12 allegedly had assisted the other accused -8- NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 for the purpose of preparing the forged signature and seal of the Head Master of the School and also for affixing the photographs of the impersonators in the hall tickets.
8. The accused had pleaded not guilty before the Trial Court, and therefore, the prosecution in support of its case had examined 18 witnesses as PWs-1 to 18 and had got marked 161 documents as Exs.P-1 to P-161. On behalf of the accused, no defence evidence was led.
9. PW-1 was working as Head Master of the School and PWs-3 & 4 were the Teachers in the said school. They have supported the case of the prosecution and also identified the students of their school who are accused in the present case. The accused who had impersonated the students were caught red-handed in the examination hall and they were produced before the Investigation Officer and subsequently remanded to judicial custody. Their identity is not in dispute.
10. PW-5 is the DDPI who on receipt of credible information, had visited the school in which the alleged offence was committed by the accused. Having found that accused nos.2, 3, 5, 7 & 9 had impersonated accused nos.1, 4, 6, 8 & 10 and -9- NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 were writing the examination, he had seized their hall tickets and answer sheets and handed over the same to PW-2. The accused who had appeared for the examination on behalf of the students were subsequently produced before the police along with the seized answer sheets and hall tickets, and thereafter, a complaint was also lodged, which had resulted in registering criminal case against the accused.
11. PW-6 was working as Assistant Teacher in GMHP School and on 12.07.2000, he was on examination duty when PW-5 entered the examination hall in which accused nos.2, 3, 5, 7 & 9 were appearing for the Social Studies examination on behalf of accused nos.1, 4, 6, 8 & 10. He also states that police came to the said hall subsequently and seized the hall tickets and answer sheets which were subjected to panchanama - Ex.P-26. PW-7 is the Teacher who was on examination duty in Room No.5 and the evidence of this witness corroborates with the evidence of PW-6.
12. PWs-8 & 9 are students who had appeared for the examination on the said date, but these witnesses have not supported the case of the prosecution.
- 10 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016
13. PW-10 is the Teacher who has spoken about drawing up mahazar as per Exs.P-24 & 25 in Room No.3 in his presence. He has also stated about the drawing up of panchanama as per Ex.P-27 in Room No.5 and panchanama - Ex.P-26 in Room No.6. He along with CW-14 have signed the aforesaid panchanamas which are at Exs.P-25 to P-28. PW-11 is the Peon who is a panch witness to the mahazar drawn in Room Nos.3, 5 & 6 and he has identified his signature in all the aforesaid mahazars at Exs.P-25 to P-28. PW-12 who is a panch witness to the seizure mahazar has turned hostile to the case of the prosecution. PW-13 who is a panch witness to Ex.P-22, has supported the case of the prosecution and PW-14 speaks about the police visiting the school and preparing the panchanama.
14. PW-15 is the Scientific Officer of Forensic Science Laboratory who has compared the admitted signature of the students in the hall tickets and the signatures of the impersonators in the answer sheets. He has also compared the admitted handwriting of the students with the handwriting found in the answer sheets and has accordingly given a report which is marked as Ex.P-125.
- 11 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016
15. PW-17 is the PSI of Siruguppa Police Station who had arrested some of the accused and had seized the answer sheets and hall tickets in the school under a panchanama. This witness also had seized the note books of the students containing standard handwritings for the purpose of forwarding the same to FSL. PW-18 - Harish, PSI of Siruguppa Police Station has spoken about the registering of criminal case against the accused and also about the arrest of some of the accused and producing them before the Court.
16. Most of the witnesses who were examined before the Trial Court have supported the case of the prosecution and from the reading of their deposition, it is evident that accused nos.2, 3, 5, 7 & 9 had appeared for the examination on behalf of accused nos.1, 4, 6, 8 & 10 by impersonating them, and they were caught red-handed and their hall tickets and answer sheets were seized and subjected to panchanama. The allegation against the accused was also proved by the prosecution by comparing their admitted signatures and handwriting with the disputed signatures and handwriting, and to prove the same, they have examined the Scientific Officer of FSL, who has issued a report as per Ex.P-125.
- 12 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016
17. The Appellate Court having re-appreciated the oral and documentary evidence placed by the prosecution, while confirming the judgment and order of conviction and sentence passed by the Trial Court in so far as it relates to the offences punishable under Sections 419, 420, 468, 471 read with 149 IPC, has set aside the order of conviction and sentence passed by the Trial Court in so far as it relates to the conviction of the accused for the offence under Section 474 read with 149 IPC.
18. The Trial Court having convicted and sentenced the accused for the offences punishable under Sections 419, 420, 468, 471 & 474 read with 149 IPC, has also passed a separate order of sentence against the accused exclusively for the offence under Section 149 IPC and the accused were sentenced to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for a period of three months. The Appellate Court has not disturbed the said order of sentence passed by the Trial Court. Section 149 IPC does not create a separate offence, but only creates vicarious liability on all the members of the unlawful assembly for the acts done in common object. Since the accused have been convicted and sentenced for the offences punishable under Sections 419, 420, 468 and 471 IPC
- 13 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 which were allegedly done by them with a common object, they could not have been sentenced separately for the offence under Section 149 IPC. Therefore, the order of sentence passed by the Trial Court to the said extent which has been confirmed by the Appellate Court cannot be sustained.
19. In so far as the remaining part of the impugned judgment and order passed by the courts below wherein the accused have been convicted for the offences under Sections 419, 420, 468, 471 read with 149 IPC is concerned, I am of the view that there is no scope for interference as the courts below have properly appreciated the oral and documentary evidence available on record and have rightly convicted the accused for the aforesaid offences. Therefore, I do not find any good ground to interfere with the judgment and order of conviction passed by the courts below in so far as it relates to convicting the accused for the offences punishable under Sections 419, 420, 468, 471 read with 149 IPC.
20. In so far as the order of sentence passed against petitioners/accused nos.2 to 12 is concerned, the Appellate Court has confirmed the order of sentence passed by the Trial
- 14 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 Court. The Trial Court has sentenced the petitioners/accused nos.2 to 12 to undergo simple imprisonment for a period of one year each for the offences punishable under Sections 420, 468 & 471 read with 149 IPC. The said order of sentence passed by the Trial Court for the offences punishable under Sections 420, 468 & 471 read with 149 IPC has been confirmed by the Appellate Court. The judgment and order of conviction and sentence for the offence under Section 474 read with 149 IPC has been set aside by the Appellate Court, while the judgment and order of conviction and sentence passed by the Trial Court and confirmed by the Appellate Court for the offence under Section 149 IPC is held to be bad by this Court.
21. In so far as the sentence passed by the Trial Court which has been upheld by the Appellate Court for the offences punishable under Sections 420, 468, 471 read with 149 IPC is concerned, I am of the view that since the incident in question had taken place in the year 2000 and more than 23 years have lapsed thereafter, it would not be necessary to send the petitioners/accused nos.2 to 12 behind the bars at this stage. All the petitioners except accused no.11 were youngsters aged about 18 years as on the date of incident. It is brought to the
- 15 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 notice of this Court that the petitioners are all now married and they have a family and their children are studying. Therefore, I am of the view that if the order of sentence passed by the Trial Court directing the accused to undergo simple imprisonment for a period of one year is reduced and if the petitioners are sentenced to undergo simple imprisonment till the raising of the court and in addition to the same, if appropriate amount of fine is imposed on them, that would serve the ends of justice. Accordingly, the following order:
22. The revision petitions are allowed in part. The judgment and order of conviction passed by the Trial Court in C.C.No.185/2002 dated 14.10.2011 confirmed by the Appellate Court in Crl.A.Nos.49 & 51 of 2011 vide judgment and order dated 22.08.2016, in so far as it relates to the offences punishable under Sections 419, 420, 468 & 471 read with 149 IPC is upheld. The order of sentence passed by the Trial Court and confirmed by the Appellate Court in so far as it relates to the offence under Section 419 read with 149 IPC remains unaltered. The order of sentence passed by the Trial Court in so far as it relates to the offences under Sections 420, 468 & 471 read with 149 IPC, which is confirmed by the Appellate Court, is
- 16 -
NC: 2024:KHC-D:4309 CRL.RP No. 100279 of 2016 C/W CRL.RP No. 100275 of 2016 modified. For the offence under Section 420 read with 149 IPC, the petitioners/accused nos.2 to 12 are sentenced to undergo imprisonment till the raising of the court and pay fine amount of Rs.3,000/- each and in default of payment of fine amount, to undergo simple imprisonment for a period of six months. For the offence under Section 468 read with 149 IPC, the petitioners/accused nos.2 to 12 are sentenced to undergo imprisonment till the raising of the court and pay fine amount of Rs.3,000/- each and in default of payment of fine amount, to undergo simple imprisonment for a period of six months. For the offence under Section 471 read with 149 IPC, the petitioners/accused nos.2 to 12 are sentenced to undergo imprisonment till the raising of the court and pay fine amount of Rs.3,000/- each and in default of payment of fine amount, to undergo simple imprisonment for a period of six months. The judgment and order of sentence passed separately by the courts below for the offence punishable under Section 149 IPC is set aside.
Sd/-
JUDGE KK