Karnataka High Court
Pradeep @ G Pradeep vs State By Chitradurga Town Police on 4 March, 2022
Bench: K.S.Mudagal
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
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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)
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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
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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
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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
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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.
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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
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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
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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
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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
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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
AIR 1995 SC 2265
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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
(2015)6 SCC 674
(2011)4 SCC 324
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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.
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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.
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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
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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
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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
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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
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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
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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
