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Thursday, January 10, 2013

entered into a criminal conspiracy to cheat the Regional Passport Office, Trichy in order to obtain passports on the basis of creating ante- dated passport applications with duplicate file numbers, so as to make them appear as old cases, accompanied by forged enclosures such as police verification certificates etc. = Delhi Special Police Establishment Act, 1946- “5. Extension of powers and jurisdiction of special police establishment to other areas.—(1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject of any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police station. (3) where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.” : it is very well established by the prosecution that the filled up passport applications were submitted by A-5 (appellant herein) on behalf of her employer A-3. Further, in majority of passport applications (Exh. P-2 to P-43), bogus particulars were filled by A-5 (appellant herein), at Trichy. The prosecution has also established that A-5 has given false particulars regarding the place of residence of applicants’ in the passport applications in view of her admission in 313 statement that she was working in Goodluck Travels and assisting Rajendran (A-3) in preparing applications and filing them before the Passport Office as well as handling the affairs connected therewith which clearly prove that A-5 has filled up the said passport applications (Exh.P-2 to P-43). We are also satisfied that the prosecution has clearly established that false documents were made for the purpose of cheating and those documents were used as genuine for obtaining passports. 25) In the light of the overwhelming evidence placed by the prosecution, analyzed by the trial Court and affirmed by the High Court, interference by this Court with concurrent findings of fact by the courts below is not warranted except where there is some serious infirmity in the appreciation of evidence and the findings are perverse. Further, this Court will not ordinarily interfere with appreciation of evidence by the High Court and re-appreciation is permissible only if an error of law or procedure and conclusion arrived are perverse. 26) Taking note of the fact that the appellant is having a small child, while confirming the conviction we reduce the sentence to six months from two years. 27) With the above modification i.e., reduction of sentence, the appeal stands disposed of.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      1 CRIMINAL APPEAL No.  31 OF 2013

               (Arising out of S.L.P. (Crl.) No. 9190 of 2011)


Hema                                            .... Appellant(s)

            Versus

State, thr. Inspector of Police,
Madras                                                         ....
Respondent(s)


                                      2



                               J U D G M E N T


P.Sathasivam,J.

1)    Leave granted.
2)    This appeal is directed against the final judgment  and  common  order
dated 29.04.2011 passed by the Madurai Bench of the  Madras  High  Court  in
Criminal Appeal (MD) No. 37 of 2004 whereby the  High  Court  dismissed  the
appeal filed by the appellant herein  (A-5  therein)  while  confirming  the
judgment dated 28.07.2004, passed by the Court of  Principal  Special  Judge
for CBI Cases, Madurai.
3)   Brief facts:
a)    According to the prosecution,
during  the  year  1992,  the  appellant
herein (A-5), along with other accused persons  (A-1  to  A-4  therein)
had entered into a  criminal  conspiracy  to  cheat  the  Regional  Passport
Office, Trichy in order to obtain passports on the basis of  creating  ante-
dated passport applications with duplicate file numbers, so as to make  them
appear as old  cases,  accompanied  by  forged  enclosures  such  as  police
verification certificates etc.  
In pursuance of  the  said  conspiracy,  A-2
being the Lower Division Clerk  in  the  Regional  Passport  Office,  Trichy
fraudulently received and processed 42 forged  passport  applications  filed
by one Goodluck Travels, Trichy run by A-3 with the assistance of A-4 and A-
5 (the appellant herein) and made false endorsement  of  reference  numbers,
fee certifications etc. and A-1, being the Superintendent  of  the  Regional
Passport Office, Trichy, by abusing his official  position,  granted  orders
for the issue of passports in respect of the said 42 applications.
b)    In pursuance of the same, on 09.02.1993, the District Crime Branch  at
Ramanathapuram, Tamil Nadu received a letter from Deputy  Superintendent  of
Police (DSP), DCRB Ramanad, containing a complaint  given  by  the  Passport
Officer, Trichy.  
On the basis of the same, a case was  registered  by  the
District Crime Branch,  Ramanad  as  Criminal  Case  No.  1  of  1993  under Sections 419, 420, 465 and 467 of the Indian  Penal  Code,  1860  (in  short‘the IPC’).
c)    When the Inspector of Police, DCB, took up the investigation, the  CBI
intervened and  filed  a  First  Information  Report  being  RC-21(A)/93  on
11.05.1973 under Section 120-B read with Sections 420, 467, 468 and  471  of
the IPC and Section 13(2) read with Section 13(1)(d) of  the  Prevention  of
Corruption Act, 1988 (in short ‘the  PC  Act’).   
After  investigation,  the
case was committed to the Special Court for CBI Cases, Madurai and  numbered
as CC No. 38 of 1996.  On 01.08.1996,  
the  Special  Court,  framed  charges
under Section 120-B of IPC against A-1 to A-5 and 

under  Sections  420,  465 and 471 of  IPC against the appellant  herein  (A-5)  and  

specific  charges under Section 13(1)(d) read with Section 13(2) of the  PC  Act  against  A-1
and 
under Sections 420, 467, 468 and 471 of IPC and under  Section  13(1)(d)
read with Section 13(2) of the PC Act against A-2 and 

under  Sections  420,465 and 471 of IPC against A-3.
d)    By order dated 28.07.2004, the Principal Special Judge  convicted  and
sentenced A-1 to A-3 and A-5.
In the present appeal, we are concerned  only
with A-5 who was convicted and sentenced to undergo RI  for  2  years  along
with a fine of Rs.5,000/-, in default, to further undergo RI  for  6  months
for each of the offences under Sections 120-B, 420 read with  Sections  511,
465 and 471 of IPC. (Total fine of Rs. 15,000/-).
e)    Aggrieved by the said order of conviction and sentence, the  appellant
herein filed Criminal Appeal No. 37 of 2004 before the Madurai Bench of  the
Madras High Court.  By impugned  order  dated  29.04.2011,  the  High  Court
dismissed the same along with other set  of  appeals  filed  in  respect  of
other accused and confirmed their conviction and  sentence  awarded  by  the
trial Court.  Being aggrieved by the judgment of the High Court,  A-5  alone
has preferred this appeal by way of special leave before this Court.
4)    Heard Mr. S. Prabhakaran, learned counsel for the  appellant  and  Mr.
H.P. Rawal, learned Additional Solicitor General for the respondent-CBI.
Contentions:
5)    Mr. S. Prabhakaran, learned counsel for the  appellant,  after  taking
us through the entire materials including the order of the trial  Court  and
the High Court submitted that the initial proceedings  by  the  State  Crime
Branch and the subsequent  proceedings  by  the  CBI  cannot  be  permitted,
hence, the entire investigation is  to  be  thrown  out.   In  other  words,
according to him, parallel proceedings by the State  Crime  Branch  and  the
CBI are not permissible.  In addition to the same,  he  submitted  that  the
original seals and rubber stamps  have  not  been  seized  from  the  police
officials and those were not produced by the I.O. to prove  that  the  seals
and stamps were forged.  He  further  submitted  that  the  prosecution  has
failed to exhibit the FSL report with regard to the impression of  seals  of
M.Os 1 to 3 alleged to  have  been  recovered  by  the  prosecution  at  the
instance of A-3 despite the same were being sent by Shri Madavanan  (PW-30),
Inspector of Police.  According to him,  the  specimen  signatures  of  Shri
Natarajan (PW-16), DSP, and R. Muniyandi (PW-29), Sub-Inspector  of  Police,
have not been sent to the hand writing expert  for  his  opinion.   Further,
the seal and specimen signature of attesting officer, viz., Dr.  Muthu  (PW-
18) were not collected by the CBI  to  prove  that  the  seal  and  specimen
signature were forged.  There is no document or indication found in  Exh.P-3
to P-43 to show that they were sent by M/s Goodluck Travels to the  Passport
Office at Trichy.  Finally, he submitted that inasmuch as  the  certificates
issued by the Village Administrative Officers that the applicants  were  not
the residents of the place mentioned in the application form, their  reports
have no legal sanctity in the absence of certification by the Tahsildar.
6)     Mr.  Rawal,  learned  ASG  appearing  for  the  CBI,  met   all   the
contentions.  He submitted that the claim that parallel proceedings  by  the
District Crime Branch (DCB) and the CBI, though not urged before  the  trial
Court, High Court and even in the grounds of appeal, however,  there  is  no
legal basis for such claim.  Even otherwise, according to him, if  there  is
any defect in the investigation, the accused cannot  be  acquitted  on  this
ground.  By taking us through the evidence relied  on  by  the  prosecution,
findings by the trial Court and the High Court, learned ASG  submitted  that
in view of concurrent  decision  of  two  courts,  in  the  absence  of  any
perversity,  interference  by  this  Court  exercising  jurisdiction   under
Article 136 is not warranted.
Discussion:
7)    With regard to the  main  objection  as  to  parallel  proceedings  as
claimed by Mr. Prabhakaran, learned counsel for  the  appellant,  as  stated
earlier, this objection was not raised either  before  the  trial  Court  or
before the High Court and even in the grounds of appeal before  this  Court,
however, considering the fact that we are dealing with a  matter  pertaining
to criminal prosecution, we heard the counsel on this  aspect.   He  pointed
out that the first FIR dated 09.02.1993 was registered at  the  instance  of
the complaint by Shri V.A. Britto, Passport Officer, Trichy.  The  said  FIR
has been marked as Exh.P-214.  He also pointed out that the second  FIR,  at
the instance of the Special Police Establishment, Madras Branch, was  lodged
on 11.05.1993 against three persons, namely, (1) P.  Durai,  Superintendent,
Passport Office, Trichy (2) P.M. Rajendran,  LDC,  Passport  Office,  Trichy
and (3) M/s Goodluck Travels, Thiruvadanai, Ramanad  District,  Tamil  Nadu.
By taking us through the said reports, particularly,  the  second  FIR,  the
counsel for the appellant has pointed out that the said report  proceeds  on
the basis of credible information from a  reliable  source.   The  same  was
entertained and registered as R.C.No. 21(A)/93 by S. Arulnadu, Inspector  of
Police, SPE:CBI:ACB:Madras.  By pointing out these details, it is  contended
by the counsel for the appellant that the course adopted by the  prosecution
in examining certain persons by the DCB, namely, the State  Police  and  the
remaining persons by the CBI is not permissible.
8)    It is settled law that not only fair trial, but fair investigation  is
also part of constitutional rights guaranteed under Articles 20  and  21  of
the  Constitution  of  India.   Accordingly,  investigation  must  be  fair,
transparent and judicious and it is the immediate  requirement  of  rule  of
law.
As observed by this  Court  in  Babubhai  vs.  State  of  Gujarat  and
Others, 2010 (12) SCC 254, the Investigating Officer cannot be permitted  to
conduct an investigation in a tainted and biased  manner.   It  was  further
observed that where non-interference of the Court  would  ultimately  result
in failure of justice,  the  Court  must  interfere.   Though  reliance  was
placed on the above decision by the appellant, it is not in dispute that  in
that case, the High Court has concluded by giving detailed reasons that  the
investigation has been totally one-sided based  on  malafide.   Further,  in
that case, the charge-sheets filed by the Investigating Agency in  both  the
cases were against the same set of accused.  This was not the  situation  in
the case on hand.  Though the State Crime  Branch  initiated  investigation,
subsequently, the same was taken over by the CBI considering the volume  and
importance of the offence.
9)    In this regard, Mr. Rawal, learned ASG by  drawing  our  attention  to
the relevant provisions of the 
Delhi Special Police Establishment Act,  1946
submitted that the course adopted by the CBI  is,  undoubtedly,  within  the
ambit of the said Act and legally sustainable.  Section 5 of  the  said  Act
speaks about extension of powers and jurisdiction of  special  establishment
to other areas.  Section 5 of the Act is  relevant  for  our  purpose  which
reads as under:-
      “5.  Extension  of  powers  and   jurisdiction   of   special   police
      establishment to other areas.—(1) The Central Government may by  order
      extend to any area (including Railway areas), in a State, not being  a
      Union Territory the powers and jurisdiction of members  of  the  Delhi
      Special Police Establishment for the investigation of any offences  or
      classes of offences specified in a notification under Section 3.
      (2) When by an order under sub-section (1) the powers and jurisdiction
      of members of the said police establishment are extended to  any  such
      area, a member thereof may, subject of any orders  which  the  Central
      Government may make in this  behalf,  discharge  the  functions  of  a
      police officer in that area  and  shall,  while  so  discharging  such
      functions, be deemed to be a member of a police force of that area and
      be vested with the powers, functions and privileges and be subject  to
      the liabilities of a police officer belonging to that police station.


      (3) where any such order under sub-section (1) is made in relation  to
      any area, then, without prejudice to the provisions of sub-section (2)
      any member of the Delhi Special Police Establishment of or  above  the
      rank of Sub-Inspector may subject to  any  orders  which  the  Central
      Government may make in this behalf, exercise the powers of the officer
      in charge of a police station in that area and when so exercising such
      powers, shall be deemed to be an officer in charge of a police station
      discharging the functions of such an officer within the limits of  his
      station.”


Sub-section (3) which was inserted with effect from 18.12.1964 by Act 40  of
1964 makes it clear that on  the  orders  of  the  Central  Government,  any
member of the Delhi Special Police Establishment is  permitted  to  exercise
the powers of the officer in charge of a police station  in  that  area  and
while exercising such powers, he shall be deemed to be an officer in  charge
of a police station concerned discharging  the  functions  of  such  officer
within the limits of his station.  In the light of the mandates as  provided
in sub-section (3), we are  of  the  view  that  learned  ASG  is  right  in
contending  that  there  is  no  infirmity  or  flaw   in   continuing   the
investigation by the officers of the CBI in  spite  of  the  fact  that  the
State  Crime  Branch  registered  a  complaint  and   proceeded   with   the
investigation to a certain extent.
10)   It is also settled law that for certain defects in investigation,  the
accused cannot be acquitted.  This aspect has  been  considered  in  various
decisions.  In C. Muniappan and Others vs. State of  Tamil  Nadu,  2010  (9)
SCC 567, the following discussion and conclusion are relevant which  are  as
follows:-
      “55. There may be highly defective investigation in a  case.  However,
      it is to be examined as to whether there is any lapse by  the  IO  and
      whether due to such lapse any benefit should be given to the  accused.
      The law on  this  issue  is  well  settled  that  the  defect  in  the
      investigation by itself cannot be a ground for acquittal.  If  primacy
      is given to such  designed  or  negligent  investigations  or  to  the
      omissions or  lapses  by  perfunctory  investigation,  the  faith  and
      confidence of the people in the criminal justice administration  would
      be eroded. Where  there  has  been  negligence  on  the  part  of  the
      investigating agency or omissions, etc. which  resulted  in  defective
      investigation, there is a legal obligation on the part of the court to
      examine the prosecution evidence dehors  such  lapses,  carefully,  to
      find out whether the said evidence is reliable  or  not  and  to  what
      extent it is reliable and as  to  whether  such  lapses  affected  the
      object of finding out the truth. Therefore, the investigation  is  not
      the solitary area for judicial  scrutiny  in  a  criminal  trial.  The
      conclusion of the trial in the case cannot be allowed to depend solely
      on the probity of investigation.

11)   In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC  263,
while reiterating the principles rendered  in  C.  Muniappan  (supra),  this
Court held thus:


      “18.  … Merely because PW 3 and PW 6  have  failed  to  perform  their
      duties in accordance with the requirements of law, and there has  been
      some defect in the investigation, it will not be to the benefit of the
      accused persons to the extent that they would be entitled to an  order
      of acquittal on this ground. …”

12)    In  Gajoo  vs.  State  of  Uttarakhand,  2012  (9)  SCC  532,  
while
reiterating the  same  principle  again,  this  Court  held  that  defective
investigation, unless affects the very root of the prosecution case  and  is
prejudicial  to  the  accused  should  not  be   an   aspect   of   material
consideration by the Court.  Since,  the  Court  has  adverted  to  all  the
earlier decisions with regard to defective investigation and outcome of  the
same, it is useful to refer the dictum laid down in those cases:







      20. In regard to defective investigation, this Court in Dayal Singh v.
      State of Uttaranchal while dealing with the  cases  of  omissions  and
      commissions by the investigating officer, and duty  of  the  court  in
      such cases, held as under: (SCC pp. 280-83, paras 27-36)




           “27. Now, we may advert to the duty of the court in such  cases.
           In Sathi Prasad v. State of U.P this Court  stated  that  it  is
           well settled that if  the  police  records  become  suspect  and
           investigation perfunctory, it becomes the duty of the  court  to
           see if the evidence given in court should  be  relied  upon  and
           such lapses ignored. Noticing the possibility  of  investigation
           being designedly defective, this Court in Dhanaj Singh v.  State
           of Punjab, held: (SCC p.     657, para 5)




           ‘5. In the case of a defective investigation the court has to be
           circumspect in evaluating the evidence.  But  it  would  not  be
           right in acquitting an accused person solely on account  of  the
           defect; to do so [pic]would tantamount to playing into the hands
           of the investigating officer if the investigation is  designedly
           defective.’


      28. Dealing with the cases of omission and commission,  the  Court  in
      Paras Yadav v. State of Bihar enunciated the principle, in  conformity
      with the  previous  judgments,  that  if  the  lapse  or  omission  is
      committed by the investigating agency, negligently or  otherwise,  the
      prosecution evidence is required to be examined dehors such  omissions
      to find out  whether  the  said  evidence  is  reliable  or  not.  The
      contaminated conduct of officials should  not  stand  in  the  way  of
      evaluating the evidence by the courts, otherwise the designed mischief
      would be perpetuated and justice would be denied  to  the  complainant
      party.


      29. In Zahira Habibullah Sheikh (5) v. State  of  Gujarat,  the  Court
      noticed the importance of the role of witnesses in a  criminal  trial.
      The importance and primacy of the quality  of  trial  process  can  be
      observed from the words of Bentham, who states that witnesses are  the
      eyes and ears of justice. The court issued  a  caution  that  in  such
      situations, there is a greater responsibility of the court on the  one
      hand and on the other the courts must seriously deal with persons  who
      are involved in creating designed investigation. The Court held  that:
      (SCC p.     398, para 42)


           ‘42.  Legislative  measures  to  emphasise  prohibition  against
           tampering with witness, victim  or  informant  have  become  the
           imminent  and  inevitable  need  of  the  day.  Conducts   which
           illegitimately  affect   the   presentation   of   evidence   in
           proceedings before the courts have to be seriously  and  sternly
           dealt with. There should  not  be  any  undue  anxiety  to  only
           protect the interest of the accused. That would  be  unfair,  as
           noted above, to the needs  of  the  society.  On  the  contrary,
           efforts should be to ensure a fair trial where the  accused  and
           the prosecution both get a fair deal.  Public  interest  in  the
           proper  administration  of  justice  must  be  given   as   much
           importance, if not more,  as  the  interest  of  the  individual
           accused.  In  this  courts  have  a   vital   role   to   play.’
           (emphasis in original)


        30. With the passage of time, the law also developed and the dictum
        of the court emphasised that  in  a  criminal  case,  the  fate  of
        proceedings cannot always be left entirely  in  the  hands  of  the
        parties. Crime is a public wrong, in breach and violation of public
        rights and duties, which affects the community as a  whole  and  is
        harmful to the society in general.


        31. Reiterating the above principle, this Court in NHRC v. State of
        Gujarat held as under: (SCC pp. 777-78, para 6)
           [pic]‘6. … “35. … The concept of  fair  trial  entails  familiar
           triangulation of interests of the accused, the  victim  and  the
           society and it is the community that acts through the State  and
           prosecuting agencies. Interest of society is not to  be  treated
           completely with disdain and as persona  non  grata.  The  courts
           have always been  considered  to  have  an  overriding  duty  to
           maintain   public   confidence   in   the   administration    of
           justice—often referred to as the duty to  vindicate  and  uphold
           the ‘majesty of the law’.  Due  administration  of  justice  has
           always been viewed as a  continuous  process,  not  confined  to
           determination of the particular case, protecting its ability  to
           function as a court of law in the future as in the  case  before
           it. If a criminal court is to  be  an  effective  instrument  in
           dispensing justice, the Presiding  Judge  must  cease  to  be  a
           spectator and a mere recording machine by becoming a participant
           in the trial evincing intelligence, active interest  and  elicit
           all  relevant  materials  necessary  for  reaching  the  correct
           conclusion, to find out the truth, and administer  justice  with
           fairness and  impartiality  both  to  the  parties  and  to  the
           community it serves. The courts administering  criminal  justice
           cannot turn a blind eye to vexatious or oppressive conduct  that
           has occurred in relation to proceedings, even if a fair trial is
           still possible, except at the risk of undermining the fair  name
           and  standing  of  the  Judges  as  impartial  and   independent
           adjudicators.” (Zahira Habibullah case,  SCC  p.      395,  para
           35)’


      32. In State of Karnataka v. K. Yarappa Reddy this Court occasioned to
      consider the similar question of defective investigation as to whether
      any manipulation in the  station  house  diary  by  the  investigating
      officer could be put against the prosecution case. This Court, in para
      19, held as follows: (SCC p.      720)


        ‘19. But can the above finding (that the station house diary is not
        genuine) have any inevitable bearing on the other evidence in  this
        case? If the other evidence, on scrutiny,  is  found  credible  and
        acceptable, should the court  be  influenced  by  the  machinations
        demonstrated   by   the   investigating   officer   in   conducting
        investigation or in preparing the records so unscrupulously? It can
        be a guiding principle that as investigation is  not  the  solitary
        area for judicial scrutiny in a criminal trial, the  conclusion  of
        the court in the case cannot be allowed to  depend  solely  on  the
        probity of investigation. It is well-nigh settled that even if  the
        investigation is  illegal  or  even  suspicious  the  rest  of  the
        evidence must be scrutinised independently of  the  impact  of  it.
        Otherwise the criminal trial will  plummet  to  the  level  of  the
        investigating officers  ruling  the  roost.  The  court  must  have
        predominance  and  pre-eminence  in  criminal   trials   over   the
        [pic]action taken  by  the  investigating  officers.  The  criminal
        justice should not be made a casualty for the wrongs  committed  by
        the investigating officers in the case.  In  other  words,  if  the
        court  is  convinced  that  the  testimony  of  a  witness  to  the
        occurrence is true the court is  free  to  act  on  it  albeit  the
        investigating officer’s suspicious role in the case.’




      33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State
      of M.P. was reiterated and this Court had  observed  that:  (Ram  Bali
      case15, SCC p.   604, para 12)
        ‘12. … In case of defective  investigation  the  court  has  to  be
        circumspect [while] evaluating the evidence. But it  would  not  be
        right in acquitting an accused person  solely  on  account  of  the
        defect; to do so would tantamount to playing into the hands of  the
        investigation  officer   if   the   investigation   is   designedly
        defective.’



      34. Where our criminal justice  system  provides  safeguards  of  fair
      trial and innocent till proven guilty to an  accused,  there  it  also
      contemplates that a criminal trial is meant for doing justice to  all,
      the  accused,  the  society  and  a  fair  chance  to  prove  to   the
      prosecution. Then alone can law and order be maintained. The courts do
      not merely discharge the function to ensure that no  innocent  man  is
      punished, but also that a guilty man does not escape. Both are  public
      duties of the Judge. During the  course  of  the  trial,  the  learned
      Presiding Judge is expected to  work  objectively  and  in  a  correct
      perspective. Where the prosecution attempts to misdirect the trial  on
      the basis of a  perfunctory  or  designedly  defective  investigation,
      there the court is to be deeply cautious and ensure that despite  such
      an attempt, the determinative process  is  not  subverted.  For  truly
      attaining this object of a ‘fair trial’, the  court  should  leave  no
      stone unturned to do justice and protect the interest of  the  society
      as well.

      35. This brings us to an ancillary issue as to  how  the  court  would
      appreciate the  evidence  in  such  cases.  The  possibility  of  some
      variations in the exhibits, medical  and  ocular  evidence  cannot  be
      ruled out. But it is not that every minor variation  or  inconsistency
      would tilt the balance of justice in favour of the accused. Of course,
      where contradictions and variations are of  a  serious  nature,  which
      apparently or impliedly are destructive of the substantive case sought
      to be proved by the prosecution, they may provide an advantage to  the
      accused. The courts, normally, look at expert evidence with a  greater
      sense of acceptability, but it is equally true that the courts are not
      absolutely guided by the report of the  experts,  especially  if  such
      reports are  perfunctory,  unsustainable  and  are  the  result  of  a
      deliberate attempt to misdirect the prosecution. In Kamaljit Singh  v.
      State of Punjab, the  Court,  while  [pic]dealing  with  discrepancies
      between ocular and medical evidence, held: (SCC p.       159, para 8)

        ‘8. It is trite law that minor variations between medical  evidence
        and ocular evidence do not take away the  primacy  of  the  latter.
        Unless medical evidence in its term goes so far  as  to  completely
        rule out all possibilities whatsoever of injuries taking  place  in
        the manner  stated  by  the  eyewitnesses,  the  testimony  of  the
        eyewitnesses cannot be thrown out.’


      36. Where the eyewitness account is found  credible  and  trustworthy,
      medical opinion pointing  to  alternative  possibilities  may  not  be
      accepted as conclusive.



        ‘34. … The expert witness is expected to put before the  court  all
        materials inclusive of the data which induced him to  come  to  the
        conclusion and enlighten the court on the technical aspect  of  the
        case by  [examining]  the  terms  of  science  so  that  the  court
        although, not  an  expert  may  form  its  own  judgment  on  those
        materials after giving due regard to the expert’s opinion,  because
        once the expert’s opinion is accepted, it is not the opinion of the
        medical officer but [that] of the court.’”


13)   It is clear that merely because of some defect in  the  investigation,
lapse on the part of  the  I.O.,  it  cannot  be  a  ground  for  acquittal.
Further, even if there had been negligence on the part of the  investigating
agency or omissions etc., it is the obligation on the part of the  Court  to
scrutinize the prosecution evidence de hors such lapses to find out  whether
the said evidence is reliable or not and  whether  such  lapses  affect  the
object of finding out the truth.  In the light of the above  principles,  as
noticed, we reject the main  contention  of  the  learned  counsel  for  the
appellant, however, as observed in the above decisions, let us  examine  the
material relied on by the prosecution and find out whether a case  has  been
made out against the appellant.
Discussion as to the merits of the prosecution case:
14)   It is the claim of the appellant that the prosecution has  not  proved
that the travel agency was purported to have been run by S. Rajendran  (A-3)
for the purpose of  submitting  passport  applications.   According  to  the
appellant, Exh.P-2 to P-43 is incorrect.  The said contention is  liable  to
be rejected since Palaniappan (PW-11), who is  the  owner  of  the  building
bearing No.48/9, MCT Building, near Bus Stand, Karaikudi has leased out  the
first floor of the said building to S. Rajendran (A-3) for  the  purpose  of
running a travel agency in the name and style of Goodluck Travels.  Even  in
the cross-examination, PW-11, the owner of the said building, admitted  that
A-3 was a tenant under him.  In addition to the same, it is also clear  from
the evidence of one Dawood  (PW-13)  that  Rajendran  (A-3)  was  running  a
travel agency at Karaikudi in the name and style of  Goodluck  Travels.   It
is also relevant to  point  out  that  as  per  the  evidence  of  Assistant
Registrar, Ramanad District (PW-9), Goodluck Travels  was  registered  as  a
firm in the Office of the District Registrar, Karaikudi.  It is  clear  from
the above materials that A-3 was occupying the said premises  pertaining  to
PW-11 during the period from 1991-93 and he was running a travel  agency  in
that place.
15)   The claim of the appellant that there is  no  evidence  to  show  that
Exh.P-2 to P-43 had been presented by  the  Goodluck  Travels  is  incorrect
since Hema (A-5), who was working as a clerk in the said travel agency of A-
3 has admitted in the statement under Section 313 of the  Code  of  Criminal
Procedure that at the relevant  time  she  was  working  with  the  Goodluck
Travels and she used to submit the passport  applications  in  the  passport
office and receive the passports  from  the  office.   The  above  statement
makes it clear that she  was  assisting  S.  Rajendran  (A-3)  in  preparing
applications and filing them before the  passport  office  and  dealing  the
affairs connected therewith.  This fact  is  also  evident  from  Exh.  P-2,
which is a folder marked on the side of the  prosecution  and  captioned  as
“Goodluck Travels”.
16)    The  other  relevant  aspect  is  the  admissible  portion   of   the
confessional statement of A-3 which is marked as Exh.P-215 and which led  to
the recovery of forged/fabricated rubber stamp seals, M.Os 1 to 3 seized  at
his behest  under  Exh.P-216,  the  Mazahar,  in  the  presence  of  Village
Administrative  Officer  (PW-15)  and  Village   Menial   also   prove   the
prosecution case and disprove the stand of the appellant.
17)   The trial Court, on verification  and  perusal  of  Exh.P-2  to  P-43,
passport applications, noted that the same were filed by  Goodluck  Travels.
It is  pointed  out  that  the  applicant  concerned  in  Exh.P-2  (passport
application) namely, Shri Rasool, authorized M/s Goodluck  Travels  to  deal
with the matter relating to his passport and to  receive  the  same  on  his
behalf.  The evidence of PW-12 and PW-13 also lends credence  to  the  above
aspect.  Further, we  have  already  noted  that  the  appellant  (A-5)  has
admitted in her examination under Section 313  that  she  was  working  with
Goodluck Travels and she used to submit the  applications  in  the  passport
office and receive the passports from the office.
18)   Next, it is contended by the appellant that  the  police  verification
forms, namely, Exh.128 to 136 and 161 to 202 were not proved  to  have  been
forged in the light of the fact that the subsequent  signatures  of  PWs  16
and 29 were not sent to PW-28, the hand writing  expert,  for  his  opinion.
The said contention is liable to be rejected  in  view  of  the  categorical
statement of Shri Selvin (PW-26), DSP, DCRB, Ramanad who has stated that  as
soon as the  personal  particulars,  forms  of  passport  applications  were
received from  the  Passport  Office  for  police  verification,  they  were
entered in the register maintained for the purpose and each application  was
given a number and all the applications were sent to the  respective  Police
Stations for report.  He further explained that after  verification  by  the
officials concerned, the paper would again come to the office of  DSP,  DCRB
for forwarding the same to the  concerned  Passport  Offices.   He  asserted
that 42 application forms, viz., Exh. P-2 to P-43 were not received  at  the
office of DSP, DCRB, Ramanad.  He also highlighted  that  these  forms  were
neither sent to the sub-Inspector of Police  Thiruvadanai  for  verification
nor received back from the S.I. Police and not dispatched  to  the  Passport
Office, Trichy for recommendation for issue of passports.  A perusal of  the
evidence of Shri Natarajan (PW-16), DSP, R. Muniyadi (PW-29),  Sub-Inspector
of Police clearly shows that they did not sign the verification forms.   PW-
29 specifically stated that during the relevant time, passport  applications
(Exh.P-2 to 43) were not received by his office and  he  did  not  sign  the
verification forms Exh.P-161 to P-202.  It is clear  from  their  statements
and assertions that the verification forms of the said 42 applications  have
not been dealt with by the concerned  officials  and  the  trial  Judge  was
right  in  concluding  that  they  were  forged.   Mere  non-production   of
registers  maintained  in  the  office  of  DSP,  DCRB,  Ramanad  cannot  be
construed to be an infirmity in this case in the light of  the  evidence  of
PWs 16, 26 and 29 who are relevant officers concerned with those documents.
19)   Regarding the contention that the specimen  signatures  of  Dr.  Muthu
(PW-18), Civil Surgeon,  Government  Hospital  and  Shri  Vairavan  (PW-20),
Executive Officer (Retired), Town Panchayat,  Thondi  in  Ramanad  District,
who are all independent witnesses, were not forged, it is  very  much  clear
from their evidence that their signatures were forged in  the  applications.
There is no reason to disbelieve their evidence  and  the  trial  Judge  has
rightly accepted the same.
20)   Regarding the evidence of  Village  Administrative  Officers  and  the
certificates issued by  them,  it  is  relevant  to  point  out  that  those
documents were properly marked through Village  Administrative  Officers  of
the villages concerned and also by the officers who  made  a  field  enquiry
for the same.  We  are  satisfied  that  there  is  no  legal  infirmity  as
claimed.
21)   Insofar as the contention relating to recoveries of  M.Os  1  to  3  –
Seals of Superintendent of Police, Ramanad,  as  rightly  concluded  by  the
trial Court, the evidence of the concerned Village Administrative  Officers,
Deputy  Superintendent  of  Police,  Civil   Surgeon   (PW-18),   Government
Hospital,  Executive  Officer  (Retired)  of  Town  Panchayat  (PW-20)   are
sufficient to establish that the forged attested documents were created  and
enclosed for the purpose of getting passports in support of false  addresses
given in the applications by the appellant.  The above fact is also  evident
from the evidence of Village Administrative Officer (PW-15),  Thiruvadanani,
the confessional statement given by A-3 which was recorded under Section  27
of the Evidence Act in his presence and M.Os 1 to  3  which  were  recovered
under a cover of  mazahar  (Exh.  P-216)  at  the  behest  of  A-3  and  the
admissible portion of the evidence leading to recovery which  is  marked  as
Exh. 215. The contradictions as pointed out by the learned counsel  for  the
appellant are only trivial in nature as found by both the  trial  Court  and
the High Court, accordingly, it cannot be construed to be a material one  so
as to affect the version of the prosecution.  We are  satisfied  that  there
is no infirmity in the recovery and  reject  the  argument  of  the  learned
counsel for the appellant.
22)   Coming to the next contention, namely, the failure of the  prosecution
to exhibit the report of FSL, Chennai  with  regard  to  the  impression  of
seals M.Os 1 to 3 is fatal to the prosecution, it is relevant to  note  that
PWs 16, 26 and 29 DSPs and S.I. of  Police  have  categorically  denied  the
genuineness of the above seals since the same  were  recovered  pursuant  to
the confessional statement of A-3 and  the  absence  of  expert  opinion  by
itself does not absolve the liability of the appellant.
23)   The  contention  that  the  evidence  of  Sundaram  (PW-14),  who  was
examined for the purpose of proving the handwriting  of  the  appellant  and
whose competency  to  identify  the  writing  of  the  appellant  itself  is
doubtful, as rightly pointed out by the respondent that it was  admitted  by
A-5 (appellant herein), while questioning under Section  313  that  she  had
been working in Sugir Tours and Travels run by  PW-14  during  1987-91  and,
hence, the evidence of PW-14,  who  identified  the  writings  available  in
Exhs.P-2 to P-43 as that of A-5  is  admissible  under  Section  47  of  the
Indian Evidence Act.  We are satisfied that the same was rightly acted  upon
by the trial Court and the High Court while holding the charge  against  the
accused-appellant  as  proved  to  have  committed  in  pursuance   of   the
conspiracy.
24)   Finally, the contention of  the  appellant  that  simply  because  the
applications were filled up by a person does not automatically lead  to  the
inference that a person is a party to the conspiracy.  In the case on  hand,
it is very well established by the prosecution that the filled  up  passport applications were submitted by A-5  (appellant  herein)  on  behalf  of  her employer A-3.  Further, in majority of passport applications (Exh. P-2 to P-43), bogus particulars were filled by A-5  (appellant  herein),  at  Trichy.
The prosecution has also established that A-5 has  given  false  particulars regarding  the  place  of  residence  of   applicants’   in   the   passport applications in view of her admission in 313 statement that she was  working in Goodluck Travels and assisting Rajendran (A-3) in preparing  applications
and filing them before the Passport Office as well as handling  the  affairs connected therewith which clearly prove that A-5  has  filled  up  the  said passport applications (Exh.P-2 to P-43).  We are  also  satisfied  that  the prosecution has clearly established that false documents were made  for  the purpose of cheating and those documents were used as genuine  for  obtaining
passports.
25)   In the light of the overwhelming evidence placed by  the  prosecution,
analyzed by the trial Court and affirmed by the High Court, interference  by
this Court with concurrent findings of fact  by  the  courts  below  is  not
warranted except where there is some serious infirmity in  the  appreciation
of evidence and the findings are perverse.  Further, this Court
will not ordinarily interfere with appreciation  of  evidence  by  the  High
Court and re-appreciation  is  permissible  only  if  an  error  of  law  or
procedure and conclusion arrived are perverse.

26)   Taking note of the fact that the appellant is having  a  small  child,
while confirming the conviction we reduce the sentence to  six  months  from
two years.

27)   With the above modification i.e., reduction of  sentence,  the  appeal
stands disposed of.

                                  ………….…………………………J.


                                       (P. SATHASIVAM)










                                    ………….…………………………J.


                                      (RANJAN GOGOI)


                                    ………….…………………………J.


                                      (V. GOPALA GOWDA)

NEW DELHI;
JANUARY 7, 2013.









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