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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