Hashim v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 CRL.REV.PET NO. 38 OF 2006** **AGAINST THE JUDGMENT IN CRA 242/1998 OF SESSIONS** **COURT,THIRUVANANTHAPURAM** **CC 149/1993 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-II,ATTINGAL** ## **REVISION PETITIONER/APPELLANT/ACCUSED (A1):** HASHIM, S/O ABOOBACKER, PUTHEN VEEDU, KANYAKULANGARA, VEMBAYAM, MANICKAL VILLAGE. BY ADVS. SRI.B.GOPALAKRISHNA PILLAI SRI.R.T.PRADEEP SRI.V.VIJULAL ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## **OTHER PRESENT:** SRI.SANGEETHA RAJ PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON 02.02.2023 DELIVERED THE FOLLOWING: Crl.R.P.No.38/2006 ## -:2:- O R D E R Dated this the 2[nd] day of February, 2023 This criminal revision petition has been filed challenging the judgment in Crl.Appeal No.242/1998 dated 30/11/2005 on the file of Sessions Court, Thiruvananthapuram (for short, the appellate court) and the judgment in CC No.149/1993 dated 17/6/1998 on the file of the Judicial First Class Magistrate Court -II Attingal (for short, the trial court). 2. The revision petitioner is the first accused. The offences alleged are punishable under sections 120B, 468, 471, 420 r/w 34 of IPC. 3. The revision petitioner was working as a lecturer in MES College, Ponnani. The second accused was his neighbour. It is alleged that the second accused was the tuition teacher of the children of the first accused. The Kerala Public Service Commission conducted a written examination on 7/6/1986 for selection to the post of Assistant Grade II. The second accused was an applicant for the post and she wrote the examination. The answer scripts of the candidates including the second Crl.R.P.No.38/2006 -:3:- accused were entrusted to the first accused for valuation. According to the prosecution, though initially the first accused correctly valued the paper of the second accused and gave mark as per the instructions given by the Public Service Commission, later on, both the accused pursuant to criminal conspiracy, corrected the wrong answers in the answer script and thereafter corrected the original mark awarded to the second accused in consonance with the correction made in the answer script and thus she got the highest mark among the papers valued by the first accused. It is alleged that the first accused then forwarded the answer scripts along with the marks awarded to the candidates to the PSC office. According to the prosecution, both the accused in furtherance of the common intention committed cheating, forged and manipulated answer script and mark list, and used the same as genuine one in order to get the higher rank in the examination for the second accused and thereby committed the offence. 4. Both the accused appeared at the court below. Charge was framed against them under sections 120B, 468, 471, 420 r/w 34 of IPC. The charge was read over and explained to the accused Crl.R.P.No.38/2006 ## -:4:- who pleaded not guilty. 5. On the side of the prosecution, PWs 1 to 16 were examined and Exts.P1 to P16 were marked. After trial, the court below found both the accused guilty under sections 120B, 468, 471, 420 r/w 34 of IPC and they were convicted for the said offences. They were sentenced to undergo simple imprisonment for one year each under sections 120B r/w 34 of IPC, to undergo simple imprisonment for two years each and to pay a fine of `1,000/- each under section 468 r/w 34 of IPC in default to suffer simple imprisonment for three months each, to undergo simple imprisonment for two years each, to pay a fine of `1,000/- each under section 420 r/w 34 of IPC in default to suffer simple imprisonment for three months each and to undergo simple imprisonment for one year each under section 471 r/w 34 of IPC. 6. The revision petitioner/accused No.1 challenged the conviction and sentence before the appellate court. The court below found that there was forgery in Ext.P2 answer script of the second accused mainly based on Ext.P15 report of the forensic science laboratory. Ext.P2 answer script as well as the corrected documents were sent for chemical analysis. Ext.P15 is the Crl.R.P.No.38/2006 ## -:5:- chemical analysis report. It is reported that the corrections in the answer script were made by the revision petitioner. The appellate court found that Ext.P15 was not properly proved. It was observed that Ext.P15 is not a document which falls within section 293 of Cr.P.C and hence without examining the author, contents therein cannot be taken as proved. Accordingly, the appellate court set aside the conviction and sentence passed by the trial court and remanded the matter back to the trial court to give an opportunity to the prosecution to prove Ext.P15 in accordance with law. Challenging the judgments of the trial court as well as the appellate court, the revision petitioner/accused No.1 preferred this revision. 7. I have heard Sri.R.T.Pradeep, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. 8. The learned counsel for the revision petitioner Sri.R.T.Pradeep submitted that an appeal filed by the accused cannot be remanded to give an opportunity to the prosecution to adduce further evidence to fill up its lacuna. The learned counsel relied on the decision of the Apex Court in _**Ajay Kumar Ghoshal**_ Crl.R.P.No.38/2006 -:6:- _**v. State of Bihar**_ [(2017) 12 SCC 699], _**P.Ramesh v. State**_ [(2019) 20 SCC 593] and _**Mohd. Hussain v. State (NCT of Delhi)**_ [(2012) 9 SCC 408] in support of his submission. The learned counsel further submitted that Ext.P2 answer script was found to be missing from the trial court and hence a further remand to prove Ext.P15 would be a futile exercise. 9. The prosecution mainly relied on Ext.P15 report to prove that forgery was committed by the revision petitioner in the mark list as well as in the answer script. There is no other direct evidence to prove the same. Ext.P15 is a relevant piece of evidence relied on by the trial court to fix the culpability on the revision petitioner. The appellate court found that Ext.P15 report is given by Scientific Assistant (Documents) of FSL Thiruvananthapuram and he will not come under the category of experts enumerated in S.293 of Cr.P.C. The appellate court further found that without examining the author of Ext.P15, the contents therein cannot be taken as proved. The appellate court found that the trial court committed illegality in convicting the revision petitioner relying on Ext.P15 alone without examining its author. However, the appellate court was of the view that an opportunity Crl.R.P.No.38/2006 -:7:- has to be given to the prosecution to adduce fresh evidence to prove Ext.P15 in accordance with law and accordingly remanded the case to the trial court. 10. S.386 of Cr.P.C defines the power of the appellate court while disposing of an appeal against an order of conviction or acquittal. S.386(b)(i) empowers the appellate court to order re-trial of the accused. A three Judge Bench of the Apex Court in _**Mohd. Hussain**_ (supra) has held that a _de nova_ trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. It was further held that this power cannot be used to allow the prosecution to improve upon its case or to fill up the lacuna. In _**Ajay Kumar Ghoshal**_ (supra), the Apex Court held that though the word “retrial” is used under section 386(b)(i) of Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. It was observed that the circumstances that should exist for warranting a retrial must be such that where the trial was Crl.R.P.No.38/2006 -:8:- undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. Same view was adopted by the Apex Court in _**P.Ramesh**_ (supra). A Single Bench of this Court in _**P.Mammadkutty and Others v. State**_ (1996 KHC 232) held that in an appeal filed by the accused against conviction and sentence, no remand can be made by the Sessions Court for fresh trial for filling up a lacuna on the side of the prosecution. It was further held that in the absence of either an appeal by the prosecution, or a revision by the defacto complainant, the Sessions Court was not justified in remanding the matter back to the trial court in an appeal filed by the accused against their conviction. The said decision was followed by this Court again in _**Baby v. State of Kerala**_ (2016 KHC 272) and in _**M/s.Subhiksham Pharmaceutical Distributors and Another v. State of Kerala and Another**_ (Crl.R.P. No.651/2015 dated 4/3/2022). Here also, the remand was made in an appeal filed by the accused that too only to fill up the lacuna in the prosecution evidence. That apart, the remand is made to prove the contents of Ext.P15 by examining its author. Necessarily, the Crl.R.P.No.38/2006 ## -:9:- revision petitioner will have to put questions to the witness by confronting the original of Ext.P2. It is already reported that Ext.P2 is lost irrecoverably and reconstruction is impossible. Therefore, no purpose will be served in summoning the author of Ext.P15 to prove its contents. 11. The appellate court has already found that the main documentary evidence relied on by the trial court as well as the prosecution to fix the culpability on the revision petitioner is inadmissible in evidence. Hence, there is no satisfactory evidence to prove the guilt of the revision petitioner. In short, the prosecution has miserably failed to prove the case against the revision petitioner beyond reasonable doubt. Therefore, the revision petitioner/accused No.1 is entitled for an acquittal. In the light of the above findings, the impugned judgments are set aside. The revision petitioner is found not guilty and he is acquitted of the offences charged against him. The criminal revision petition is allowed. ## **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**