M. Nazir and Prasad v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD DAY OF JANUARY 2013/3RD MAGHA 1934 Crl.Rev.Pet.No. 2111 of 2006 ( ) ----------------------------- AGAINST THE JUDGMENT IN CRA.231/2000 of II ADDL.D.C. & ADDL.MACT,KOLLAM AGAINST THE JUDGMENT IN CC.235/1995 of J.M.F.C.-III, PUNALUR ## REVISION PETITIONER(S)/PETITIONERS/APPELLANTS/ACCUSED NOS.1 & 2: 1. M.NAZIR, S/O. MUHAMMED KUNJU, J.M.K.MANZIL, KALLAMBALAM, OTTUR VILLAGE CHIRAYINKEEZH TALUK. 2. PRASAD, S/O. BHASKARAN, BUNGLOW VILAYIL VEEDU, NEAR MADAVOOR, KUDRI TEMPLE MADAVOOR VILLAGE. BY ADVS.M/S. B.RAMAN PILLAI, SRI.GEORGE PHILIP SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN & SRI.DELVIN JACOB MATHEWS COMPLAINANT(S)/COMPLAINANT: ---------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. Crl.R.P. No. 2111 of 2006 .................................................. Dated:- 23rd day of January, 2013 ## ORDER The petitioners were concurrently held guilty of the offences punishable under sections 120B, 465, 468, 471 and 419 r/w 34 of IPC. They were sentenced to undergo simple imprisonment for one year and to pay Rs.1,000/- as fine for the offence under section 468 of IPC and simple imprisonment for six months each for offences under sections 419 and 471 of IPC. 2. The case of the prosecution is stated in brief as follows: The 1[st] accused had applied for Final Year B.Sc. (Botany) Degree Examination which was to be held in April 1986. He was a private candidate. The centre of Crl.R.P. No. 2111 of 2006 -:2:- examination was S.N. College, Punalur. He obtained the hall ticket having registration no.11632. It is alleged that A1 conspired with A2 and in pursuance of that criminal conspiracy, the hall ticket issued to A1 was forged by A1 and A2 by affixing the photograph of A2 replacing the photograph of A1. That forged hall ticket was used by A2 as genuine and A2 impersonated himself as A1 and the hall ticket, which was affixed with A2's photograph, was used by A2. He wrote the examination impersonating himself as A1. This was done with the intention to cheat the university and college authorities. 3. Exhibit P21 – the F.I.R. was registered based on the statement/complaint (Ext.P22) received from the University. After conducting investigation, charge sheet was laid. PWs 1 to 23 were examined and Exhibits P1 to P24 were marked. The courts below found that Ext. P1 – the hall ticket was affixed with the photograph of A2. Hall ticket was issued in the name of A1. A1 was the candidate -:3:- Crl.R.P. No. 2111 of 2006 as can be seen from Ext.P2 – application form. That fact is not denied by the accused also. The contention that the photograph seen affixed on Ext.P1 – hall ticket was not proved to be of A2, is bereft of any merit, the prosecution contends. A mere perusal of Exts. P1 and P2 would make it indubitably clear that the photograph affixed on Ext.P1 - the hall ticket is not that of the Ist accused. It is beyond any pale of doubt that the photograph affixed on Ext.P2 application, submitted by A1, is that of A1. It has come out in evidence that the photograph that was originally affixed on Ext.P1 was removed and the photograph of the another person (allegedly 2nd accused) was affixed at that place which according to the prosecution was done in pursuance of the criminal conspiracy hatched between A1 and A2 in order to enable A2 to write the examination on behalf of A1. 4. It was deposed by PW2 – the Veterinary Surgeon at Kallambalam, that the photograph affixed on Ext.P2application was attested by him identifying the photograph Crl.R.P. No. 2111 of 2006 -:4:- of the applicant (A1) mentioned therein. Since the photograph affixed on Ext.P1-hall ticket is of a different person, the contention that there was no element of forgery is devoid of any merit. The evidence given by PW2, on that point, was rightly accepted by the courts below. 5. The Principal of S.N. College, Punalur, was the Chief Superintendent for the Examinations. It was stated that an anonymous letter, addressed and received by the Vice Chancellor, was forwarded to the Principal. That letter was marked as Ext.P16. It is contented by the petitioners that, though based on that anonymous letter, the invigilators had verified the hall tickets and the persons writing the examination, they could not find anything wrong. That is not of any consequence, the Prosecution contends. The question is not whether the contents of that letter were correct or not, but whether A2 impersonated A1 and wrote the examination on behalf of A1 by using a forged hall ticket. The fact that the Principal (CW1) was not -:5:- Crl.R.P. No. 2111 of 2006 examined in this case is also not of any significance since the forgery alleged and impersonation committed and other aspects are to be proved not by the Principal, but by the records seized and produced before Court. It is stated that CW1 could not be examined because she was not available. But PW1- the Professor of the Department of History, S.N. College, Punalur, deposed that she was the Senior Assistant whereas the Principal was the Chief Superintendent who was in charge of the examinations. It was stated by her that she had inspected the examination hall on 9.4.1986 and had examined the hall ticket. It was stated that she had verified the hall ticket bearing no.11632 and then it was found that the person who wrote the examination was the person whose photograph was seen affixed on Ext.P1 – hall ticket. As stated earlier, the photograph found on Ext. P1 is not that of A1. The admitted photograph of A1 found on Ext.P2 application is totally different from that is seen in Ext. P1. The evidence given by PW4 - the Headmistress of -:6:- Crl.R.P. No. 2111 of 2006 Government Higher Secondary School, Palayamkunnu, that the signature found on Ext.P1 hall ticket was not her signature but, at the same time, the seal of her school was seen affixed on Ext.P1 as could be seen from the evidence given by PW3 as well. Since it was the Head Mistress who was to sign on the photograph and since the signature found on the photograph was not proved to be of PW4, that would prove that Ext.P1 hall ticket was forged by forging/simulating the signature of the Headmistress. How the accused could obtain the seal of the G.H.S.S., Palyamkunnu, and who affixed it on Ext.P1 are not required to be probed into, for it has come in evidence that the signature seen on the photograph in Ext.P1 was not that of PW4. Therefore, it is crystal clear that Ext. P1 was forged by A1 and another person. 6. The evidence given by P.W.2 the doctor is very clear, cogent and convincing that Ext.P2 the application submitted by A1 was produced before him by A1 for -:7:- Crl.R.P. No. 2111 of 2006 attesting the photograph affixed on Ext.P2. It was stated that the first accused was known to him for about 2 or three years prior to the date of attestation of the same. It was testified by him that it was because the person whose photograph was affixed on Ext.P2 was known to him personally, he attested the photograph putting the date 6-2-1986. But the portion where year was written was seen torn off. Whatever that be, the fact remains, that the photo of the first accused which was affixed on Ext.P2 application was attested by P.W.2. Therefore, it is crystal clear that the first accused was the candidate and Ext.P2 the application submitted by A1 was affixed with his photograph. As pointed out earlier, Ext.P1 the hall ticket was affixed with a photograph which is evidently not that of A1. On that photograph, signature in green ink purported to be of the Headmaster/Headmistress is seen. Beneath the same, there is a seal of Government Higher Secondary School. To prove that aspect, the specimen impression of Crl.R.P. No. 2111 of 2006 -:8:- the seal of School was taken as Ext.P3 and that fact was proved by P.W.3. But the Headmistress (P.W.4) whose signature appears on Ext.P1 has deposed before Court that that signature was not that of hers. Therefore, it could be proved beyond reasonable doubt that Ext.P1 the hall ticket was forged by getting a photograph of another person affixed on it and also by getting the signature of the Head Mistress forged on that photograph as if it was signed/attested by the Headmaster/Headmistress of the Government Higher Secondary School. That would clinch the issue that Ext.P1 was forged and made use of for writing the examination by impersonation. 7. P.W.15 the Investigating Officer had taken the specimen handwriting and signatures of both the accused. P.W.21 the Assistant Director (Documents F.S.L. Thiruvananthapuram) has testified before Court that the documents which were forwarded to him were examined and compared with the standard document in all aspects of -:9:- Crl.R.P. No. 2111 of 2006 the handwriting, identification and forgery with scientific aid. After examination Ext.P23 certificate was issued by him. It is in evidence that the standard writings and signatures stamped and marked S1 to S 63 are that of accused No. 1 (See the 2nd page of Ext.P23). The questioned document Q. 10, Q.11 and Q.12 (found on Ext.P2 application) were in the handwritings of accused No.1. Similarly, the blue enclosed standard writings marked as S 64 to S126 are that of accused No.2 (See the Ist page of Ext. P23). The red enclosed questioned writing marked as Q.13 is that of accused No.2 (See the report - Ext.P23). It was stated by him, after perusing the result of examination noted in Ext.P23, that the person who wrote blue enclosed standard writings and signatures stamped and marked S1 to S63 also wrote the red enclosed questioned writings and signatures similarly stamped and marked as Q10, Q11 and Q12. It was further stated by him that the person who wrote the blue enclosed standard writings and signatures Crl.R.P. No. 2111 of 2006 -:10:- stamped and marked S 64 to S 126 also wrote the red enclosed questioned writings similarly stamped and marked Q.13. Therefore, the aforesaid evidence would show that the questioned writing Q.13 which is the handwriting on the hall ticket was that of accused No.2. Therefore, the contention that A2 had no role and that he was wrongly implicated in this case is found to be bereft of any merit, the prosecution contends. That would further prove that the handwriting on Ext. P1 the hall ticket was not put by A1 evidently because when the invigilators require the candidate to put the signature, it has to be put by the person who was actually present in the examination hall, writing the examination and it was to facilitate the other accused (A2) to put signature before the Invigilator that he was made to put such signature on Ext.P1, the hall ticket as well. Therefore, it is crystal clear that A1 and the other person who wrote the examination had conspired together and it was in pursuance of that Crl.R.P. No. 2111 of 2006 -:11:- conspiracy the other person wrote the examination personating himself as accused No. 1. 8. From the evidence and circumstances pointed out earlier, it can be found that there was meeting of minds between A1 and the other person. They conspired together or mutually aided to commit cheating by personation and in pursuance of that criminal conspiracy or meeting of minds the other man personated himself as A1 and wrote the examination on behalf of A1 using the hall ticket which was issued in the name of A1. For the purpose of accomplishing the common intention and to enable the other man to write the examination personating himself as A1, the photograph affixed on Ext.P1 the hall ticket was replaced with the photograph of the other person who wrote the examination. In order to write the examination on behalf of A1, the other person himself made the writings on Ext.P1 the hall ticket. Accused No.1 contended that it was he who wrote the examination. That Crl.R.P. No. 2111 of 2006 -:12:- was found to be absolutely false. It was already found that the evidence given by P.W.2 would show that the photograph affixed on Ext.P2 application is that of the first accused, the applicant. The photograph found on Ext.P1 the hall ticket is stated to be of the second accused. The fact that it was his photograph was not disputed before the courts below, the prosecution contends. A vague contention was advanced by the second accused that in order to see that he was harassed by the prosecuting agency, the Principal of the College etc. his photograph was subsequently pasted on Ext.P1 hall ticket. That was found to be totally untrue. There is evidence to show that the signature purported to be of P.W.4 Nalini, seen on the photograph affixed on Ext.P1 hall ticket was not that of P.W.4 as has been deposed by P.W.3 or P.W.4. There can be no dispute that the photograph found on ExtP1 is not that of A1. Therefore, the cumulative effect of the evidence that the photograph of another person was affixed on Ext.P1 Crl.R.P. No. 2111 of 2006 -:13:- and upon that photograph the signature of P.W.4 Nalini was forged would prove to the hilt that A1 and the other person together forged Ext.P1 hall ticket . 9. The learned counsel for the petitioners would submit that the Courts below proceeded on the premise that the photograph affixed on Ext.P1 hall ticket was that of the second accused. But no acceptable evidence was adduced on that point. Nobody did identify the photograph seen affixed on Ext.P1 hall ticket as that of the second accused. No witness also did depose before Court that it was the second accused who was seen writing the examination on 8-4-1986 and 9-4-1986. It is pointed out by the learned counsel that no question was put to the second accused while examined under Sec. 313 Cr.PC. as to such incriminating circumstances to hold that it was the second accused who was seen writing the examination on 8-4-1986 or 9-4-1986. Similarly, no question was also put to A2 to the effect that the photograph seen affixed on Ext.P1 hall -:14:- Crl.R.P. No. 2111 of 2006 ticket was that of the 2nd accused. The learned counsel would further submit that in fact the statements were to the effect that the witnesses could not say that it was the 2nd accused who wrote the examination on 8-4- 1986 or 9- 4-1986. It seems the prosecuting agencies did not focus their attention to elicit such answers to prove the identity of the 2nd accused as the person who wrote the examination on the two days personating himself as the first accused. No doubt, there is evidence in abundance to show that it was not the first accused who wrote the examination on those two days. It is also not in dispute that the photograph affixed on Ext.P1 hall ticket is not that of the first accused. It is also not in dispute that the photograph affixed on Ext.P2, the application is that of the first accused. The identity of the first accused could not be assailed at all. 10. The only piece of evidence that is now available against the 2nd accused is the report of the handwriting -:15:- Crl.R.P. No. 2111 of 2006 expert (P.W.21) who has deposed that the red enclosed questioned writing, marked as Q. 13 found on the hall ticket (Ext.P1) is that of the second accused. The learned counsel for the petitioner submits that though that evidence could have been used by the prosecution to lend support to its case, that cannot be the sole basis for entering a verdict of conviction. It is argued that science of identification of handwriting is not so perfect and, the risk is therefore, higher. It is also pointed out that the prosecution has not proved which are the handwritings of A2, admitted or questioned. It was held by the Apex ## Court in **Muralilal v. State - AIR 1980 SC 531.** _"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But having due regard to the imperfect nature of the science of identification of handwriting, the approach as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered . In appropriate cases, corroboration may be sought. in cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt,_ Crl.R.P. No. 2111 of 2006 -:16:- _the uncorroborated testimony of a handwriting expert may be accepted"._ It is vehemently argued by the learned counsel for the petitioners that if in fact the second accused herein was the person to wrote the examination on the two days mentioned earlier, then certainly the specimen handwritings obtained from the second accused should have been identical to the handwritings seen on the answer sheets allegedly written by the second accused on behalf of the first accused. It was reported by the expert that handwritings in the answer sheets could not be identified as that of the second accused. Had that report been favourable to the prosecution then certainly that also could have been made use of as an additional circumstance to hold with certainty that it was the second accused who wrote the examination on behalf of A1. Hence, the benefit of reasonable doubt has to be given to the second accused, the learned counsel submits. Crl.R.P. No. 2111 of 2006 -:17:- 11. It was held by the Apex court in **Ishwari Prasad v. Mohammed Isa – AIR 1963 SC 1728 t** hat expert evidence of handwriting can never be conclusive because it is after all opinion evidence. That view was re-iterated by the Apex court in **Shashi Kumar v. Subodh Kumar - AIR 1964 SC 529 and Fakhruddin v. State of M.P. - AIR 1967 SC 1326 and Magan Bihari Lal v. State of Punjab – AIR 1977 SC 1091.** It is not known why the prosecution did not elicit through the witnesses that the person who wrote the examination was A2 and it was his photograph that was seen on Ext.P1 hall ticket. Had such evidence been brought on record there would have been no difficulty for the court to come to a definite conclusion that it was the 2nd accused who wrote the examination impersonating A1. It is argued by the learned Public Prosecutor that A2 had no case that the photograph affixed on Ext.P1 hall ticket was not of his. But the learned counsel for the petitioner would submit that since no such -:18:- Crl.R.P. No. 2111 of 2006 evidence was adduced by the prosecution, the question of putting questions to those witnesses by the second accused did not arise at all, for, if only there was evidence it was liable to be challenged. In other words, according to the defence, there was no necessity of inviting answers from the prosecution witnesses only to the detriment of the second accused. Therefore, according to the defence, the fact that questions were not put with regard to the photograph affixed on Ext,.P1 whether it be of A2 or of somebody else is of no consequence at all because the prosecution did not elicit answer from the witness that the photograph in Ext.P1 is that of A2 or that it was A2 who actually wrote the examination. 12. On going through the judgments of the courts below it would appear that the courts proceeded on the premise that there was no dispute that the photograph seen on the hall ticket was that of the second accused. But there is no legal evidence to hold that the photograph seen on Crl.R.P. No. 2111 of 2006 -:19:- Ext.P1 was that of the second accused. In the absence of any other evidence which could have been adduced by the prosecution, it is difficult to hold that the prosecution could prove beyond reasonable doubt, the identity of the second accused as the person who wrote the examination. But there is unassailable evidence that A1 had used a forged hall ticket and made another person to write the examination on his behalf on 8-4-1986 and 9-4-1986. 13. The contention raised by A1 that it was he himself who wrote the examination is proved to be false. It was not A1 who wrote the examination on those days. Instead, A1 in furtherance of the common intention caused another person to write the examination on his behalf and thus he is to be found guilty of the offence under Sec.419 r/w 34 IPC. Since it was he who made another man to write the examination by impersonation, it can be found that Ext.P1 - hall ticket was forged by him with the assistance of the other man and as such, his conviction under Sec.465 r/w 34 IPC is to be -:20:- Crl.R.P. No. 2111 of 2006 confirmed. Since Ext.P1, the hall ticket was proved to be a forged one, especially because the photograph of a person other than that of himself (A1) was affixed on it in order to commit the offence of cheating by personation, the court below rightly convicted the first accused for the offence punishable under Sec.471 r/w 34 IPC since it could be proved that he used a forged document knowing it to be a forged one. Since Ext.P1, the hall ticket was forged in order to commit the offence of cheating, the conviction entered against him for offence under Sec.468 r/w 34 IPC is also well founded. He was sentenced only to imprisonment for one year and to pay Rs.1,000/- as fine for the offence under Sec.468 of IPC. He was also sentenced to lesser terms of imprisonment for other offences which are to run concurrently. Therefore, the conviction and sentence passed against A1 are confirmed. The conviction and sentence passed against the 2[nd] accused are set aside. The 2[nd] accused is acquitted of the offence and he is set at -:21:- Crl.R.P. No. 2111 of 2006 liberty. The bail bond executed by A2 will stand cancelled. The learned Magistrate will take steps to execute the sentence as against A1 immediately. _Dated this the 23rd day of January, 2013._ **Sd/-N.K.BALAKRISHNAN, JUDGE.** jincy/jvt/ani/ ## /true copy/ P.S. to Judge