ORDER
N.S. Veerabhadraiah, J.
1. This revision is by the accused being aggrieved of the judgment passed in Crl.A.No. 6/2000 dated 19.3.2003 by the learned II Additional Sessions Judge, Kolar dismissing the appeal by confirming the conviction and sentence passed in CC No. 576/98 dated 9.2.2000 by the learned CJM, Kolar for the offence under Section 468 IPC.
2. The brief facts of the case are as follows:
The Town Police, Kolar charge sheeted the accused for the offence under Section 468 IPC on the allegation that on 14.11.96 at about 10.30 a.m. near the College Circle, Kolar, the accused forged the Hall tickets by using seals of the Government Junior College and First Grade College for purposes of using it to attend the examination by some other students instead of actual students. After completion of the Investigation, charge sheet was filed. The Learned CJM secured the presence of the accused and framed charges for the offence under Section 468 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution examined in all P. W.s 1 to 9, produced Exts. PI to P5 and marked M.Os 1 to 14. The statement of the accused was recorded under Section 313 Cr.P.C. The defence of the accused is one of total denial. The accused did not choose to enter into the witness box.
3. The Learned CJM for the reasons recorded in his Judgment, convicted the accused for the offence under Section 468 IPC and sentenced him to undergo SI for a period of 3 years and to pay a fine of Rs.5,000/-. The conviction and sentence was questioned before the Learned II Additional Sessions Judge, Kolar in CC No. 6/2000 which came to be dismissed by judgment dated 19.3.2003. It is this Judgment of conviction and sentence which is questioned in the present revision.
4. The Learned Counsel Sri R.B. Deshpande contended that absolutely there is no evidence to constitute the ingredients of Section 468 IPC. The Learned CJM has clearly held that P.Ws 2,3,4 and 9 have not supported the case of the prosecution. Having so recorded the finding erroneously held that the accused is guilty for the offence under Section 468 IPC. Also submitted that from the evidence of PW.s 1, 5, 6, 7 and 8 nothing is brought out by the prosecution to show as to for what purpose that the alleged hall tickets were used by forging the alleged said documents. Also submitted that there is no evidence to show that the hall tickets are forged. It is also not made out by the prosecution as to whether any Second Year PUC Examination was in progress or not as on 14.11.96. When such being the case, the filing of the charge sheet is bad in law. The said facts have not been considered by both the Courts below and only on surmises and conjectures, the conviction came to be passed. Therefore, prayed to set side the conviction and sentence passed by both the Courts below and to acquit the accused.
5. The Learned High Court Government Pleader Sri. C. Ramakrishna justified the conviction and sentence and submitted that M.Os 1 to 7 were seized at the instance of the accused that too, from his custody and that he did not give any explanation regarding the possessions of the seal and the hall tickets pertaining to some other persons. When the possession of the hall tickets of some other students were found in possession of this accused, it clearly establishes that he forged the hall tickets by affixing the photographs of others to attend the examination by somebody on behalf of the real students. Therefore, prayed to dismiss the revision.
6. In the light of the submissions, the points for consideration that arise are:
1. Whether the judgment of Conviction and Sentence passed by the Learned C.IM does suffer from infirmities? If so, liable to be interfered with?
2. What order?
7. It is time and again held that where there are concurrent findings, normally the High Court should not intefere with such findings. If the Court comes to the conclusion that the judgment of the Court were to suffer from illegality or on account of the lapse of proper appreciation of evidence, a duty is cast on the High Court to re-examine the testimony of the prosecution witnesses to find out the correctness or otherwise of the judgment of the Court below.
8. In the present case, the accused is charged for the offence under Section 468 IPC. Section 468 IPC reads thus:
468. Forgery for purpose of cheating, – Whoever commits forgery intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
9. When the accused is charge sheeted for the offence under Section 468 IPC, the prosecution has to establish (i) that the accused committed forgery and (ii) that he did so with an intention that the document forged shall be used for the purpose of cheating. The object of Section 468 IPC was to find out as to whether the accused deceived someone by making false documents. If the prosecution were to establish forging of the documents and intending to use such forged documents for the purpose of cheating, then only the accused is liable for being convicted. It is with this background, the evidence on record has to be appreciated.
10. The charge framed by the Trial Court reads thus:
That you on 14.11.96 at about 10.30 a.m. at College Circle, Kolar forged the Hall tickets by keeping seals of Government Junior College and First Grade College and intending that it shall be used for the purpose of cheating by attending the examination in place of actual student and thereby, committed an offence punishable Under Section 468 of IPC and within my cognizance.
And I hereby direct that you be tried by me on the said charge.
11. Therefore, this Court has to see as to whether the accused forged any hall tickets to enable some other students to appear for the Examination in place of the actual students. The prosecution has seized M.Os 6 and 7, the 2 admission tickets of II Year PUC Examination pertaining to Sri Shankarananda (M. 0.6) and another Venkateshapp; (M. O. 7). It is relevant to note that the month and year of the Examination was September 1996. This makes clear that the Examination for II Year PUC was held during the month of September 1996. The date of Examination is 15th September 1996 in M.O.6 Whereas M.O.7, the date of examination is 17th September 1996. Therefore, these M.Os.6 and 7, even assuming for a while that the photographs were to have been affixed are of someone, this could hot have been used for any other Examination as the admission ticket is computerised. It is pertinent to note that according to the prosecution, credible information was received on 14.11.96 by the police and that they went near the College Hotel” Vidyarthi Bhavan” and found accused
No. 1 was talking with the students by holding school and College rubber stamps. They caught hold of accused No. 1 whereas, accused No. 2 who was with accused No. 1 ran away at that time. Thus in the evidence of P.W.5, R. Manjunath, P.C, they seized the passport size photographs and admission tickets under the mahazar Ext.P 2. The evidence of P.W.5 cannot be accepted at all as he did not turn up for further examination-in-chief nor was subjected for cross-examination. When the prosecution has not shown anything in so far as the immediate Examination for PUC to be held, the question of using M.O.s 6 and 7 by any others does not arise. M.Os 6 and 7 pertain to the month of September, 1976 which are not at all relevant so as to hold that the accused had infact forged any documents so as to use it for the purpose of attending any future Examination as M.Os 6 and 7 are computerised documents. The said facts have been lost sight of by the Trial Court as well as by the First Appellate Court which itself is sufficient to hold that the ingredients as stated above have not been proved at all.
12. It is relevant to mention that the Learned CJM in his Judgment at Para 13 in the beginning of page 4 has observed thus:
No doubt the seizure mahaar Ext.P 2, panchas P. W.2 and 9 have turned hostile and even the eye witnesses P. W.s 3 and 4 also turned hostile. In my opinion the accused has won over this P. W.s .2, 3, 4 and 9 with an intention to escape from the clutches of the offence of forgery.
13. The above reasoning is nothing but perverse and illegal. The Court instead of acting on the proper legal evidence has acted on the say of the police P. W.s 6 to 8 which does not speak anything about the forgery of the documents or have also not stated anything about the Examination for which the preparation was made by the accused to enable someone to attend the Examination on behalf of the real students.
14. With all these infirmities, the sentence passed by the Trial Court as well as the reasons of the Sessions Court are unsustainable and the reasons are not based on the facts of the base so as to cover the ingredients of Section 468 IPC.
15. For the foregoing resons, the revision is allowed. The conviction and sentence passed by the Trial Court and confirmed by the Sessions Court are set aside by acquitting the accused.
16. The bail bonds shall stand discharged.