{"id":251157,"date":"2010-02-25T00:00:00","date_gmt":"2010-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/swamidurai-vs-state-by-on-25-february-2010"},"modified":"2018-09-02T01:06:01","modified_gmt":"2018-09-01T19:36:01","slug":"swamidurai-vs-state-by-on-25-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/swamidurai-vs-state-by-on-25-february-2010","title":{"rendered":"Swamidurai vs State By on 25 February, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Swamidurai vs State By on 25 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/02\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE C.T.SELVAM\n\nCrl.A.(MD)254of 2001\nCrl.A.(MD)258 of 2001\nCrl.A.(MD)268 of 2001\nCrl.A.(MD)290 of2001\nCrl.A.(MD)296 of 2001\nCrl.A.(MD)299 of 2001\nand\nCrl.A.(MD)303 of 2001\n\n\n1.Swamidurai\t\t   .. Appellant in Crl.A.254\/2001-A3\n\n2.P.Meyyappan\t\t   .. Appellant\tin Crl.A.258\/2001-A5\n\n3.S.Rajamohamed\t\t   .. Appellant in Crl.A.268\/2001-A1 \t\n4.Dr.J.Elangovan\t   .. Appellant in Crl.A.290\/2001-A2\n\t\t\t\t \t\n5.R.Sivasamy\t\t   .. Appellant in Crl.A.296\/2001-A4\n\t\t\n6.S.Paulraj\t\t   .. Appellant in Crl.A.299\/2001-A6\n\t\t\t\n7.A.Rangasamy\t\t\t\n8.M.Durairaj\t\t   .. Appellants in Crl.A.303\/2001\n \t\t\t     -A7 & A8\n\t\t   \t\t\nVs\n\n\nState by\nDeputy Superintendent of Police\nVigilance and Anti-Corruption Wing,\nSivaganga.\t\t\t\t\n\t\t\t\t\t.. Respondent\n\t \t\t\t\t   (in all Crl. Appeals)\n\n\n:COMMON PRAYER\n\nCriminal appeals filed under Section 374(2)<\/a> of Cr.P.C., against\nthe judgement and Conviction dated 9.3.2001 and made in C.C.No.140\/1991 on the\nfile of Additional Sessions Judge-cum-Chief Judicial Magistrate, Sivaganga.\n\n!For Appellants\t\t\n A1\t\t  ... M\/s.R.N.Amarnath\n A2\t\t  ... M\/s.Veerakathiravan\n A3\t\t  ... M\/s.T.Munirathnam Naidu\n A4\t\t  ... M\/s.Thirumalairaj, SC\n\t\t      for Mr.S.Chandrasekaran\n A5 & A6\t  ... Mr.AR.L.Sundaresan SC\n\t\t      M\/s.Al.Gandhimathi\n A7 & A8\t  ... M\/s.T.Muruganantham\t\n\n^For Respondent   ... Mr.P.Rajendran,GA (Crl.side)\n\n\n:JUDGMENT\n<\/pre>\n
\tThese appeals are filed against the judgement dated 9.3.2001 and made in
\nC.C.No.140\/1991 on the file of Additional Sessions Judge-cum-Chief Judicial
\nMagistrate, Sivaganga.  11 accused faced trial in such proceedings for offences
\nunder Sections 120(b)<\/a>, 467<\/a>, 471<\/a> r\/w.467 and 109, 161, 167, 477(A), 467, 409, 406
\nr\/w.109 I.P.C<\/a> and Section 5(1)(c)(d)<\/a> r\/w 5(2) of the Prevention of Corruption
\nAct<\/a>, 1947 r\/w 109 IPC<\/a>.  Of the 11 accused, A9 died pending trial, accused 10 &
\n11 were acquitted.  Accused 1 to 8 stood convicted as follows:
\nA1:- U\/s.120(B), 467, 471 r\/w 467 (13 counts), 461,    467, 471 r\/w 467, 477A,
\n467, 409 and Section 5(1)(c)(d)<\/a> r\/w 5(2) of the Prevention of Corruption Act<\/a>,
\n1947 and sentenced to undergo rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence u\/s.120(B);
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence u\/s.467 IPC<\/a>; rigourous imprisonment for 3
\nyears & fine of Rs.250\/- for each count & i\/d. 9 months rigourous imprisonment
\nfor offence u\/s.471 r\/w 467(13 counts); rigourous imprisonment for 3 years &
\nfine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence u\/s.467;
\nrigourous imprisonment for 3 years for offence u\/s. 471 r\/w 467; rigourous
\nimprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months rigourous
\nimprisonment for offence u\/s.477A;   rigourous imprisonment for 3 years & fine
\nof Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence u\/s.467;
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence u\/s.409; rigourous imprisonment for 3 years &
\nfine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence
\nu\/s.5(1)(c)(d) r\/w 5(2) of the PC Act<\/a>.\n<\/p>\n
A2:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts), 161, u\/s. 5(1)(d)
\nr\/w Sec.5(2) of the PC Act<\/a> and u\/s. 5(1)(c)(d) r\/w Sec.5(2) of the PC Act<\/a> and
\nsentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000\/- &
\ni\/d. 9 months rigourous imprisonment for offence u\/s.120(B); rigourous
\nimprisonment for 3 years & fine of Rs.3000\/- & i\/d. 9 months rigourous
\nimprisonment for offence 467 IPC<\/a>; rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence 406 r\/w 109 IPC<\/a>;
\nrigourous imprisonment for 3 years & fine of Rs.250\/- (for each count) & i\/d. 9
\nmonths rigourous imprisonment for offence 471 r\/w 109 IPC<\/a> (13 counts); rigourous
\nimprisonment for 3 years & fine of Rs.3000\/- & i\/d. 9 months rigourous
\nimprisonment for offence 161 IPC<\/a>; rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence u\/s. 5(1)(d) r\/w
\nSec.5(2)of the PC Act<\/a>; and rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence u\/s. 5(1)(c)(d)
\nr\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
A3:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts), 161, u\/s. 5(1)(d)
\nr\/w Sec.5(2) of the PC Act<\/a> and u\/s. 5(1)(c)(d) r\/w Sec.5(2) of the PC Act<\/a> and
\nsentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000\/- &
\ni\/d. 9 months rigourous imprisonment for offence u\/s.120(B); rigourous
\nimprisonment for 3 years & fine of Rs.3000\/- & i\/d. 9 months rigourous
\nimprisonment for offence 467 IPC<\/a>; rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence 406 r\/w 109 IPC<\/a>;
\nrigourous imprisonment for 3 years & fine of Rs.250\/- (for each count) & i\/d. 9
\nmonths rigourous imprisonment for offence 471 r\/w 109 IPC<\/a> (13 counts); rigourous
\nimprisonment for 3 years & fine of Rs.3000\/- & i\/d. 9 months rigourous
\nimprisonment for offence 161 IPC<\/a>; rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence u\/s. 5(1)(d) r\/w
\nSec.5(2)of the PC Act<\/a>; and rigourous imprisonment for 3 years & fine of
\nRs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence u\/s. 5(1)(c)(d)
\nr\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
A4:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts), 467, 471 r\/w 467,
\nand u\/s. 5(1)(c)(d) r\/w Sec.5(2) of the PC Act<\/a> and sentenced to undergo
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence u\/s.120(B); rigourous imprisonment for 3
\nyears & fine of Rs.3000\/- & i\/d. 9 months rigourous imprisonment for offence 467
\nIPC<\/a>; rigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence 406 r\/w 109 IPC<\/a>; rigourous imprisonment for 3
\nyears & fine of Rs.250\/- (for each count) & i\/d. 9 months rigourous imprisonment
\nfor offence 471 r\/w 109 IPC<\/a> (13 counts); rigourous imprisonment for 3 years &
\nfine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence 467 IPC<\/a>;
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence 471 r\/w 467 IPC<\/a>; and rigourous imprisonment
\nfor 3 years & fine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment  for
\noffence u\/s. 5(1)(c)(d) r\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
A5:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts), 477A and 5(1)(c)(d)
\nr\/w Sec.5(2) of the PC Act<\/a> and sentenced to undergo rigourous imprisonment for 3
\nyears & fine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence
\nu\/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3000\/- & i\/d. 9
\nmonths rigourous imprisonment for offence 467 IPC<\/a>; rigourous imprisonment for 3
\nyears & fine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence
\n406 r\/w 109 IPC<\/a>; rigourous imprisonment for 3 years & fine of Rs.250\/- (for each
\ncount) & i\/d. 9 months rigourous imprisonment for offence 471 r\/w 109 IPC<\/a> (13
\ncounts); rigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence 477A IPC<\/a>; and rigourous imprisonment for 3
\nyears & fine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence
\nu\/s. 5(1)(c)(d) r\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
A6:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts), 477A and u\/s.
\n5(1)(c)(d) r\/w Sec.5(2) of the PC Act<\/a> and sentenced to undergo rigourous
\nimprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months rigourous
\nimprisonment for offence u\/s.120(B); rigourous imprisonment for 3 years & fine
\nof Rs.3000\/- & i\/d. 9 months rigourous imprisonment for offence 467 IPC<\/a>;
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence 406 r\/w 109 IPC<\/a>; rigourous imprisonment for 3
\nyears & fine of Rs.250\/- (for each count) & i\/d. 9 months rigourous imprisonment
\nfor offence 471 r\/w 109 IPC<\/a> (13 counts); rigourous imprisonment for 3 years &
\nfine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment for offence 477A IPC<\/a>;
\nand rigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment  for offence u\/s. 5(1)(c)(d) r\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
A7 & A8:- U\/s.120(B), 467, 406 r\/w 109, 471 r\/w 109 (13 counts) and u\/s.
\n5(1)(c)(d) r\/w Sec.5(2) of the PC Act<\/a> and sentenced to undergo rigourous
\nimprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months rigourous
\nimprisonment for offence u\/s.120(B); rigourous imprisonment for 3 years & fine
\nof Rs.3000\/- & i\/d. 9 months rigourous imprisonment for offence 467 IPC<\/a>;
\nrigourous imprisonment for 3 years & fine of Rs.3,000\/- & i\/d. 9 months
\nrigourous imprisonment for offence 406 r\/w 109 IPC<\/a>; rigourous imprisonment for 3
\nyears & fine of Rs.250\/- (for each count) & i\/d. 9 months rigourous imprisonment
\nfor offence 471 r\/w 109 IPC<\/a> (13 counts); and rigourous imprisonment for 3 years
\n& fine of Rs.3,000\/- & i\/d. 9 months rigourous imprisonment  for offence u\/s.
\n5(1)(c)(d) r\/w Sec.5(2)of the PC Act<\/a>.\n<\/p>\n
\t2. The case of the prosecution is as follows:\n<\/p>\n
\t2.1. 1st Accused S.Rajamohamed was the manager of the Kannangudi Pandyan
\nGrama Bank during 1981.  Accused 5 & 6 were cashier and Junior Assistant
\nrespectively in the said Bank, A2 was the veterinary Doctor attached to the
\nKannangudi Panchayat Union, A3 was functioning as Welfare Officer, while A9
\n(deceased) was the Revenue Inspector at Devakottai, A11 was the Village
\nAdministrative Officer at Sooriyankudiyiruppu.  They were Government Servants.
\nA4 was the President of Sooriyankudiyiruppu Goat Rearers Association.  A7 &  A8
\nwere independent persons.  A10 was an independent agent of the Bank.\n<\/p>\n
\t2.2.The accused are said to have joined hands towards usurping loan funds
\nunder the Integrated Rural Development Programme (IRDP), released through the
\nPandyan Grama Bank and for purchase of milch cows, sheep, carts etc., for the
\nuse of small and very small farmers.  They entered into a conspiracy where
\nunder, A4 & A1 with the help of the other accused, made it appear that non-
\nexistent persons had applied for loan, prepared false documents there regards,
\nused the same as genuine and made it appear that loans were granted there under.\n<\/p>\n
\t2.3.Similarly, the accused also forged the signature of several persons as
\nif they had been granted loan under the scheme and usurped the funds.  The
\nfinger prints obtained from certain farmers under the guise of affording them
\nloans were also used towards such wrongful purpose.  The 1st accused received a
\nsum of Rs.2,000\/- and the 3rd accused received Rs.1,000\/- for himself and
\nRs.2,000\/- for the 2nd accused as bribe from one Manickam.  The 2nd accused
\nissued false certificate to the effect that cattle has been purchased. By these
\nmeans, a sum of Rs.64,000\/- was drawn under the IRDP Scheme and usurped by the
\naccused.  The accused 1,2,3,5,6,9,11 were Government officials while A4 was the
\nCo-operative Society President and accused 7,8 & 10 were independent persons.
\nIt is in respect of such conduct of the accused, that they faced charges and
\nstood trial before the lower Court.  The lower Court was pleased to convict the
\naccused A1 to A8 as aforementioned.\n<\/p>\n
\t3. The prosecution examined 40 witnesses and marked Exs.P1 to P136.  The
\ndefendants examined one witness and marked Exs.D1 to D8.  PW’s 1 to 6 were the
\nsanctioning authorities.  PW7 has prepared the initial report regarding
\ncommission of offences.  PW8 was the Manager at the Panchayat Union Office
\nKannangudi.  He has spoken to Panchayat Union Commissioner recommending 45
\npersons for availment of subsidy in the purchase of cattle, carts etc., under
\nIRDP Scheme and that it was for that Commissioner to verify the implementation
\nas also verify that the recommendation of the Block Development Officer were in
\norder.  He has spoken to A4 making certain recommendations as also that the
\nPanchayat Union Commissioner made some recommendations on his own.  He has
\ninformed that, it was the Block Development Officer who held the records
\nregarding eligible farmers and the same originally was prepared by the Revenue
\nOfficials.  PW7 was the Secretary of the Eriyur Agricultural Co-operative
\nSociety.  He knew the 4th accused who forwarded a list enquiring if the persons
\nmentioned therein had dues with the Society.  He had issued certificates in this
\nregard, but had not verified if such persons were members of the Society. PW10,
\n11,12, 13,17, 15, 28, 29, 30, 31, 32, 33 were the alleged beneficiaries.  PW10,
\none of the alleged beneficiaries doubted that the signature on the loan
\ndocuments was his.  PW11 denies availment of loan and says that there was no
\nperson who answered to a particular name.  PW12 also denies that there was a
\nperson who answered to a particular name.  PW13 having availed of loan denies
\nthat the photo shown to him was his or that he had affixed his thumb impression.
\nPW15 admits to having availed loan.  PW15 admits to not knowing how many persons
\nwho had particular names resided in his village.  PW28 denies having signed any
\ndocuments, says that none examined him or obtained signatures for comparison.
\nPW29 denies the signature as that of his father.  It is seen that the father was
\nalive but has not been examined.  PW30 denied applying for loan but admits that
\nthere are others by his name.  PW31 admits to having been a guarantor.  PW32,
\nwho is his brother in law admits that there are others by his name.  PW32 admits
\nof having stood as guarantor but informs that the photograph on the loan paper
\ndiffers.  PW 16, 18 & 19 examined for similar purposes, have turned hostile.
\nPW17 admits of having no knowledge of the numbers of persons in the village who
\nanswer to a particular name. PW20 is the finger print expert.  PW21 admits to
\nhaving been beneficiary of a loan for purchase of cattle and has been treated
\nhostile.  PW22, 23, 27, 34 and 35 are the Village Administrative Officers who
\nhave issued certificates that there were no persons residing in the village
\nunder their jurisdiction who answer to particular names.  PW24 admits to having
\nduly issued the Chittas which were annexed to loan applications and has been
\ntreated hostile.  PW25 denies photographs as that of her husband but informs
\nthat her husband had gone away 27 years back and that she did not know if there
\nwere other persons in a village who answer to his name.  PW26 is the General
\nManager of the Panchayat Grama Bank whose suspicion was aroused since, for
\nmaking of six carts, the quotation of one person was shown.  PW36 is the
\nSecretary of the Eriyur Agricultural Co-operative Society and denied having
\nissued No Objection Certificates.  He informs that his signatures was obtained
\nin the course of investigation, but that the list of members belonging to the
\nSociety was not seized.  PW37 has been examined to show that he was a person who
\nwas engaged as broker for the purchase of cattle under the scheme.  Pw38 who has
\nbeen examined for a similar purpose has turned hostile.  PW39 was then a Head
\nConstable, who had taken all the thumb impressions that were forwarded to PW20,
\nthe finger print expert.  PW40 who was Deputy Superintendent of Police attached
\nto the vigilance cell, Madurai has spoken of the investigation having been
\ncarried out by one Deputy Superintendent of Police Subbaiah who was retired and
\nwho was a heart patient.  He has spoken to the bank officials acting as per the
\nrules.  He admits that the Block Development Officer had been shown as accused
\nby the Investigating Officer, but that he had been dropped from the list of
\naccused.  He also admits that the list of beneficiaries under the IRDP Scheme
\nwere with the Block Development Officer.  He is unable to deny that the entire
\nsums due under the various loans had been recovered and is unable to specify
\nwhat was the loss suffered, if any.\n<\/p>\n
\t4. DW1, who was a Manager with the Pandyan Grama Bank had spoken of the
\nloans granted, that they were so granted on the recommendation of the Block
\nDevelopment Officer, that the loans were granted as per the norms and that an
\nindividual could not avail loan under the IRDP scheme, that only after 1989, the
\naffixing of photographs on applications were made compulsory, that the
\nphotographs were affixed in the loan applications by the Block Development
\nOfficer and that the loans were granted to the Presidents of Society, who in
\nturn disbursed the money to members and that all the loans had been duly repaid,
\nbut  the accounts had been kept open with a minimal balance owing to the
\npendency of the case.\n<\/p>\n
\t5. Heard Mr.R.N.Amarnath, learned counsel for the appellant\/A1 in
\nCrl.A.268\/2001, Mr.Veerakathiravan, learned counsel for the appellant\/A2 in
\nCrl.A.290\/2001, M\/s.T.Munirathnam Nadu, learned counsel for the appellant\/A3 in
\nCrl.A.254\/2001, Mr.Thirumalairaj, Senior Counsel for the appellant\/A4 in
\nCrl.A.296\/2001, Mr.A.R.L.Sundaresan, Senior Counsel for the appellant\/A5 & A6 in
\nCrl.A.258\/2001 & 299\/2001, Mr.T.Muruganantham, learned counsel for the
\nappellant\/A7 & A8 in Crl.A.303\/2001 and also Mr.P.Rajendran, learned Government
\nAdvocate(Crl.side) appearing for the respondents.\n<\/p>\n
\t6. Certain broad features are common to all the accused\/appellants and
\nthese appeals may be disposed of on consideration thereof.  The investigating
\nofficer in the case has not been examined as a witness and this, in the
\ncircumstances of the case, has caused grave prejudice to the accused.  Though
\nPW40 says that the investigating officer who has retired was available, and that
\nhe was suffering from heart ailment, there is hardly any material to justify his
\nnon-examination.  Towards showing that certain persons in whose names loans had
\nbeen released were really non-existent persons, certificates of VAO’s  PW22, 23,
\n27, 34 and 35 have been produced.  Something more, than the mere certificate of
\nthe VAO ought to have been shown by the prosecution.  In this regard as to how
\nthe investigating officer had arrived at the satisfaction that the VAO
\ncertificates reflected the correct position could only be explained by such
\ninvestigating officer.  It is admitted by PW40 that the Block Development
\nOfficer was put up as an accused by the investigating officer. It is only the
\ninvestigating officer who could have explained why he thought it fit to include
\nthe Block Development Officer as an accused.\n<\/p>\n
\t7.  The Hon’ble Apex Court in Habeeb Mohammed v. State of Hyderabad<\/a> AIR
\n1954 SC 51, has observed as follows:\n<\/p>\n
  \t‘In this situation it seems to us that Biabani who was a top-ranking
\npolice officer present at the scene was a material witness in the case and it
\nwas the bounden duty of the prosecution to examine him, particularly when no
\nallegation was made that if produced, he would not speak the truth; and in any
\ncase, the court would have been well advised to exercise its discretionary
\npowers to examine the witness.  The witness was at the time of the trial in
\ncharge of the Police Training School and was certainly available.  In our
\nopinion, not only does an adverse inference arise against the prosecution case
\nfrom his non-production as a witness in view of illustration (g) to section 114<\/a>
\nof the Indian Evidence Act, but the circumstance of his being withheld from the
\ncourt casts a serious reflection on the fairness of the trial.’<\/p>\n
The observations would apply in the facts of the present case.\n<\/p>\n
\t8.  The observations of The Karnataka High Court in decision reported in
\n2004 Crl.LJ. 2255 also are most apt.  Paragraph 3, of such decision reads as
\nfollows :\n<\/p>\n
\t\t‘3. The serious infirmity that has been recorded by the trial court
\nis that the Investigating Officer was not examined. Some other officer, who was
\nto a limited extent dealing with this investigation, has been examined and
\ncertain reasons have been set out on behalf of the State as to why this had
\nhappened.  Since the full facts are not before us, we do not desire to make any
\ncomments with regard to the non-examination of the Investigating Officer beyond
\npointing out that the trial court was right when it recorded a finding to the
\neffect that the non examination of the Investigating Officer is fatal to the
\nprosecution.  One of the submissions canvassed on behalf of the State is that in
\nthis case the other officer was examined and therefore, if the proving of any
\nomissions or contradictions was to be done that this was feasible through the
\nofficer who has been examined and secondly what is contended is that the
\nexamination of the Investigating Officer in the majority of instances is only a
\nformality.  We are unable to accept this last submission because the
\nInvestigating Officer is the principal architect and executor of the entire
\ninvestigation.  He is a crucial witness for purposes of establishing that there
\nare omissions and contradictions but more importantly, it is always open to the
\ndefence to question the honesty and calibre of the entire process of
\ninvestigation.  It is well settled law that where an investigation is defective,
\ninsufficient or dishonest that these factors prove fatal to the prosecution.  In
\nthe given instance, the accused was totally precluded from any opportunity of
\nbeing able to establish the infirmities in the prosecution case and on this
\nground alone the order of acquittal will have to be confirmed.’<\/p>\n
\t9.  As regards A1 – A3, one Manickam who is said to have paid bribe to
\nthem had not been called as a witness.  In the above circumstance, this Court is
\nunable to ignore Exh.D3, reflecting the position that heavy burden was cast upon
\nthe persons who were involved in implementing the scheme and the same was pushed
\nthrough hastily and that the Block Development Officer was involved in the
\nprocess of identification of applicants under the Scheme. D3 was the preliminary
\nobjection raised by the 3rd accused to the charge memo issued to him.  The lower
\nCourt has failed to consider if the defence evidence may reflect the correct
\nposition in the case.\n<\/p>\n
\t10.  The report of PW-20, the Finger Print expert cannot be looked into
\nfor the reason that it is the admitted case of the prosecution that the finger
\nprints were taken by  PW-39, who assisted the Investigating Officer in the
\nconduct  of the investigation.  PW-39 at the relevant point of time was a Head
\nConstable.  In Shanmugayya & Ors. v. State, 1992 (3) Crimes p.505, a Division
\nBench of this Court has held as follows:-\n<\/p>\n
\t\t\t’31. In this context, it would be worthwhile to refer to
\ncertain provisions of the Identification of Prisoners Act<\/a> 1920 (Act No.33 of
\n1920).  The object of this Act was to authorise taking of measurements and
\nphotographs of convicts and others.  The word “measurements” has been defined
\nunder Section 2(a)<\/a> of the Act to include finger impressions and foot-print
\nimpressions and under Section 2(b)<\/a>, it is stated that ‘Police Officer’ means an
\nOfficer in charge of a police station, a police officer making an investigation
\nunder Chapter XIV of the Code of Criminal Procedure,1898 (5 of 1898) or any
\nother police officer not below the rank of Sub Inspector.  Section 3<\/a> of the Act
\nconcerns itself with taking of measurements etc., of convicted persons.  In the
\ninstant case we are not concerned with this section.  Section 4<\/a> deals with
\ntaking of measurements or photographs of non-convicted persons, Section 4<\/a> reads
\nas follows :-\n<\/p>\n
   “4. Taking of measurements of photographs               \tof non-convicted
\npersons,-\n<\/p>\n
\tAny person –\t\t\t\t(a) who has been arrested –\n<\/p>\n
(i)Under section 55<\/a> of the Code of Criminal Procedure, 1898, or under section 4
\nof the Bombay Beggars Act, 1945;\n<\/p>\n
(ii)In connection with an offence punishable under Section 122 of the Bombay
\nPolice Act, 1951, or under section 6<\/a> or 9 of the Bombay Beggars Act, 1945, or in
\nconnection with an offence punishable with rigorous imprisonment for a term of
\none year or upwards, or<\/p>\n
(b) in respect of whom a direction or order under      section 55<\/a> or 56 of the
\nBombay Police Act, 1951, or under sub section (1) or (2) of section 23 of the
\nBombay Beggars Act, 1945, or under Section 2 of the Bombay Public Security
\nMeasures Act, 1947, has been made, shall, if so required by a Police Officer,
\nallow his measurements or photograph to be taken in the prescribed manner.”<\/p>\n
\tA look at Section 4<\/a> of the Act shows, that any person who had been
\narrested in connection with an offence punishable with rigorous imprisonment for
\na term of one year or upwards (as far it is relevant to this case) shall, if so
\nrequired by a police Officer allow his measurements or photograph to be taken in
\nthe prescribed manner.\n<\/p>\n
\t\t\t32. Section 4<\/a> refers to taking of measurements etc. of
\nhabitual offenders against whom restriction order is made. We are not concerned
\nwith this section in the present appeal. Section 5<\/a> deals with the power of a
\nMagistrate to order a person to be measured or photographed. Under this Section
\nif a Magistrate is satisfied that, for  the purpose of any investigation or
\nproceeding under the Code<\/a> of Criminal Procedure, 1898, it is expedient to direct
\nany person to allow his measurements or photograph to be taken, he may make an
\norder to that effect and in that case the person to whom the order relates shall
\nbe produced or shall attend at the time and place specified in the order and
\nshall allow his measurements or photograph to be taken, as the case may be, by a
\nPolice Officer. Such an order can be made only by a Magistrate of First Class
\nand further unless the person has at some time been arrested in connection with
\nsuch investigation or proceeding. The Act<\/a> does not say, that Section 5<\/a> refers to
\nthe prescribed manner spelt out in Section 4<\/a> of the Act. The power of the
\nMagistrate under Section 5<\/a> of the Act does not seem to affect the power of a
\nPolice Officer, to take finger prints or photographs of the persons arrested in
\nconnection with, the various facets referred to under Section 4<\/a> of the Act.\n<\/p>\n
\t\t\t33.  Section 6<\/a> takes in its fold permissibility of use of
\nlawful means necessary to secure measurements or photographs when resistance is
\noffered or refusal is indicated by the person concerned. Such resistance or
\nrefusal, according to Section 6<\/a> of the Act shall be deemed to be an offence
\npunishable under Section 186<\/a> of the Indian Penal Code. We are not concerned with
\nSection 7<\/a> of the Act.\n<\/p>\n
\t\t\t34. Section 8<\/a> confers powers on the State Government to make
\nrules for the purpose of carrying into effect the provisions of this Act. It was
\nstated by the learned Public Prosecutor, that the State of Tamil Nadu had not
\nframed any rules for the purpose of carrying into effect the provisions of the
\nAct. After careful consideration of Sections 4<\/a> and 5<\/a> of the Act, we are unable
\nto agree with Mr.N.Dinakar, that invariably during investigation a person
\narrested must be taken before a Magistrate and orders obtained  before the
\nfinger prints of such persons could be taken by a Police Officer. Sections 4<\/a> and
\n5<\/a> operate in different fields and obviously if the State Government had made any
\nrules for the purpose of carrying into effect the provisions of this Act, the
\nInvestigating Officer, ought to have followed such rules which would fall within
\nthe ambit of ”prescribed manner” contemplated under Section 4<\/a> of the Act. If
\nthe State Government has not made any rules under the Act, it will be the duty
\nof the Investigating  Officer, to follow Police Standing Order 836. Police
\nStanding Orders are in the nature of instructions given, to be followed by the
\nPolice force. Police Standing Order 836 (3) (a) defines ”finger prints” as
\nincluding prints of thumb and are either ‘rolled’ or ‘plain’. P.S.O.836(3) (f)
\ndefines ‘proficient’ to be an Officer, who has been declared by a Superintendent
\nof Police or in the City of Madras by the Commissioner of Police, to be
\nqualified to take clear and well-rolled impressions. The method of taking finger
\nprints with reference to appliances, forms part of P.S.O. 836 (4) (a). P.S.O.
\n836(4) (d) states that prints should invariably be taken on the authorised
\nFinger-Print Slip (Form No.141). It also states, that the headings of the slip
\nare self-explanatory.\n<\/p>\n
\t\t\t35.  If Form No.141 had been used in the instant case, the
\nvarious infirmities we have pointed would in all possibility, not have occurred
\nat all.\n<\/p>\n
\t\t\t  36. P.S.O. 836(4)(k)
\n     reads as follows:-\n<\/p>\n
” Finger impressions shall be taken only by officers declared by a
\nSuperintendent or, in the City of Madras, by the Commissioner of Police, to be
\nqualified to take clear and well-rolled impressions.”<\/p>\n
           None of the provisions of Police Standing Order 836 had been followed
\nby the investigating agency. Of course, it is possible to argue that Police
\nStanding Orders do not have statutory force and therefore non-following of the
\nStanding Order cannot be held in favour of the appellants. Even if the
\nprovisions of the Police Standing Orders had not been complied with and if the
\nobtaining of finger prints from the appellants in the manner spoken to by C.Ws.
\n1 and 2, did inspire confidence, we would have still to consider if non-
\nfollowing of the procedure of the Police Standing Orders, was only irregular,
\nwhich did not affect the fact of finger print impressions having been obtained
\nby C.W.1 in the presence of C.W.2, claimed by the former.\n<\/p>\n
        \tWe have already pointed out several infirmities, which taint the
\nwhole process of obtaining of finger print impressions and probably less said it
\nwould be better for the prosecution. We think it necessary that the State
\nGovernment must make rules under Section 8<\/a> of the Identification of Prisoners
\nAct 1920 for the purpose of carrying into effect the provisions of this Act.
\nSome of the State Governments have made rules. A proper procedure in obtaining
\nfinger prints must be followed for otherwise, the sanctity of scientific
\nevidence not only gets obliterated but also becomes an exercise in futility”.\n<\/p>\n
\t 11.  Again in case of K.Dhanasekaran v. State<\/a>, 2003 (1) CTC 223, this
\nHon’ble Court has, after dealing with the aspect of obtaining finger prints,
\nalso dealt with the question of arriving at a finding of conviction, on the
\nstrength of the expert evidence.  This Court has this to say;\n<\/p>\n
\t\t\t” 9.  It is also argued that in the absence of any evidence to
\nshow that the specimen signatures were obtained as per the procedure laid down
\nunder Section 5<\/a> of the Identification of Prisoners Act, it is not safe to impose
\nconviction merely on the basis of expert’s opinion.  In our case, I have already
\nreferred to the fact that the evidence of Pws.1,3 and 4 are not reliable for the
\nreasons stated above; accordingly in the absence of compliance of Section 5<\/a> of
\nthe Identification of Prisoners Act, now I shall consider whether the conviction
\ncan be based only on the expert’s (P.W.8’s) evidence.  The following conclusion
\nof the Supreme Court in S.Gopal Reddy v. State of A.P<\/a>. 1996 SCC (Crl.) 792 is
\npressed into service: (para 28)
\n“28. Thus, the evidence of PW.3 is not definite and cannot be said to be of
\nclinching nature to connect the appellant with the disputed letters. The
\nevidence of an expert is a rather weak type of evidence and the courts do not
\ngenerally consider it as offering ‘conclusive’ proof and therefore safe to rely
\nupon the same without seeking independent and reliable corroboration.  In Magan
\nBihari Lal v.State of Punjab<\/a>, 1977 (2) SCC 210: 1977 SCC (Cri.) 313, while
\ndealing with the evidence of a handwriting expert, this Court opined : (SCC
\npp.213-14, para-7)
\n\t“… We think it would be extremely hazardous to condemn the appellant
\nmerely on the strength of opinion evidence of a handwriting expert. It is now
\nwell settled that expert opinion must always be received with great caution and
\nperhaps none so with more caution than the opinion of a handwriting expert.
\nThere is a profusion of precedential authority which holds that it is unsafe to
\nbase a conviction solely on expert opinion without substantial corroboration.
\nThis rule has been universally acted upon and it has almost become a rule of
\nlaw. It was held by this Court in Ram Chandra v. State of U.P<\/a>., AIR 1957 SC 381
\n: 1957 Crl LJ 559 that it is unsafe to treat expert handwriting opinion as
\nsufficient basis for conviction, but is may be relied upon when supported by
\nother items of internal and external evidence. This Court again pointed out in
\nIshwari Prasad Misra v. Mohdn. Isa, AIR 1963 SC 1728 : 1963 BLJR 226 that expert
\nevidence of handwriting can never be conclusive because it is, after all,
\nopinion evidence, and this view was reiterated in Shashi Kumar Banerjee v.
\nSubodh Kumar Banerjee<\/a>, AIR 1964 SC 529 where it was pointed out by this Court
\nthat expert’s evidence as to handwriting being opinion evidence can rarely, if
\never, take the place of substantive evidence and before acting on such evidence,
\nit would be desirable to consider whether it is corroborated either by clear
\ndirect evidence or by circumstantial evidence. This Court had again occasion to
\nconsider the evidentiary value of expert opinion in regard to handwriting in
\nFakruddin v. State of M.P<\/a>., AIR 1967 SC 1326 : 1967 (2) Andh LT 38 and it
\nuttered a note of caution pointing out that it would be risky to found a
\nconviction solely on the evidence of a handwriting expert and before acting upon
\nsuch evidence, the court must always try to see whether it is corroborated by
\nother evidence,direct or circumstantial.”\n<\/p>\n
It is clear from the above judgment that it is not desirable to impose
\nconviction solely on the evidence of expert without corroborative evidence
\neither direct or circumstantial.”\n<\/p>\n
Thus it would be seen that the report of the Finger Print expert does not carry
\nforward the prosecution case.\n<\/p>\n
\t12.  Whatever be the other merits in the prosecution case, the same get
\nobliterated owing to the above stated glaring defects.  Given the same, the
\nprosecution case would fail and consequently, these appeals shall stands
\nallowed. Fine amount paid if any, shall be refunded to the appellants.\n<\/p>\n
jvm\/avr<\/p>\n
To<\/p>\n
1.Deputy Superintendent of Police
\n   Vigilance and Anti-Corruption Wing,
\n   Sivaganga.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Swamidurai vs State By on 25 February, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25\/02\/2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD)254of 2001 Crl.A.(MD)258 of 2001 Crl.A.(MD)268 of 2001 Crl.A.(MD)290 of2001 Crl.A.(MD)296 of 2001 Crl.A.(MD)299 of 2001 and Crl.A.(MD)303 of 2001 1.Swamidurai .. Appellant in Crl.A.254\/2001-A3 2.P.Meyyappan .. Appellant in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-251157","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSwamidurai vs State By on 25 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/swamidurai-vs-state-by-on-25-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Swamidurai vs State By on 25 February, 2010 - 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