IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE FIRST DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 873 of 2005 Between: D.Lakshmi Bai (A-1) & Anr. … Petitioners V/s. State of Andhra Pradesh, Represented by its Public Prosecutor, High Court of A.P. Hyderabad … Respondent Counsel for the Petitioner : Sri C. Praveen Kumar Counsel for the Respondent : Addl. Public Prosecutor THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION No. 873 OF 2005 O R D E R : This Criminal Revision is directed against the conviction and sentence passed by the IV-Additional Metropolitan Sessions Judge, Hyderabad, in Criminal Appeal No. 92 of 2004 dated 10-6- 2005, confirming the conviction and sentence recorded by the IX Metropolitan Magistrate, Hyderabad in CC.No. 421 of 2000, dated 15- 3-2004. 2. The brief facts of the case are as follows: The Inspector of Police, CID, City Zone, Hyderabad filed a charge sheet against A-1 to A-4 wherein it was mentioned that A-1 is the second wife of A-2 who was working as Assistant Cook at Osmania General Hospital, Hyderabad. A-3 was working as Kamati in Osmania General Hospital and was a Union Leader. A-4 is the daughter of A-2 born through his first wife. PW-2 Pushpa is the daughter of one Laxmaiah, who worked as Excise Constable in the Office of the Assistant Commissioner of Distilleries, Narayanguda, Hyderabad. Laxmaiah died on 05-8-1988 even before attaining the age of superannuation. Laxmaiah’s wife Venkatamma also died. PW- 2 applied to the Excise Superintendent, Hyderabad for a job on compassionate grounds and filed an application under Ex.P-12. As there was no vacancy in the unit of the Excise Superintendent, he forwarded the application to the District Collector. The District Revenue Officer, PW-15 then issued proceedings as per Ex.P3 to the Superintendent, Osmania General Hospital requesting them to appoint PW-2 in the post of female sweeper. The Superintendent, Osmania General Hospital appointed PW-2 vide orders under Ex.P4. PW-2 upon receiving Ex.P4 some how did not wish to join the post of Sweeper in the Osmania General Hospital. Taking advantage of this situation, A-1 to A-4 with a common intention of availing the post of Sweeper and give it to A-1. A-2 made use of his daughter Sujatha-A4 who was of the age group of PW-2 with the help of A-3 Union Leader in the Osmania General Hospital produced Sujatha before PW-9 at Osmania General Hospital, Hyderabad and collected Ex.P3 appointment order of PW-2. Thereafter, A-4 impersonated PW-2 and collected Ex.P4 orders acknowledging the same by forging the signatures of PW-2. A-4 then gave his joining report Ex.P5 showing as if she was PW-2. A-4 then handed over the appointment order to A-2 who in turn handed over it over to A-1. Then A-1 joined the post of Sweeper on 14-2-1996 in the place of PW-2 and attended to the duties impersonating herself as PW-2 and receiving the salaries by subscribing forged signatures in the name of PW-2 in the a quittance register . A-2 who is an employee of the Osmania General Hospital identified A-1 as PW-2 for payment of the salary. While so, PW-2 sent a representation to the Collector alleging that A-1 was working in her place. Thereupon as desired by the District Collector, the then Superintendent of Osmania General Hospital, Hyderabad PW-1 made an enquiry and confirmed that A-1 is not PW-2 who was appointed to work as Sweeper and further she gave a report to the Police as per Ex.P1. The specimen writings of A- 1, A-2 and A-4 obtained and sent to the handwriting expert. The handwriting expert opined that the handwritings examined by him were forged and after completion of investigation, a charge was laid against the accused. 2. On appearance of the accused, the learned Magistrate complied with the provisions of Section 207 Cr.P.C. Thereafter, examined the accused under section 239 Cr.P.C. alleging the substance of accusation. The accused denied the same. Charge under section 409, 419, 420 and 471 of IPC were framed, read over and explained to them, for which all the accused pleaded not guilty and claimed to be tried. 3. To substantiate its case, the prosecution examined PWs 1 to 18 and marked Exs.P-1 to P-71. On behalf of the accused no oral evidence was adduced but marked Ex.D-1. On appreciation of oral and documentary evidence placed on record, the learned Magistrate found the A-1 to A-4 guilty for the offence under section 420 read with section 34 IPC and sentenced them to undergo Rigorous Imprisonment for a period of three years each and to pay a fine of Rs.2000/- each for the said offences and in default, A-1 to A-4 shall further suffer Simple Imprisonment for a period of three months. Further A-1 to A-4 sentenced to undergo Rigorous Imprisonment for a period of three years each and to pay a fine of Rs.2000/- each for the offence under section 409 read with section 34 of IPC, in default to undergo Simple Imprisonment for a period of three months. Further A- 1 to A-4 sentenced to undergo Rigorous Imprisonment for a period of three years each and to pay a fine of Rs.2000/- each for the offence under section 468 read with section 34 IPC, in default A-1 to A-4 shall undergo Simple Imprisonment for three months each. Further A-1 to A-4 are sentenced to undergo Rigorous Imprisonment for a period of three years each for the offence under section 419 read with section 34 IPC. Further A-1 to A-4 are sentenced to undergo Rigorous Imprisonment for a period of three years each for the offence under section 471 read with section 34 IPC and directed that all the sentences shall run concurrently. On appeal, the learned IV Additional Metropolitan Sessions Judge, Hyderabad, modified and set aside the conviction and sentence recorded by the trial court in respect of A-3 and A-4. But however, the conviction and sentence recorded by the trial court against A-1 and A-2 is confirmed. Challenging the same, the present Criminal Revision is filed by A-1 and A-2. 4. At the hearing, the learned counsel for the petitioners submitted that admitting the entire case of the prosecution, the offence under section 409 of IPC is not attracted in view of the fact that there is no breach of trust. As far as the offence under section 468 and 471 of IPC are concerned, it is not the case of the prosecution that the petitioners herein forged any document except the fact that A-1 signed in acquittance register while getting the salary as Pushpa. In any event admitting the entire facts of the case, the offence under section 417 of IPC alone attracts. 5. This Court perused the entire record and also the oral and documentary evidence placed on record. It is evident from the record that the petitioners herein being husband and wife and the second petitioner being serving in the same hospital, due to the inducement of Union Leader who is arrayed as accused was acquitted by the trial court and the present petitioner who used to work in the hospital as sweeper. The entire reading of the evidence clearly discloses the fact that due to inducement of A-2, the petitioner A-1, who has received salary for a period of 1 ½ years by impersonating himself as Puspa daughter of Laxmaiah. The learned Sessions Judge and trial court convicted the accused on the ground that the petitioner has taken a stand that even the first petitioner as Pushpa and tried to establish that she is the daughter of late Laxmaiah and also they wanted to ascertain that she is the Pushpa in the trial court. The learned Sessions Judge has given reasoning in para No.17 of his judgment, which reads as hereunder : “There is sufficient evidence placed on record by the prosecution. That apart the Hon’ble Supreme Court in a decision reported in 1999 (6) SCC 410 clearly held that “if on facts the defence plea is held to be false, then the false explanation given by the accused provide the missing link in the chain of circumstances. It has been suggested to PW-2 that she is not the daughter of K.Laxmaiah and that Ex.P12 application was given by A- 1. It was also suggested that Pushpa is known as Laxmi Bai i.e., A-1. It is crystal clear that A-1 still justifies to be G.Pushpa who was given the job on compassionate grounds as the daughter of late Laxmaiah, who worked in the Excise Department. Though it has been contended that PW-2 and for that matter the other witnesses did not establish that PW-2 is the daughter of late Laxmaiah. A-1 also failed to establisht hat she is known as G.Pushpa and that she has given an application to the Excise Superintendent seeking job of compassionate ground as in Ex.P12, be that as it may” . 6. This Court is of the view that in a criminal case, it is the duty of the prosecution to prove the case on the basis of allegations by adducing the evidence. Whatever the defence taken by the accused and whatever the cross-examination on behalf of the witnesses cannot be a ground to convict a person merely because of the fact that the petitioners herein tried to establish that she is Pushpa daughter of Laxmaiah, who is entitled to be a Government servant on the basis of compassionate ground. But that cannot be a ground to convict a person and further on perusal of the entire records except the allegation that the petitioner A-1, who impersonated herself as Pushpa due to inducement of A-2, who received salary for a period of 1 ½ years. The said act of the petitioner due to the inducement of the second petitioner attracts the offence under section 417 of IPC by which they committed the offence under section 419 of IPC. Hence, this Court is of the view that in the present set of given facts and circumstances and the evidence adduced by the prosecution, the petitioners can only be convicted under section 419 of IPC. Accordingly the present petitioner A-1 is convicted for the offence under section 417 and 419 of IPC. The second petitioner is convicted for the offence under section 417 and 419 read with section 109 of IPC. 7. At the hearing, the learned counsel for the petitioners confine his argument only with regard to the quantum of sentence and prayed to take a lenient view. 8. Considering the facts and circumstances, I do not see any reason to interfere with the conviction recorded by the learned Sessions Judge, hence the same is confirmed, but however, taking into consideration the submissions made by the learned counsel for the petitioners and also the fact that the matter pertains to the year 2000, this Court is inclined to take a lenient view. Accordingly the sentence of imprisonment inflicted by the learned Sessions Judge is modified to that of the period already undergone by the petitioners. However, the petitioners are directed to pay a fine of Rs.5,000/- (Rs. Five thousand only) each within a period of six weeks from the date of receipt of a copy of this order, apart from the fine which they already paid in the trial court. 9. With the above modification in the sentence, the Criminal Revision is disposed of. ______________________ JUSTICE RAJA ELANGO. 01-10-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 873 OF 2005 Circulation Entry No. 4 6 Date: 01-10-2010 Computer No. 43 Court Master: I s L