HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.Nos. 402, 386, 307 and 342 of 2004 Date: 11-06-2010 Between: Syed Khader ………Appellant And State CBI, Hyderabad. …………. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.Nos. 402, 386, 307 and 342 of 2004 COMMON JUDGMENT: These Appeals are directed against the Judgment, dated 30-01- 2004 in C.C.No.4 of 2000 passed by the Special Judge for C.B.I. Cases, Hyderabad, whereby and whereunder Appellants 1 to 4, who are A-1 to A-4 before the trial Court (and hereinafter referred as A-1 to A-4) were convicted for the offence under Section 420 of IPC and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for three months each. They were also convicted for the offence under Section 471 of IPC and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for three months each. They were also convicted for the offence under Section 120-B of IPC and sentenced to undergo simple imprisonment for four months each. A-1 to A-3 were also convicted for the offence under Section 13(2) read with 13 (1)(d) of the Act and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months each. They were found not guilty of the charge under Section 468 of IPC and were acquitted of the same. All the substantive sentences were ordered to run concurrently. 2. Since all the Appeals arise out of the same Judgment, they are clubbed and being disposed of by this common order. 3. The brief facts of the case are as follows. A-1 was working as Senior Clerk in the office of the senior D.P.O., Sanchalan Bhavan, Secunderabad Division, South Central Railway, Secunderabad. A-2 was working as Grade-III Fitter in Electrical Loco Shed, South Central Railway, Secunderabad. A-3 was working as Head Clerk (personnel) in the office of the Section Engineer (P.Way), Secunderabad, and subsequently transferred to the office of the Section Engineer (P.Way), Aler. A-4 was working as Gangman attached to the Head Clerk (Personnel) in the office of the Section Engineer (P.Way), South Central Railway, Vikarabad. The charges framed against the Accused are as follows: “CHARGE NO.1: That A1 of you while working as Senior Clerk in the office of Sr.D.P.O. S.C. Railway, Secunderabad, A2 of you employed as Grade-III Fitter in Electrical Loco Shed, S.C.R. Secunderabad, A3 of you as Head Clerk (Personnel) in the office of Section Engineer (P.Way) Secunderabad and A4 of you as Gangaman, attached to the Head Clerk (personnel) in the office of Section Engineer (P.Way), S.C. Railway, Vikarabad, have entered into a criminal conspiracy to cheat S.C. Railway by accepting illegal gratification to a tune of Rs.20,000/- to Rs.50,000/- in the matter of appointment of 5 members as Gangman and in pursuance of said conspiracy, you have prepared Transfer orders, Relieving orders, Service Registers, Muster Rolls, Last Pay particulars etc., all documents related to transfers through fraudulent means and thereby committed an offence punishable U/S. 120-B r/w 420 IPC and within my cognizance. CHARGE NO.2: That A1 to A4 of you while working as mentioned in Charge No.1, prepared and created false and forged transfer orders, relieving orders, service registers, muster rolls, last pay particulars etc., by fraudulent means for the purpose of cheating S.C. Railway in the matter of appointment of 5 members as Gangman in S.C. Railway and thereby committed an offence punishable U/S. 468 IPC and within my cognizance. CHARGE NO.3: That A1 to A4 of you while working as mentioned in Charge No.1 after creating the forged documents as narrated under Charge No.2, used such documents as genuine in the matter of appointment of 5 persons as Gangman in S.C. Railway and thereby committed an offence punishable U/S. 471 IPC and within my cognizance. CHARGE NO.4: That A1 to A3 of you while working in the capacity as mentioned in Charge No.1, abused your official positions as public servants and got illegal gratifications to a tune of Rs.20,000/- to Rs.50,000/- from 5 persons and without public interest by creating false and forged documents as narrated above in the matter of appointment of 5 persons as Gangman in S.C. Railway and thereby committed an offence punishable U/S. 13 (2) r/w 13(1)(d) (i) & (iii) of P.C. Act, 1988 and within my cognizance.” Thus the sum and substance of the charges levelled against the Accused is that they have accepted illegal gratification to a tune of Rs.20,000/- to Rs.50,000/- from five persons i.e., PWs.28 and 30 to 33, and prepared transfer orders, relieving orders, service registers, muster rolls, last pay particulars etc., and used them as genuine documents. Since all the Accused denied the charge levelled against them, the prosecution, in order to prove its case, examined PWs.1 to 37 and got marked Exs.P-1 to P-49. On behalf of the Accused, none were examined and no documents were marked. 4. The learned Special Judge observed that the evidence of PWs.28 and 30 to 33 requires corroboration since they have to be treated as accomplice witnesses and came to the conclusion that their evidence is corroborated by the evidence of the other official witnesses and handwriting expert, and thus convicted and sentenced all the Accused as referred above. 5. Sri K. Anjaneyulu, the learned counsel for A-1 and A-2, submitted that the evidence of accomplice witnesses i.e., PWs.28 and 30 to 33, cannot be accepted and there is no corroboration to their evidence. It is further submitted that PWs.1 to 15 are official witnesses and their evidence simply shows that the transfer orders, relieving orders etc., are not genuine documents and they were not issued from the concerned departments. It is also submitted that the learned Special Judge himself came to the conclusion that there is no evidence to say that the Accused forged the documents and therefore, acquitted them for the charge under Section 468 of IPC. His further submission is that admittedly the admitted signatures were not taken by the Court and there is no evidence on record to say that from proper custody the documents were taken, and in the absence of any official witnesses to say that these are the admitted signatures, the evidence of the Investigating Officer that he secured the admitted signatures and sent them to the handwriting expert, and the evidence of the handwriting expert that the disputed signatures tallied with the admitted signatures, are not useful to the prosecution and that the procedure required to be followed has not been followed by the Investigating Officer in this case. He has also referred to the evidence of the expert, who deposed that it was not possible for him to express any opinion on the writings marked as Q5 to Q-7, Q12, Q76/1, Q93, Q104 to Q108, Q111, Q116, Q117, Q133 to Q139 and Q153 to Q164, on the basis of the material supplied for comparison, and further admitted that the specimen handwritings supplied to CBI are not taken in his presence and that he cannot identify the persons whose names he referred and who gave specimen writings to CBI, and similarly with regard to the admitted writings, he deposed that no one admitted before him that they are their writings. It is also his submission that some of the official witnesses, who claim to have identified the handwritings of the Accused, were not competent witnesses and they have no acquaintance with the handwritings of the Accused. It is also his submission that the contention of the prosecution that the service register or some other documents contain the handwritings of the Accused, even if accepted for the sake of argument, as true that itself is not sufficient to connect the Accused with the crime because there are several other handwritings of other officials, who were believing that transfer orders and relieving orders as genuine, acted upon them. It is also his submission that merely because the Accused have obliged their superiors and written certain documents, that will not connect the Accused with the Crime. Therefore, according to him, even if there is some evidence that the disputed handwritings are that of the Accused, that will not help the prosecution. It is also his contention that the evidence of the expert is an advisory character and in support of his contention, he has relied on the decision in the case STATE OF H.P., v. JAI LAL AND OTHERS [1]. It is his further submission that once it is held that the prosecution failed to prove how the Investigating Officer secured the admitted signatures or specimen signatures, the link is broken and there is nothing on record to say that the Accused have any nexus with the alleged fake transfer orders, relieving orders. 6. Per contra, Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for CBI, submits that there was a big conspiracy among the Accused in railway department and that they fabricated the appointment orders, transfer orders, relieving orders etc., and basing on those documents, PWs.28 and 30 to 33 were taken into service and they worked for sometime and even salaries were also paid to them. He further submitted that there is other evidence against the Accused besides the evidence of the alleged accomplice witnesses to connect them with the crime. His further submission is that PW-5 categorically stated that Ex.P-10, a chit directing to admit one Sugandaraju (PW-33) on duty, and it was issued by A-3 and that it was the duty of A-3 to look after the personal matters relating to preparaton of musters, pay bills, and proposals for transfers and in case of transfer, A-3 had to put up a proposal before PW-5, but he did not place any proposals, and there is no need to disbelieve the testimony of PW-5 on this aspect. Thus, according to him, Exs.P-10 and P-12 proves that A-3 forged the documents. It is also argued that the evidence of the official witnesses clinchingly establishes that the transfer orders, relieving orders etc. were forged and the same is corroborating with the evidence of the accomplice witnesses and thus there is corroboration to the evidence of the accomplice witnesses. It is also his submission that the evidence of PW-27 proves that the entries in Ex.P-13, service register, are in the handwriting of A-1, the evidence of PW-29 proves that Exs.P-38 to P-41 are in the handwriting of A-2, the evidence of PW-5 shows that the handwriting in Ex.P-10, chit, is that of A-3, and the same is corroborated by the evidence of PW-25, who also deposed that Ex.P-14 was prepared by A-3 and the evidence of PW-23 shows that it is A-4, who brought the service registers of the accomplice witnesses and further the evidence of PW-26 proves that Ex.P-15 is in the handwriting of A-4. 7. In reply, the learned counsel for the Accused submits that out of so many handwritings, PW-27 identified the handwriting of A-1 alone and no efforts were made to identify the handwritings of the other persons in the service registers. It is also argued that there is nothing on record to show that the Accused has admitted their handwritings, which are said to be admitted handwritings, and that the procedure required to be followed under Sections 45 and 73 of the Indian Evidence Act, has not been followed. It is also argued that PW-26 has no acquaintance with the handwriting of A-4 and the admissions in his cross-examination demolish his evidence. It is further argued that merely because A-4 has brought the service register, it cannot be attributed that A-4 has any connection with those handwritings. 8. In view of the rival contentions, the points that arise for consideration are: 1. Whether there is any corroborative evidence to the evidence of PWs.28 and 30 to 33? and 2. Whether the procedure required to be followed for sending the admitted signatures or specimen signatures to the handwriting expert has been followed? 9. It is the settled legal position that the evidence of accomplice witnesses cannot be relied upon unless it is corroborated by the other evidence. Admittedly PWs.28 and 30 to 33 are accomplice witnesses. Now we have to see what is their evidence and whether there is any other legal evidence corroborating their evidence basing upon which a conviction can be safely placed. 10. PW-1, Vijai Agarwal, was working as Senior Divisional Engineer at Guntakal during the relevant period. He was coordinating incharge for Engineering Department of Secunderabad Division. He was dealing with postings and transfers of class-IV staff of Engineering Department of Secunderabad Division. He was the competent authority to consider the transfer of class-IV employees including gangmen. Exs.P-1 to P-4 are the transfer orders of gangmen. Ex.P-5 is the appointment order of two gangmen, dated 05-05-1997. Ex.P-1 is the alleged transfer orders of gangmen category for G. Srinivasulu (PW-31) and R. Ashok Kumar (PW-28) purported to have been issued by the Senior Divisional Engineer at Secunderabad Division. According to him, no such order has been issued as shown in Ex.P-1 and the signature therein is a forged one. His evidence further shows that Exs.P-2 to P-5 were not issued from the concerned office and they are all fabricated documents. He has sent Exs.P-1 to P- 5 vide letter, dated 04-08-1999 in Ex.P-6 to CBI. The case of PW-1 is that since he was working in the same department and in view of his regular correspondence with others, he has acquaintance with the signatures of the concerned officers. 11. According to PW-2, S.D. Nageswaram, he was working as Office Superintendent, Grade-II in the office of the Senior Divisional Engineer (Coordination) and dealing with the establishment matters and that Exs.P-1 to P-4 were not issued by the respective officers mentioned therein and nor the copies of those documents were marked to their department. 12. The evidence of PW-3, Jaswanth Singh Tolia, shows that he has not signed in Ex.P-1. 13. According to PW-4, S.P. Sahu, the signature on Ex.P-2 is not his signature. He sent Ex.P-9, letter, dated 05-08-1999, denying his signature on Ex.P-2. 14. The evidence of PWs.1 to 4 reveals that Exs.P-1 to P-5 are not genuine documents. The evidence of official witnesses reveal that the alleged appointment letters and transfer orders are not issued from the concerned offices and the concerned officials have not signed in those documents. 15. PW-5, D. Govindaraju, was working as Senior Section Engineer for Permanent Way (P-Way) in South Central Railway at Kachiguda, Hyderabad. According to him, there were about 500 gangmen working under him. A-3 was looking after the personal section, which deals with personal matters relating to gangmen, such as preparation of musters, pay bills, and proposals for transfers from one section to another. In case of transfer of a gangman from one Section to another, A-3 has to put up a proposal with complete documents before him. According to him, A-3 did not place any proposal in respect of the appointment or transfer of gangmen namely R. Karunakar (PW-30), P.Sugandaraju (PW-33), D.Swamy (not examined), G. Sarangapani (PW-32) and R. Ashok Kumar (PW-28). He has not issued any order or slip directing to take Sugandaraju (PW-33) on duty to his Assistant J.E. P-way, Moulali. He says that Ex.P-10 is the chit issued by A-3 directing to take Sugandaraju (PW- 33) on duty. He says that Ex.P-10 is not brought to his knowledge and A-3 never informed about Sugandaraju (PW-33). According to PW-5, if any person is transferred and reported to his section, a transfer code will be used on computer. The transfer code is 604 and if any new person joins the duty, he will be given a master code on computer with a new number. The said procedure was not followed while issuing Ex.P-10. According to him, Exs.P-1 to P-7 were not received in his office. Ex.P-11 is the letter allotting provident fund number to seven gangmen mentioned therein. According to him, the signature and the stamp on the bottom right side of Ex.P-11 is not of his office. According to him Ex.P-12, pay bill, was prepared by A-3 in due course and it bears his signature above the stamp. Ex.P-12 is a salary bill for all 500 gangmen. The service registers of gangmen were prepared by A-3. He says that the contents of the service registers pertaining to G. Srinivasulu (PW-31), R.Ashok Kumar (PW-28), R. Karunakar (PW-30), G. Sarangapani (PW-32) and D. Swamy (not examined) were not signed by him and the office stamp appearing on those registers is also not of his section. The service register of P. Sugandharaju (PW-33) was opened at Vikarabad. 16. PW-6, P.V. Sai Prasad, was working as Assistant Engineer in Vikarabad during the relevant period. According to him, Exs.P-1 to P-5 were received by his office. Ex.P-15 is the service register of P. Sugandharaju (PW-33). He says that the entry at page No.2 of Ex.P-15 does not bear his signature and that the signature above the office stamp is not his signature. According to him, A-4 worked in the office of the Section Engineer, Permanent Way, Vikarabad, during that period. 17. PW-7, Y.V. Subba Rao, was working as Section Officer in South Central Railway at Vikarabad. He says that his section received Exs.P-1 to P-5. PW-23 used to prepare the salary bills. A-4, gangman, was attached to PW-23. Ex.P-13 is the service registers of Ashok Kumar (PW-28), Sarangapani (PW-32) and D. Swamy. He signed in Ex.P-13 to the effect that those persons joined at Vikarabad basing on AEN/Vikarabad order. He says that the signatures in Ex.P- 15 at page nos.2 and 3, marked as Exs.P-56 to P-60, are not his signatures. According to him the pay particulars of Sugandaraju (PW- 33) in Ex.P-17 are not singed by him and the rubber stamp also does not belongs to their office. 18. PW-8, K. Ponnuswamy, was working as Senior Divisional Personal Officer, Secunderabad Division. He deposed that A-1 was working as Senior Clerk in his office during his tenure. His evidence shows that the appointment of G. Srinivasulu (PW-31), R. Ashok Kumar (PW-28), etc., were not dealt with by their office. 19. PW-9, B.L. Meena, was working as Junior Accounts Officer in the office of the Senior Divisional Accounts Officer, Secunderabad. He says that Exs.P-5, P-11 and P-19 are requisition memos for allotment of provident fund numbers to R. Ashok Kumar (Ex.P-5) and Srinivas (Ex.P-19). 20. PW-10, G. Suryakala, was working as Section Officer in Provident Fund Section. According to her, on the basis of Exs.P-5, P-11 and P-19, the provident fund numbers were allotted. 21. PW-11, Ravi Jedhe, was working as Accounts Assistant in Sanchalan Bhvan, Secunderabad. He was looking after the provident fund section. He has allotted provident fund numbers vide Ex.P-11 in respect of R. Karunakar (PW-30), P. Sugandaraju (PW-33), D. Swamy (not examined) and G. Sarangapani (PW-32) basing on their respective service registers. He says that normally the applications supported by service registers will be brought by the person by designation ‘Time Keeper’. One Krishna (A-3) brought the said application with Service Register. 22. PW-12, H. Ramanjaneyulu, was working as Divisional Personal Officer. He deposed that A-1 was one of the employees working in their office and he used to collect the representations from the employees and used to pursue the same with the concerned department. According to him, after approving the D.R.M., the candidates are being sent to medical examination and after passing the medical examination, they will be recruited subject to other conditions. He says that he has not issued any medical memos in this case. Ex.P-20 bears the stamp of Divisional Personal Officer, dated 02-09-1997. He says that the signature on Ex.P-20 is not his signature. 23. PW-13, B. Satyanarayana Raju, was working as Junior Engineer, Permanent way, under the control of the Section Engineer, Permanent Way, Secunderabad. A-3 was working as Head Clerk in that section. He was maintaining the service registers of gangman. A-3 used to deal with the personal matters of Gangmen. As Section Engineer, he is supposed to sign the second page of service registers. According to him, the signature in page No.2 of the service registers of G. Srinivasulu (PW-31), Ashok Kumar (PW-28), Karunakar (PW-30), Sarangapani (PW-32) and D. Swamy (not examined), is not his signature. 24. PW-14, G. Venkateswar Rao, was working as Assistant Programmer, Electronic Data Processing Centre, SCR, Secunderabad. He says that in case of gangmen, the feedback is received from the respective bill clerks/time keepers, on the basis of which pay slips are prepared. Exs.P-21 to P-28 are the pay slips of Gangmen, which show that the respective gangmen mentioned therein have received salary. 25. PW-15, K. Ramreddy, was working as Senior Medical Superintendent in Railway Hospital, Lallaguda, Secunderabad. According to him, any candidate recruited for employment has to undergo medical check up at their hospital. Dr. Saxena issued medical certificates vide Exs.P-29 to P-33 in respect of G. Srinivasulu (PW-31, R. Karunkar(PW-30) T. Jagadish, G. Sarangapani (PW-32) and S. Ramesh, respectively. He issued medical certificate in respect of P. Sugandaraju (PW-33) and Ex.P-20 is the counter foils of the medical certificate. 26. PW-17, A. Chilakaiah, was working as Senior Section Engineer in Lingampally, Railway Department. He says that it is his duty to issue medical fitness memo for the post of gangman and that he has not issued the medical fitness memos from their office in respect of G. Sarangapani (PW-32), B. Venkataswamy, E. Venkatesh and E. Mallesh. He says that Exs.P-32 and 35 to 37, medical fitness memos, were not issued from their office. 27. PW-18, K. Padmanabhan, was working as J.E.2 (P-way), Moulai, during the relevant period. He says that during his tenure, a gangman by name P. Sugandaraju (PW-33) worked under him. He received a letter signed from Sri Krishna (A-3), Head Clerk, and one mustar signed by Section incharge in respect of the appointment of Sugandaraju (PW-33). According to him, Ex.P-10 is the letter issued by A-3. 28. PW-20, V.S.R. Sharma, was working as Senior Section Engineer at Electrical Loco Shed, Lallaguda, Secunderabad. He deposed that A-2 was working with him as Fitter Grade-3. According to him, A-2 was not regular for his duties. 29. PW-23, Y. Narayana Rao, was working as Senior Clerk, P-way section in railways at Vikarabad. He deposed that while he was working at Vikarabad, Srinivasulu (PW-31), Ashok Kumar (PW- 28, Karunakar (PW-30), Sarangapani (PW-32) and D. Swamy joined as Gangmen. According to him, A-4 was assisting him in preparation of bills and also attending correspondence. A-4 brought to him only the Service Registers of the above referred employees in their office. He says that Ex.P-13 is the service register of A-4. He made entries in the service registers of the above referred five persons. He has also prepared necessary posting orders of the above five persons. 30. PW-25, K. Satya Kumar, was working as Kalasi in P-Way office at Bhoiguda. He deposed that he worked under A-3 assisting him in preparation of pay sheets, passes and administration work. He can identify the handwriting and signatures of A-3 and Ex.P- 10 is in the handwriting of A-3 and it also bears his signature. According to him, Ex.P-14 was prepared in their office by A-3. 31. PW-26, Asadullah Baig, was working as Senior Gangman at Vikarabad. He deposed that he knows A-4 and can identify his handwriting. According to him, Ex.P-15 is in the handwriting of A-4. He further deposed that he cannot identify the handwriting in Exs.P-10, P-11 and P-19. 32. Admittedly PWs.28 and 30 to 33 are the persons, who received appointment orders or transfer orders, and therefore, they have to be treated as accomplice witnesses. 33. PW-34, Amar Singh, is the handwriting expert. PW- 35, vijay Kumar Raina, is the sanctioning authority, who issued sanction proceedings. Exs.P-46 to P-48 are the sanction orders to prosecute A-1 to A-3. 34. PW-36, J. Vijaya Saradhi, is the Investigating Officer, who