STATE OF KARNATAKA Vs. G M SUMANABAI

JUDGEMENT

(1.) CRL. A. No. 674/1997 is by the State for enhancement of sentence imposed on accused 1 to 3. Whereas Crl. R. P. No. 1231/2003 is by accused 1 and 2 assailing the Judgement passed by the learned Prl. Sessions Judge, Shimoga, in Crl. A. No. 47/1997, dated 31-10-2003 confirming the conviction and sentence passed in c. C. No. 476/1993 by the learned J. M. F. C. , Shikaripura, dated 19-4-1997.

(2.) THE case of the prosecution in brief is as follows : The police, Shikaripura, charge-sheeted accused 1 to 3 for the offence u/ss. 120-B, 419, 420, 466, 468 and 2011. P. C. , alleging that accused 1- Sumana Bai is the daughter of accused 2-G. S. Mangalore, who are "havyak Brahmins" by community, with the assistance of accused 3-Chandrashekar obtained false transfer certificate-Ex. P. 12 from the school and that accused 2-G. S. Mangalore sworn to a false affidavit and produced to the Tahsildar, Shikaripura, and obtained a false caste certificate in favour of accused 1 describing accused 1 belongs to "maleru" caste, which is classified as scheduled Tribe. The learned J. M. F. C-, Shikaripura, secured the presence of accused 1 to 3 and framed charges for the offences under Sections 120-B, 181, 419, 177, 446, 468, 471, 420 and 201 of I. " P. C. They pleaded not guilty and claimed to be tried. The prosecution examined P. Ws. 1 to 21 and marked exs. PI to P49. The statements of the accused were recorded under Section 313 of cr P C. The defence of accused 1 and 3 is of total denial of the prosecution case. Whereas, accused 2 admitted the fact of swearing an affidavit and denied the prosecution case. But, they did not choose to lead any evidence. The learned J. M. F. C. for the reasons recorded in his judgment, convicted accused 1 to 3 for the offences under Sections 120-B, 181. 177, 466, 471 and 201 I. P. C. , and acquitted for the offences under Sections 419, 420 and 468 I. P. C. Accused 1 to 3 are sentenced to pay a fine of Rs. 500-00 each, in default to undergo s. I. for a period of 2 months under Section 120-B, I. P. C. Accused 1 is further convicted for the offences under Section 177 and 471 i. P. C. , sentencing to pay a fine of Rs. 1,000-00 in respect of each offence, in default to undergo S. I. for a period of 5 months. Accused 2 is further convicted for the offence under Section 181 I. P. C. , sentencing to undergo S. I. till rising of the Court and to pay a fine of Rs. 500-00, in default to undergo S. I. for a period of 2 months. Accused 3 is further convicted for the offences under Section 466 and 201, I. P. C. , sentencing him to undergo S. I. till rising of the court and to pay a fine of Rs. 1,000-00 in respect of each offence, in default to undergo s. I. for a period of 5 months. Accused 3-Chandrashekar assailing the judgment of conviction in C. C. No. 476/ 1993 preferred Crl. A. 27/1997. Whereas accused 1 and 2 preferred Crl. A. 47/1997. The State being dissatisfied with the quantum of sentence preferred Crl. A. No. 674/ 1997 before this Court for enhancement of sentence. Though accused 3 as well as accused 1 and 2 filed appeals separately as against the judgment passed in C. C. No. 476/1993 by the learned J. M. F. C. , the learned Prl. Sessions Judge instead of disposing of both the appeals by a common Judgment, that for the reasons best known, disposed of both the criminal appeals by separate Judgments, in which Crl. A. No. 27/1997 of accused 3-Chandrashekar was allowed by setting aside the conviction and sentence passed against him. Whereas, Crl. A. No. 47/1997 of accused 1 and 2 was dismissed by confirming the conviction and sentence passed by the learned J. M. F. C. , in C. C. No. 476/ 1993. Being aggrieved of the Judgment of dismissal passed by the learned Prl. Sessions judge in Crl. A. No. 47/1997, accused 1 and 2 have preferred Crl. R. P. No. 1231/2003 questioning the legality of the sentence. That as the appeal and the criminal revision petition arise out of the Judgment passed in C. C. No. 476/1993 by the learned j. M. F. C, both the matters were heard together and taken up for disposal. In view of the fact that accused 3-Chandrashekar was acquitted by the learned prl. Sessions Judge in Crl. A. No. 27/1997, the State appeal as well as the criminal revision petition are confined only in respect of accused 1 and 2. Accused 1-G. M. Sumana Bai is the daughter of accused 2-G. S. Mangalore. Accused 2 was working as a Teacher in the government High School, M. L. Halli, Sagar taluk, Shimoga, at the relevant point of time and also working as a Teacher in various schools, whereas accused 3-K. Chandrashekar was working as clerk in the government High School, M. L. Halli, Sagar taluk, Shimoga. While accused 1 was studying in the Regional College of Education, mysore, she came in contact with one M. N. Prahlad, the son-in-law of P. W. 1-T. A. Shamashastry, who had married his daughter S. N. Manorama on 13-2-1981 lived upto 16-6-1990. The said M. N. Prahlad wanted to give a divorce so as to marry accused 1 -G. M. Sumana Bai. It is at that point of time p. W. 1 -Shamashastry verified the school records; and found that accused 1-G. M. Sumana Bai had described her caste as "maleru" coming within the group of Scheduled Tribes though actually she belongs to "havyak Brahmin" community. P. W. 1 after coming to know about the false declaration given by accused I, lodged a complaint as per Ex. P1 with the Civil Rights Enforcement cell, Bangalore. The complaint was forwarded to P. W. 19-H. M. Mayanna, S. I. , for investigation and a case was registered by the Shikaripura Police in Crime No. 77/1992 against all the accused persons for the offence under Section 419 and 420 of I. P. C. and forwarded the file. P. W. 19- H. M. Mayanna,. S. I. , of Civil Rights Enforcement cell took up further investigation, collected various school certificates, transfer certificates as per Exs. P11 andp12 as well as caste certificate from the Tahsildar, Shikaripura, as per Ex. P23. The investigation disclosed that accused 1 and 2 though belong to "havyak Brahmin" community, for the purpose of claiming the benefit under the reserved Scheduled tribes category, accused 2 falsely swore an affidavit that accused 1 belongs to "maleru" community. Accused 2 produced the said affidavit before the tahsildar, Shikaripura, and obtained a false caste certificate as per Ex. P23 as Schedule tribe. Accused 1 made use of the caste certificate as if it is a genuine and took admission to the Pre-University Courses and for degree courses and that she availed scholarship benefit of Rs. 399-99 during the year 1986-87.

(3.) LEARNED counsel Sri K. N. Mahabaleshwara Rao for accused 1 and 2 submitted that the prosecution has failed to prove the forgery as defined under Section 465 of I. P. C. When the ingredients of section 471 of I. P. C. , are not made out, the conviction of accused 1 by the trial Court for the offence under Section 471 of I. P. C. is not sustainable. Secondly contended that accused 2 has sworn to an affidavit stating that he belongs to "maleru" community, which is an out caste of Brahmins, is one declared as Scheduled Tribe during the year 1977 itself. Therefore, the caste certificate ex. P23 issued by the Tahsildar, shikaripura, is a valid one. Therefore, contended that the prosecution has failed to bring home the guilt of the accused. Further contended that the findings of the learned Prl. Sessions Judge is erroneous and not based on facts, therefore, prayed to allow the revision petition and to dismiss the state appeal.