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THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.519 of 2009 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure 1973) Harihar Kharasudha Patnaik ……. Appellant -Versus- The State of Orissa ……. Respondent For the Appellant : Mr. Subir Palit, Senior Advocate along with Ms. S. Sen, Advocate For the Respondent : Mr. M.S. Rizvi, ASC, Vigilance CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.03.2025 : Date of Judgment: 10.04.2025 S.S. Mishra, J. The present Criminal Appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure, 1973, challenging the Judgment and Order dated 17.11.2009 passed by the learned Special Judge (Vigilance), Jeypore, in G.R. Case No. 28 of 1995(V) corresponding to T.R. No. 81 of 2007. By the impugned judgment, the appellant, along with his co-accused, were convicted under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, as well as under Sections 467, 477-A, and 34 of the Indian Penal Code, 1860. Four persons were convicted by the impugned judgment, all of whom filed separate appeals before this Court assailing conviction and sentence passed against them. However, during pendency of appeals, three of the appellants passed away, resulting in the abatement of their respective appeals. Consequently, only the present appeal remains for adjudication. 2. The brief fact of this case is that, on 01.10.1995, the Inspector of
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Vigilance, Berhampur Squad, submitted the First Information Report (FIR) before the Superintendent of Police, Vigilance, Berhampur. In the FIR it is alleged that a vigilance inquiry had revealed irregularities in the M.E. Common Examination for the year 1994, conducted by the Board of Secondary Education, Cuttack, Orissa, in May 1994. The examination was conducted under the Chairmanship of the concerned Circle Inspector of Schools, with the District Inspector (D.I.) Page 2 of 23 of Schools supervising the evaluation of answer sheets. The answer papers of Jeypore Education District were valued under the supervision of the D.I. of Schools, Umerkote, who later prepared the result sheets. During verification, it was found that in the result sheet of Kabisurya M.E. School, U.K. Power House Colony, 15 students had originally been marked as failed. However, Gananath Joshi, the then D.I. of Schools, issued a handwritten chit to the Headmaster of Kabisurya M.E. School, instructing him to bring the result sheet on 04.07.1994. Upon submission of the result sheet, Joshi, along with other accused persons, manipulated the marks, altering the results by striking off the word “fail” and rewriting “pass” in columns 8 to 17 of the result sheet, thereby illegally declaring 15 students as passed without making any corresponding corrections in their answer papers. Further inquiry established that similar manipulations were made in the result sheets of U.G.M.E. School, Harijan Sahi, Municipal High School No.2, Chandanbada Sahi, and other schools, allowing 38 additional failed students to be declared as passed through falsification of official records. Page 3 of 23 The present appellant happened to be the Headmaster of Municipal High School No.2 at the relevant time. Based on this report, a vigilance case was registered, and during the investigation, the Vigilance Inspector examined witnesses and verified relevant documents, including the manipulated result sheets seized from the concerned schools. Specimen handwriting and signatures of the accused, including the then D.I. of Schools and attached teacher M. Prasad Rao, were collected and sent for handwriting analysis. The expert opinion confirmed the manipulations; therefore, the competent authority accorded sanction to prosecute the accused. 3. After completion of the investigation, a charge sheet was submitted against the accused persons. During course of trial, Gananath Joshi, the then D.I. of Schools, passed away, resulting in the abatement of proceedings against him. Consequently, the cases proceeded against the remaining four accused persons and accordingly after the completion of trial, they were convicted by the learned Trial Court and awarded various sentences which are under challenge. Page 4 of 23 Being aggrieved by the aforementioned Judgement and order dated 17.11.2009 of learned Special Judge, Vigilance, Jeypore, the appellant has preferred the present appeal.
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4. Heard Mr. Subir Palit, learned Senior Counsel with Ms. Subhashree Sen, learned Counsel for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel for the Vigilance Department. 5. Mr. Palit, learned Senior Counsel for the appellant contended that the appellant, who was the Headmaster of Municipal High School No. II, Chandanbada, Jeypore, was on leave from 24.05.1994 to 26.06.1994, during which one Krushna Ch. Panigrahi was in charge. During this
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period, manipulations in the result sheets of eleven failed students of 7th Board Eamnination were allegedly made at the D.I. of Schools level. Upon the appellant‟s return on 27.06.1994, the D.I. of Schools, Gananath Joshi, issued a handwritten chit, directing him to submit the result sheets on 04.07.1994, which he complied with. However, the manipulation of marks and alteration of the results of eleven students from "fail" to Page 5 of 23 "pass" was done by Gananath Joshi and others, without the appellant‟s knowledge or participation. It was further argued that the prosecution failed to establish any pre-arranged plan or prior concert between the accused persons to prove a common intention under Section 34 of IPC to commit the alleged crime. The appellant‟s mere compliance with the direction of his superior does not amount to active participation in the commission of alleged offence. The learned counsel relied on Dani Singh v. State of Bihar1, which held: “20. “Common intention” implies prearranged plan and acting in concert pursuant to the prearranged plan. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a prearranged plan and prior of Maharashtra [AIR 1963 SC 1413 : (1963) 2 Cri LJ 351] .) In Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] it has been held that common intention presupposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of (See Krishna Govind Patil v. State concert. 1 (2004) 13 SCC 203 Page 6 of 23 the case totality of in hand. The justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Maqsoodan v. State of U.P. [(1983) 1 SCC 218 : 1983 SCC (Cri) 176 : AIR 1983 SC 126] it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Sarma v. State of Assam [(1977) 4 SCC 396 : 1977 SCC (Cri) 602 : AIR 1977 SC 2252] it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of design is proved against him. (See Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12] ) In the Oxford English Dictionary, the word “furtherance” is defined as “action of helping forward”. Adopting this definition, Russell says that “it indicates some kind of aid or assistance producing an effect in future” and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russell on Crime, 12th Edn., Vol. I, pp.487 and 488.) In Shankarlal Kacharabhai v. State of Gujarat [AIR 1965 SC 1260 : (1965) 2 Cri LJ 266] this Court has interpreted the word “furtherance” as “advancement or promotion”. ” Page 7 of 23 Similarly, reliance was placed on Ramesh Singh v. State of A.P.2, wherein the Hon‟ble Supreme Court observed: it is necessary to understand " 12. To appreciate the arguments advanced on behalf of the appellants the object of incorporating Section 34 in the Penal Code, 1860. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf 2 (2004) 11 SCC 305 Page 8 of 23