Gujarat High Court
Ramesh Gagu Saamatbhai Bakutra vs State Of Gujarat on 31 July, 2026
NEUTRAL CITATION
R/CR.RA/277/2019 JUDGMENT DATED: 31/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 277
of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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RAMESH GAGU SAAMATBHAI BAKUTRA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
NISARG S SHAH(8886) for the Applicant(s) No. 1,2
MS.KRINA CALLA ADDL. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/07/2026
ORAL JUDGMENT
1. The present Revision Application is filed at the instance of
the original accused under Section 397 read with section 401
of the Criminal Procedure Code, 1973.
2. The applicant original accused have challenged the
judgment and order dated 28.02.2019, passed by the Court of
learned 4th Additional Sessions Judge, Bhuj in Criminal
Appeal No. 7 of 2018, whereby the learned judge has
concurred with the judgment and order 09.02.2018 passed by
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the learned 3rd Addl. Chief Judicial Magistrate, Bhuj, Kutch in
Criminal Case No. 1777 of 2015, whereby convicting the
present applicants for the offence punishable under Section
419 read with Section 114 of the Indian Penal Code and
imposing sentence of one year simple imprisonment with fine
of Rs. 2000/- each. Hence, the present Revision Application
assailing the aforesaid orders of conviction.
3. Considering the grounds raised in the Revision memo and
submissions made by learned advocate for the applicant, the
learned Single Judge of this Court vide oral order dated
19.03.2019, had admitted the Revision Application and by
interim relief had suspended the sentence imposed pending
the hearing and final disposal of the present application. The
learned judge noticing the age of the applicants as well as the
fact that no antecedents have been brought on record,
considering the sentence of one year, has enlarged the
applicants on bail subject to conditions.
4. The matter was notified under special assignment of old
targeted cases. With the able assistance of learned advocates
appearing on record the matter was heard.
5. Learned advocate Mr. Nisarg Shah, appearing for the
applicants has vehemently assailed the impugned judgment
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and order of conviction by submitting that the essential
ingredient of cheating is not satisfied. It was submitted that
even if the prosecution case is taken as it is, the offence under
Section 419 is not proved as at the most it can be said to be
an attempt to commit the alleged offence since it was not
successful. It was further submitted that in the facts of the
case, the alleged deceit was not made to the supervisor. At
the time of exam, it would be the supervisor who will be in
control of the process of conducting the examination in the
hall. Reliance was placed on the judgment of the Kerala High
Court in the case of Nilesh Ramchandra Japthap Vs. State
of Kerala, reported in 2024 SCC on line Ker 1627. Inviting
my attention to the relevant observations, the learned
advocate had pointed out the essential ingredients of the term
cheating as defined under Section 415 of the Indian Penal
Code. It was further pointed out that the Court has referred to
the decision of the Hon’ble Supreme Court in the case of Ram
Jas Vs. State of U.P reported in (1970) 2 SCC 740. In the
said case, the oath Commissioner was induced to attest the
affidavit by wrong identification of affiant by the accused. The
Hon’ble Supreme Court upon appreciation of the evidence and
in light of the ingredients of the offence alleged arrived at a
conclusion that the High Court lost sight of the fact that the
persons who were cheated or attempted to be cheated as
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referred to in the charges framed against the accused were
the office bearers of relief and rehabilitation. There was no
charge at all relating to any cheating or attempt to cheat the
Oath Commissioner who had otherwise administered the oath.
It was submitted that considering the facts of the case as
projected by the prosecution, it is not even the case of the
prosecution that the accused No. 2 had returned the answer
sheet on behalf of the accused No.1. Indisputably, no answer
sheets written by the accused No. 2 have been recovered. It
was when the verification with regard to identity of the
candidates were in process, that the applicant No.2 was
caught. He has, therefore, submitted that no offence actually
was committed by the applicants. It was at the most a failed
attempt to commit the offence. The reliance was placed on
Section 501 of the Indian Penal Code to contend that by virtue
of aforesaid provision the offence in such case of attempt
being failed to commit an offence would be half of the
sentence of the actual offence if it would have been
committed. It was, therefore, submitted that if the case of the
applicants are to be treated covered under Section 511 of the
Indian Penal Code, they shall be entitled to benefit of
probation. The attention of this Court was also invited to
Section 3 of Probation of Offenders Act. Reliance was placed
on the recent judgment of the Hon’ble Supreme Court in the
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case of Lakhvir Singh Etc. Vs. State of Punjab and Anr.,
Neutral Citation 2021 SC 27. It was further argued that the
offence had taken place inside the examination hall where
except for student/candidates appearing for exam, no other
persons were permitted to enter the examination hall. It is an
undisputed fact that the applicant No.1 was not even present
in the examination hall so as to attract the offence of
abatement under Section 114 of the Indian Penal Code. Even
otherwise, there is no evidence brought on record to suggest
in what way he has abated the offence, except the implied
permission being inferred by the Court given to accused No. 2
to appear in exam on his behalf. In order to substantiate this
aforesaid argument, learned advocate has placed reliance
upon the judgment of the Division Bench of this Court in the
case of State of Gujarat Vs. Khatubhai Limbabhai Pagi
and Ors. Reported in 2014 SCC Online 15849 equivalent
to (2014) 55(3) GLR 1919. The attention of this Court was
invited to the relevant observations made in para 39 of the
said judgment. It was, therefore, submitted that alternatively
Section 109 of the Indian Penal Code would be made
applicable unless his main argument that offence under
Section 419 is not proved, is rejected.
6. On conduct, learned advocate had pointed out that the
conditions on which the present applicants were enlarged on
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bail by this Court, had been strictly adhered to. In absence of
any other antecedents reported against the present applicants
and considering the nature of offence, they are entitled to
seek probation in view of Section 4 of Probation of Offenders
Act. It was further submitted that the applicants are settled in
their respective lives. They are small scale labourers and are
also sole bread winners of their families. Referring to the
judgment of the Hon’ble Supreme Court in the case of
Lakhvir Singh (supra), it was pointed out that the age of the
applicants were around 19 years at the time of the incident
and were 23 years when convicted. Learned advocate had
therefore, fairly submitted that the benefit envisaged under
Section 6 of the Act would not be applicable in the facts of the
case. He has therefore urged this Court to consider Section 4
in view of section 11 of the Probation of Offenders Act, even at
the Revisional stage, as this Court is conferred with
jurisdiction to correct any palpable error, infirmity or illegality
committed by the Courts below.
7. On the other hand, learned APP Ms. Krina Calla, appearing
for the respondent State has at the outset pointed out that
since the essential ingredients of Section 420 of the Indian
Penal Code are not satisfied to the facts of the case, though
being initially charged for the offence punishable under
Section 420 of the Code, the applicants were acquitted for the
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same. She has further submitted that considering the
distinguishing features so far as offence under Section 419 of
the Code is concerned, the prosecution has successfully
established the element of cheating which is the core
ingredient of the said offence. It was pointed out that the
applicant No. 2 was trying to cheat not only the supervisor of
the examination hall but his act had large implications
inasmuch as the fact remains that exams were held at the
instance of State Board where the students appearing in the
exam compete with each other to qualify to secure their
position on merits and to get admission as per their respective
rankings. Considering the above aspect, the act of the
applicants cannot be confined to the supervisor of the
examination hall but masses at large. The end result in case if
the applicant has succeeded would have been that he would
have secured a higher position compared to meritorious
students and the person who was otherwise not competent to
get admitted in a reputed institution would have earned merit
against the other candidates. She has, therefore, submitted
that the argument made by learned advocate for the
applicants that the end result of cheating the supervisor of the
examination hall being not committed and was merely an
attempt is misconceived and is irrelevant. As regards the
judgment relied upon by learned advocate for the applicant on
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the aforesaid aspect, would therefore be not applicable in the
distinguished facts of the case. She has, therefore, submitted
that it was not merely an attempt of an offence. The offence
was actually committed once the applicant under the fake
identity impersonating as the accused No.1 has entered into
the examination hall. Learned APP has relied upon Section
114 of the Indian Penal Code to contend that the Court can
always draw inference to presume certain facts even in
absence of any proof of evidence being brought on record the
very moment when the applicant No.2 by impersonating
himself as applicant No.1 entered the examination hall. It is to
be interpreted that as if the person if present would have
abated the offence. She has, therefore, submitted that Section
109 of the Code would not be applicable in the facts of the
case. She has therefore submitted that the core argument
raised by learned advocate that it was merely an attempt, and
therefore, for the purposes of sentence of Section 419 has to
be read with Section 511 of the Code is concerned is required
to be rejected.
8. In rejoinder, learned advocate for the applicant had
submitted that indisputably the attempt made was not
successful. He has further submitted that the State Board is
represented by the person who is in charge of conducting the
examination. According to the learned advocate the
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supervisor of the examination hall is in charge of the process.
As a conductor he has to ensure that proper mode and
modality as instructed by the Board is followed. He is
considered as the head of the concerned Center where the
exam is conducted. Once he enters the examination hall, it
can be said that the intention of the accused to commit an
offence is made out. However, the very fact that he was not
permitted to give the exam at the threshold, in absence of any
answer sheet being recovered, the offence of cheating was not
translated. It was further submitted that at the time of hall
ticket verification the accused was caught. Though in the FIR
it is averred that exam was scheduled between 10.00 to 13.20
hours, once the candidate enters into the examination hall the
protocol demands that before starting of the actual exam, the
initial time slot would be utilised for the purpose of
verification of identity of the candidates and it is only when
the identity of the candidate are verified, the process of
examination starts. In this regard, learned advocate had
pointed out that indisputably the prosecution has failed to
plead that the footage of CCTV cameras were collected to find
out as to whether the applicant No.2 had actually signed
across the answer sheet. It was submitted that not an iota of
evidence in this regard has been brought on record. He has
therefore, once again urged this Court to reduce the sentence
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period by treating it as an attempt to commit an offence by
bearing in mind the provisions of Section 511 of the Code.
Learned advocate has once again prayed for considering their
case for probation by considering their reduced sentence of
less than 7 years.
9. Considering the arguments of learned advocates for the
respective parties and noticing the nature of offence and the
surrounding circumstances, this Court vide order dated
25.06.2026, has directed the Probation Officer to submit
report as about current status of the applicants as to how they
are settled in society, their social background, about adhering
to the conditions of bail and any involvement in other
offences, in order to appreciate the aspect 0f reduced
sentence or grant of probation.
10. In order to appreciate the arguments advanced by learned
advocates appearing for the respective parties, it would be
appropriate to consider the essential ingredients of Section
419 of the Indian Penal Code. Section 419 of the Indian Penal
Code is a charging Section, providing punishment for cheating
by personation. Thus, in order to bring home the charge of
offence under Section 419, the necessary elements of Section
416 of the Indian Penal Code are required to be proved and
established by the prosecution. Apart from the aforesaid
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elements, it is also necessary for the prosecution to prove that
the person who was deceived has been cheated by such
personation.
11. The ingredients for cheating in view of Section 416 of the
Indian Penal Code are that there should be deception or
intentionally inducing the victim to do or omit to do anything
which he would not do or omit if he were not so deceived.
Thus, in the facts of the case, the prosecution was required to
establish that the person conducting the examination was
cheated by the applicant No. 2, who pretended to be some
other person or had represented that he is a person other
than him, then such person can be charged with the allegation
of cheating by personation for which punishment under
Section 419 of the Code is provided of imprisonment of either
description for a term which may extend to three years, or
with fine, or with both.
12. Bearing in mind the aforesaid provision, I have carefully
considered the findings and reasons assigned by the learned
Sessions Judge in light of the evidence on record. Having
appreciated the aforesaid findings recorded by the learned
Sessions Judge, it is evident that most of the witnesses have
supported the case of the prosecution except for the panch
witness. Considering the limited arguments advanced by
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learned advocate for the applicants, the presence of the
applicant No. 1 at the time of the incident is not in dispute. As
against that, the original informant (P.W.No.5) Prakash
Chhaganlal Thakkar (Exhibit 17) has been examined by the
prosecution. He was assigned the charge of building
conductor at the time of incident. Considering his entire
evidence on record, he has supported the case of the
prosecution. As against that, no contradictory facts have been
brought on record by the defence. The other witness viz.
Rajkumar Champaklal Pandya, has been examined by the
prosecution as PW No. 6. He was Block Supervisor of the
examination hall at the time of incident. Appreciating his
evidence, the prosecution has brought on record the evidence
with regard to involvement of present applicants inasmuch as
he has clearly identified the applicant No. 2 before the trial
Court. He has categorically stated on oath that on suspicion
he had informed Building Conductor Prakashbhai and in turn,
Prakashbhai had immediately approached the examination
hall, whereby the applicant No. 2 was inquired about his
identity. He has further stated that he has disclosed himself as
Uttam Prabhu Bakutra a, whereas the actual name of the
student was Ramesh Bakutra. Thus, the applicant No. 2 was
found to have impersonated himself as another person.
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13. Having appreciated the aforesaid evidence, the argument
advanced by learned advocate for the applicants that it was
merely a failed attempt to commit the offence under Section
419 of Indian Penal Code does not merit. Considering the
necessary ingredients of Section 416 of the IPC which defines
cheating by personation, the very fact that the applicant No. 2
pretended to be someone else, knowingly had substituted
himself for another person and by making such representation
while carrying admit card with him and having entered the
examination hall, he had completed his task of representing
the other person. In the opinion of this Court, the moment the
applicant No. 2 had entered the examination hall carrying
admit card by pretending to be the candidate of admit card,
the act of personation was achieved. Merely because prior to
the holding of actual examination, the applicant was caught
from the spot by the block supervisor and Building Conductor
i.e. before entering any word in the answer sheet would make
no difference.
14. As regards the contention raised by learned advocate for
the applicants about not having cheated the Building
Conductor as being caught by the Block Supervisor is
concerned, the same is also without any merits. It is required
to be noted that it has transpired from the evidence of Block
Supervisor that on suspicion he had informed the Building
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Conductor Prakashbhai, and thereafter, the Building
Conductor Prakashbhai had approached his examination hall
and had inquired from the applicant No. 1 about his identity.
It is at this stage, the act of personation of applicant No. 1
was disclosed. It is also required to be noted that the core
task of Block Supervisor is to ensure a fair and honest
environment in the examination hall for which he is assigned a
task to collect material related to exam, to verify identity of
students and their admit cards as well as to distribute papers,
answer sheets on time. One of the requirements of the
aforesaid exercise to be undertaken by the Block Supervisor is
to ensure that the incident of cheating is prevented.
Considering the aforesaid aspect, merely because no answer
sheets were handed over to the applicant or there was no
recovery of any answer sheet from the applicant would have
no bearing insofar as the chain of events suggesting
completion of the offence of cheating by personation.
15. As regards charge of abetment against applicant no.1 is
concerned, it is required to be noted that the applicant no.1
has handed over the admit card to the applicant no.1, which
reflects the active participation of the applicant no.1 in
conspiration and instigation to commit act of personation by
applicant no.2. However, it is not in dispute that the applicant
no.1 was not present at the time of actual offence when
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implemented. In view thereof, applying the principles laid
down in the case of Khatubhai Limbabhai Pagi (supra), in
my view, the essential element of abettor’s presence at such
commission of offence being absent, the applicant no,2 is
convicted under section 109 instead of section 114 of the
Indian Penal Code, as there was abetment by applicant no.1
previous to commitment of the actual offence.
16. For the foregoing reason, the revision application is partly
allowed. The impugned judgment and order dated 28.02.2019,
passed by the learned Additional Sessions Judge, in Criminal
Appeal no.7 of 2018 confirming the judgment and order dated
17.08.2015, passed by the learned Additional Chief Judicial
Magistrate in criminal case no. 1777 of 2015 is modified . The
applicant no.1 Ramesh Gagu Bakutra is hereby convicted for
the offence punishable under section 109 of Indian Penal Code
whereas the applicant no.2 Uttam Gagu Bakutra is convicted
for the offence punishable under section 419 of the Indian
Penal Code.
17. This brings me to the aspect of sentence and fine as
imposed by the courts below while convicting the applicants
for the offence charged. Having found the applicants guilty of
offence punishable under section 109 and section 419 of
Indian Penal Code, the next question which arises for
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consideration is the sentence to be imposed or alternatively to
consider their case for probation in view of section 3 and 4 of
the Probation of Offenders Act, 1959.
18. Considering the provisions of section 4 of the Probation of
Offenders Act as well as the sentence of either description for
a term which may extend to three years being prescribed
under the aforesaid charge of section 419 read with section
109 of Indian Penal Code, in my view the applicants can be
extended benefit of probation. The report dated 30.07.2026,
submitted by the Probation Officer, Kutch, suggests that the
applicants are not involved in other offences. The conduct of
the applicants in the society during these years is reported to
be good. The certificates in this regard issued by their
employers and sarpanch of their native village are forming
part of such a report. Considering the nature of offence, their
age at the time of incident and their subsequent approach
towards society, I am inclined to take a lenient view bearing
in mind the guiding principles laid down by the Hon’ble
Supreme Court in the case of Lakhvir Singh (supra).
19. For the foregoing reasons, the following directions of
grant of probation instead of sentence and fine, are issued :
19.1 The applicants are directed to remain under supervision
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of the Probation Officer, Kutch during a period of one year
from today. The applicants shall not get involved in any kind
of illegal activities and shall furnish the details of their
permanent abode. The applicants shall furnish bonds without
sureties thereby specifying to abide by the conditions so
imposed.
20. With these observations, the present revision application
stands disposed in aforesaid terms.
21. Registry is directed to send back the record and
proceedings to the concerned courts along with writ of this
order. Copy of the order may also be furnished to the
Probation Officer, Kutch for observing compliance of
directions issued.
(NISHA M. THAKORE,J)
MARY VADAKKAN
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