1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.438 OF 2007
WITH
CRIMINAL APPEAL NO.439 OF 2007
WITH
CRIMINAL APPEAL NO.454 OF 2007
Shri Hemant s/o. Omkarrao Thakre
Aged about 44 years, Occupation : Service,
R/o 262-A, Laxmi Nagar, Nagpur.
... APPELLANT.
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi, Nagpur.
... RESPONDENT.
Shri S.P.Dharmadhikari, Mrs. Sangeeta Gaikee-Jachak, Advocates for
Appellant.
Shri S.S. Doifode, Additional Public Prosecutor for Respondent.
WITH
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CRI.APPEAL NO.439 OF 2007.
Anil S/o. Sitaram Gupta,
Aged about 31 years,
Occupation : Business,
R/o. Gopal Nagar, Nagpur.
(Presently lodged at Central Prison,
Nagpur).
... APPELLANT.
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
Nagpur.
... RESPONDENT.
Shri S.S.Vaditel, Advocate for Appellant.
Shri S.S. Doifode, Additional Public Prosecutor for Respondent.
WITH
CRI.APPEAL NO.454 OF 2007.
Shri Shyamrao S/o. Kisanrao Kalamkar,
Aged about 60 years, Occu. : Retired,
R/o. Misal Layout, Near Dhamm Kuti
Vihar, Jaripatka, Nagpur.
... APPELLANT.
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
Nagpur.
... RESPONDENT.
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Shri S.P.Gadling, Advocate for Appellant.
Shri S.S. Doifode, Additional Public Prosecutor for the Respondent.
CORAM : R.C.CHAVAN, J.
Date of Reserving the Judgment : 22-1-2009.
Date of Pronouncing the judgment : 03-2-2009.
JUDGMENT :
1. These appeals are directed against appellants’
conviction for various offences and sentences imposed upon them
for those offences by the learned 2nd Additional Chief Judicial
Magistrate, Nagpur, in Criminal Case No.375 of 2002.
2. In the year 1999, a scandal of bogus degrees,
mark-sheets and unwarranted increase of marks in revaluation at
various examinations conducted by the Nagpur University
surfaced. The University authorities reported the matter to police,
whereupon Crime No.346 of 1999 was registered on
22nd June, 1999 on the complaint of Shri Prakash Mistry. Two
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other crimes were also reported. In course of investigation of
these crimes, some more matters surfaced. On 21-6-1999, on a
report by Shri Prakash Mistry, Crime No.346 of 1999 was
registered against some students of the University. Eventually, in
Crime No.348 of 1999, Shri Prakash Mistry was himself arrested
by the police. Investigation into the crimes was conducted by PI
Sayyad and after him by PSI Anil Lokhande.
ig Originally one
chargesheet was filed bearing Regular Criminal Case No.387 of
1999 and after separate trials were ordered, separate
supplementary chargesheets for various offences came to be filed
against various offenders.
3. Facts, which led to prosecution and conviction of the
appellants are as under :
Appellant Anil Gupta in Criminal Appeal No.439 of
2007, who was accused No.1 before the Court, was a student, who
had appeared at Part III of BE Examination in Summer- 1998. He
failed in some of the subjects at the said examination. The Nagpur
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University permitted revaluation of answer books in terms of
Ordinance No.159 at the instance of such failed candidates.
Therefore, accused No.1 Anil Gupta applied for revaluation of his
papers of Theory of Structures(TOS)-1 and Limit State Design
(LSD), by paying requisite fees.
4. Procedure for conduct of examinations is prescribed in
Ordinance No.9 issued by the Nagpur University. It provides,
among other things, from Clause 57 onwards, for appointing
tabulators, scrutineers, etc., and their respective roles. This
ordinance did not provide for revaluation, which facility was
introduced by Ordinance No.159. Ordinance No.159 providing for
revaluation merely gives sketchy procedure about revaluation. It
does not lay down the procedure to be followed internally by the
University administration. Therefore, it may be taken that the
provisions of Ordinance No.9 would apply mutatis mutandis to
revaluation as well.
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5. The practice, which was followed by the University
officials for such revaluation has been deposed to by PW 3
Narayan Ghatole, an employee of the University in the
Revaluation Section, and PW 1 Gangaram Meshram, the Assistant
Registrar (Revaluation) of the University. According to them,
after a candidate applied for revaluation after paying the
prescribed fee, an entry used to be taken in the Revaluation
Tabulation Register (hereinafter referred to as “the RTR” for the
sake or brevity). The RTR contains the following columns :
I) Sr.No. VIII) Original Marks
II) Roll No. IX) Marks of 1st examiner in
revaluation
III) Date and amount X) Marks of 2nd examiner in
revaluation
IV) Name of candidates XI) Average marks in both
V) Case No./Code No. XII) Result/change or no change
VI) Subject paper XIII) % increase or decrease
VII) Maximum marks XIV) Signature of scrutineer
XV) Remarks
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The Clerks in the Revaluation Section used to fill up column
nos.(I) to (IV) and (VI) to (VIII) on the basis of the material which
they already had. Requisition for relevant answer books used to
be sent to the godown. After the answer books were received, the
portion of the answer book containing roll number of the
candidate and marks obtained by him in the original valuation
used to be masked. A code number used to be printed on the
answer book by using a numbering machine.
6. According to Shri Ghatole, earlier the University used to
maintain a register, where roll number of the candidate and the
code number allotted to his answer books used to be recorded.
However, since it was found that students could trace out the
place where papers were sent for revaluation from this register,
this practice was discontinued.
7. The answer books of students in the Engineering faculty
used to be taken by a special messenger to the examiners
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appointed for the purpose of revaluation. Normally, the answer
book used to be taken to a College in another University, where
the Principal or the Head of the Department in the College
concerned, used to assign the task of revaluation to the examiners
in the said College or University. They were not supposed to write
the marks on the answer sheets itself. These examiners were
provided with “revaluation sheets”.
ig These revaluation sheets
contained columns of code number and marks assigned to each
answer, with a column of total at the end. The revaluation sheet
also provided for recording the subject of the question paper and
its date. The revaluation sheet was to be signed by the revaluator.
One revaluation sheet ordinarily contained 9 to 10 rows so that
information in respect of 9 to 10 answer sheets revalued would be
filled in. Since the examiners, who revalued the papers, had no
access to the roll number, they would mention the code number
and then fill up the marks allotted by them for each answer. Since
the revaluation of each answer book used to be done by two
revaluators, there used to be two such revaluation sheets (for the
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sake of easy reference, they would be hereinafter referred to as
“R1” and “R2” sheets corresponding to revaluation done by the
first and the second revaluator). The messenger, who took the
papers for revaluation, used to bring back the answer books along
with revaluation sheets to the University.
8. After receipt of answer books and revaluation sheets in
the Revaluation Section of the University, the University
employees used to de-mask the roll number on the answer sheet
and used to fill up column no.(V) in the RTR by recording the
relevant code number against the name of the student, his roll
number and subject of the paper sent for revaluation.
9. After this was done by the University employees, the
RTR along with R1 and R2 sheets used to be handed over to
scrutineers. The scrutineers were select Professors of affiliated
Colleges, who were assigned the task of entering marks obtained
upon revaluation. The scrutineers used to work in pairs. Two
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Professors would be working as a team for entering marks in
respect of one or more students. Column nos.(IX) and (X) for
marks assigned by the two examiners used to be filled in by the
scrutineers. They then calculated average marks and filled them
up in column no.(XI). In column no.(XII), the scrutineers would
mention whether there was a change or no change or an adverse
change. In column no.(XIII), they were supposed to mention the
percentage of increase or decrease and were expected to sign the
entry in column No.(XIV). If there was a change of 5% or more
over the original marks, then the result of the candidate would
change.
10. It is not in dispute that there is no authentic document
to describe this procedure or to discern as to what was the
standard procedure to be followed. However, according to Shri
Ghatole, after the RTR was filled up, a notification was expected
to be issued about change in the result upon revaluation. After
this notification, necessary changes were made in the Final
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Tabulation Register (for short, hereinafter referred to as “the
FTR”). The FTR in respect of an examination conducted by the
University used to be drawn up after evaluation of answer books
at the examination was over and the result used to be declared on
the basis of the FTR. The FTR is in the form of a computer
printout since the record was computerised. Thereafter the
students used to apply for revaluation. After revaluation, change,
if any, in the marks used to be noted in hand in the FTR by the
same set of scrutineers.
11. Accused No.2 Suresh Manmode and accused No.3
Shyamrao Shinde were the pairs of scrutineers, who were
entrusted with the task of entering marks of accused No.1 Anil
Gupta in the RTR as well as the FTR. Both of them are now dead.
Accused No.4 Shyamrao Kalamkar was the Assistant Registrar in
charge of Revaluation Section in the University. Accused No.5
Hemant Thakre was a Professor in Yashwantrao Chavan College of
Engineering and Dean of the Engineering Faculty.
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12. In this case, Anil Gupta, accused No.1, had initially
secured 23 marks out of 80 in the subject of TOS-I and 19 out of
80 marks in LSD. He applied for revaluation. Code Nos. 4728
and 4482 were assigned to his answer books of TOS-I and LSD
respectively. Examiner-I for the subject of TOS-I had assigned him
31 marks and Examiner-II had assigned 29 marks, thus average of
marks came to 30. However, while noting the marks in the RTR,
the marks assigned by Ist and IInd Examiners were entered by
Scrutineer Shri Shinde as 41 and 37 and the average was shown
as 39. However even these marks were scored out and 37, 29 and
34 marks were entered in columns of R1, R2 and average
respectively. Change was shown to be 14%, by scrutineer Shri
Manmode. Thus, by adding 8 marks of sessionals the accused
would pass in TOS-I subject. In the subject of LSD, for which code
No.4482 was given accused No.1 had initially scored only 23
marks. The two examiners gave 33 and 34 marks. Average thus
came to 34 and after adding 4 sessional marks accused No.1
would have failed. However, in the RTR scrutineer Shinde
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entered 34 and 38 marks as assigned by the two revaluators and
drew up average of 36. Correction in respect of average was
initiated by Scrutineer Shri Manmode. Originally change of 19%
was shown which was altered to 22% by Manmode. In the FTR
corresponding changes were made by Shri Manmode. In the FTR,
the marks in theory were changed to 29, practical marks of 14
were added, and thus he was shown to have secured 43 marks,
and got an exemption.
13. It is the case of the prosecution that accused No.1 Anil
Gupta approached accused Nos.2 to 5 in order to get his marks
changed and accused Nos.2 to 5 changed the marks in order to
favour accused No.1, either actively indulging in making such
changes or conniving at such changes or contriving to bring about
changes by abetment, by engaging in conspiracy. It was,
therefore, alleged that accused No.1 had committed offence
punishable under Section 420 of the Penal Code; accused Nos.2 to
5 had committed offences punishable under Sections 468 and 471
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read with Section 34 of the Penal Code, and all the accused
persons had committed offences punishable under Sections 420,
468 and 471 read with Section 109 of the Penal Code.
14. In course of investigation, the Investigating Officer
secured the necessary record from the University, recorded
statements of witnesses, had the disputed and admitted
handwriting of all dramtis personae sent to the Examiner of
Questioned Documents, State CID, Pune, and after getting an
opinion from the Experts, and finding that the accused persons
were involved in the aforementioned offences, chargesheeted
them.
15. The learned Chief Judicial Magistrate, Nagpur, charged
all the appellant Anil Gupta of offences punishable under Sections
420 read with Section 34 of the Indian Penal Code and the other
appellants of offences punishable under Sections 468 and 471
read with Sections 109 and 34 of the Penal Code. The appellants
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Shyamrao Kalamkar and Hemant Thakare were later also charged
of offence punishable under Section 409 read with Section 34 of
the Penal Code. Accused Nos. 2 and 3, scrutineers Suresh and
Shyamrao died before charge could be framed. The accused
pleaded not guilty to the said charge and hence were put on trial,
at which the prosecution examined in all 11 witnesses in its
attempt to bring home the guilt of the accused. They are : PW 1
Gangaram Meshram, who was serving as Assistant Registrar
(Revaluation), PW 2 Bhaiyyalal Barbate, who was Assistant
Registrar Professional Examinations, PW 3 Narayan Ghatole,who
was serving as Senior Clerk in Revaluation Section, PW 4 Vishwas
Rajangaonkar, Examiner of Questioned Documents in the State
C.I.D., PW 5 Jageshwar Sahariya, who was acting as Vice
Chancellor of the University, PW 6 Shriniwas Patwardhan, Chief
Administrative Officer, Yashwantrao Chavan College of
Engineering, PW 7 Laxman Khobragade, API, who registered the
F.I.R., PW 8 Udaykumar Pandya, Reader Govt. Engineering
College, Jabalpur, PW 9 Dharmesh Parate, Deputy Registrar
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Academic, VNIT, Nagpur, P.W. 10 Dr. Vijendra Kumar, Valuer-II,
PW 11 Investigating Officer PSI Anil Lokhande.
16. After considering the evidence tendered before him, the
learned 2nd Additional Chief Judicial Magistrate, Nagpur, held that
the charges against accused Nos. 1, 3 and 5 were proved. He also
convicted the accused of offence punishable under Section 120-B
of the Penal Code. The convictions and sentence recorded by the
learned Magistrate are as under :
(a) For offence punishable under Section 420
read with Section 34 & 109 of the Penal Code accused
No.1 Anil Gupta, accused No.4 Shyamrao Kalamkar and
accused No.5 Hemant Thakare were sentenced to
rigorous imprisonment for four years and fine of
Rs.20,000/- each, or in default RI for two months.
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(b) For offence punishable under Section 468
read with Sections 34 & 109 of the Penal Code accused
No.1 Anil Gupta, accused No.4 Shyamrao Kalamkar and
accused No.5 Hemant Thakare were sentenced to
rigorous imprisonment for three years and fine of
Rs.15,000/- each, or in default RI for one month.
(c)
For offence punishable under Section 471
read with Sections 34 & 109 of Penal Code, accused
No.1 Anil Gupta, accused No.4 Shyamrao Kalamkar and
accused No.5 Hemant Thakare were sentenced to
rigorous imprisonment for one year and fine of
Rs.15,000/- each, or in default RI for one month.
(d) For offence punishable under Section 120-B
of the Penal Code, accused No.1 Anil Gupta, accused
No.4 Shyamrao Kalamkar and accused No.5 Hemant
Thakare were sentenced to rigorous imprisonment for
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six months and fine of Rs.2,000/- each, or in default RI
for fifteen days.
(e) For offence punishable under Section 409
read with Section 34 of Penal Code, accused No.4
Shyamrao Kalamkar and accused No.5 Hemant Thakare
were sentenced to rigorous imprisonment for four years
and fine of Rs.20,000/- each, or in default RI for two
months.
17. The learned Magistrate directed that all the sentences
imposed upon the appellants were to run consecutively and not
concurrently. Aggrieved thereby, the appellants have preferred
these appeals. He also ordered confiscation of mark list as well as
degree of B. E. (Civil) of appellant Anil Gupta.
18. I have heard the learned counsel appearing for the
respective appellants and the learned APP for the State. With the
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help of all the learned counsel, I have gone through the evidence
tendered.
19. Anil Gupta had admitted in his statement under Section
313 of the Code of Criminal Procedure that he had appeared in BE
Part III Examination in Summer-1998 and failed. He admitted
that he had scored 23 and 19 marks respectively in TOS-I and LSD
papers, in reply to question No.1 and had applied for revaluation.
He stated that he had failed in revaluation.
20. PW 1 Shri Gangaram Meshram was the Assistant
Registrar, Revaluation, after the scandal came to light. Various
documents were made available by him to the investigating
machinery. He deposed about the entire process of revaluation.
He stated that accused Anil Gupta had initially scored 23 and 19
marks in TOS-I & LSD papers respectively. Anil’s roll No. was 499.
Anil applied for revaluation. His answer sheet of TOS-I was given
code No.4728 and answersheet for LSD was given Code No.4482.
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In the RTR against subject of TOS-I, 39 and 29 marks were
entered in columns of two revaluations and average marks were
noted as 34. Against subject of LSD 34 and 38 marks were noted
as assigned by two revaluators and average was shown as 36.
Increase was shown as 14% in TOS-I and 22% in LSD.
Accordingly in the FTR marks against TOS-I and LSD were shown
as 34 and 36, respectively. R1, R2 sheets on the basis of which
these marks were entered were identified by him at Exh. 22 to 25.
Evidence of P.W. 2 Bhaiyyalal Barbate, who was Assistant
Registrar, Professional Examinations is to the same effect.
21. Revaluator Prof. Pandya was examined as PW 8. He
stated having received the answer papers of BE Part III Theory of
Structures (TOS)-I and Limit State Design (LSD) bearing Code
Nos. 4728 and 4489 on R1 sheet from the Nagpur University.
After assessment of the papers, he allotted 29 marks against Code
No.4728 on R2 sheet and 33 marks against Code No.4482 on R1
sheet. He proved R1 & R2 sheets to be in his handwriting, which
are at Exhibits 23 and 25.
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22. PW 10 Prof. Jain stated that he had examined TOS-I
paper of BE Part III Examination and identified revaluation sheet
Exh. 22 dated 30.09.1998 to be in his hand and bearing his
signature. Against Code No.4728, he claims to have given 31
marks.
23. PW 3 Narayan Ghatole had also stated about the change
in marks. He identified R1 and R2 sheets at Exhibit 22 and 23.
He stated that the student had initially scored 23 marks in TOS-I.
After adding 8 marks of sessional examination, the total marks
were 31 and thus the student had failed. The Revaluators had
awarded 31 and 29 marks respectively against Code No.4728.
They were wrongly entered as 39 and 29 with average drawn as
34, when it ought to have been 30. He stated that initially in the
RTR against the subject TOS-I, 41, 37 and 39 marks were entered.
According to Narayan, these entries are in the handwriting of
deceased scrutineer Shinde. They were changed to 37(39?) and
29 and 34 in the handwriting of deceased scrutineer Manmode.
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Adding 8 sessional marks Anil Gupta had thus scored total of 42
marks and had passed. According to P.W. 3 Narayan Ghatole, in
the subject of LSD, Anil Gupta had initially scored 19 in theory
and 4 marks in sessional. His answer sheet with code No.4482
was sent for revaluation. In revaluation he was awarded 33 and
34 marks respectively and thus the average came to 34. Even with
the addition of 4 sessional marks, the candidate failed. However,
in the RTR marks entered were 34 and 38 and average was shown
as 36, with overwriting in average. Original figure 33 was
changed to 38. Adding 4 marks scored in sessionals, Anil Gupta,
thus passed even in LSD. He stated that these entries against the
subject of TOS-I were in the handwriting of accused No.2
Madhukar Smarth.
24. PW 3 Narayan Ghatole had stated that since he was
working in Revaluation Section, he had the occasion to see their
handwritings and signatures frequently and, therefore, could
identify the signatures and handwritings of all the six Scrutineers.
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25. PW 11 PSI Lokhande had conducted investigation in the
matter. He stated in para 6 of his deposition about change of
marks in the case of Anil Gupta. In para 9 of this deposition, he
stated that he had caused specimen handwriting of Dean Hemant
Thakre to be obtained, and sent the samples along with the
questioned writing to the Examiner of Questioned Documents. He
had also caused handwriting of other persons involved in the
scandal to be collected and sent to the Examiner of Questioned
Documents.
26. PW 4 Vishwas Ranjangaonkar is the State Examiner of
Questioned Documents, who stated about examination of
documents referred to him. Since appellant Hemant Thakre
admitted that chit in question was in his handwriting and since
the scrutineers who allegedly entered wrong marks are dead, it
may not be necessary to dwelve on the evidence of P.W. 8 at
length.
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27. The learned counsel for appellant Anil Gupta submitted
that there is no evidence that Anil Gupta had ever approached
other accused persons or that other accused persons changed the
marks to the advantage of Anil Gupta at the instance of Anil
Gupta. He submitted that it may be possible that the change was
unintentional, that is, without any motivation to make such a
change, or could also have been at the instance of someone else
and not necessarily Anil Gupta. Therefore, according to the
learned counsel, since the nexus is not established, it would be
wrong to hold that the accused persons had engaged in any
conspiracy or that Anil Gupta had abetted in forgery or
falsification of record by Scrutineers or that Anil Gupta had
indulged in cheating by using a genuine mark-list, which was
false.
28. The learned APP submitted that it would be too far
fetched to imagine that the Scrutineers would increase the marks
of Anil Gupta for no apparent reason, or without being
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approached by Anil Gupta or merely because he took a fancy for
the name. Since scrutineers are no more, it is not necessary to
ascertain authorship of handwriting. Suffice it to say that marks
of accused Anil Gupta were altered to his advantage.
29. The learned APP submitted that in course of
investigation, accused No.4 Shamrao Kalamkar had been arrested.
He was interrogated by Investigating Officer PI Sayyad in presence
of Advocate Dhananjay Dhondarkar, who was called as panch but
was not examined in this case. P.W. 11 P.S.I. Lokhande claimed to
have been present at the memorandum and stated that accused
Shamrao Kalamkar stated that Dr. Prakash Mistry and accused
No.5 Hemant Thakre and some others used to send chits to him to
have marks increased and that he had preserved those chits. He
stated that the chits were kept at his house and that he would
hand over the chits to the police. A memorandum was
accordingly made in presence of panch Dhananjay Dhondarkar as
well as other panch Sudhir Shivdekar. He proved the copy of
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memorandum from original, which was in record of another
Regular Criminal Case. He stated that then all of them procedded
to the house of Kalamkar in a jeep. Kalamkar’s house was situated
near Bouddha Vihar, Dhammapuri, Misal Layout, Jaripatka,
Nagpur, which was shown by Kalamkar himself. Kalamkar called
them inside the house and from the steel cupboard, took out some
some chits. After sorting out the chits from the almirah, he
handed over the chits to PI Sayyad, which included chits written
by accused Hemant Thakre. There was also an envelope, which
had been taken out. A seizure panchanama was drawn up and the
chits were seized. Copy of the panchanama was proved by the
witness at Exhibit 127. The chits and envelope seized were
proved at Exhibits 128, 129 and 130.
30. The learned counsel for accused Anil Gupta submitted
that the Investigating Officer had admitted in his cross-
examination that Anil Gupta had applied for revaluation in nine
subjects, out of which he passed in five subjects. No malpractice
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was found in respect of three subjects and so no case was filed in
respect of those subjects. Case is in respect of change in only TOS-
I and LSD papers. He admitted that in the chit Exh.129 written
by accused Hemant Thakre which is relevant, only the branch and
roll nos are mentioned. Roll No.499 of accused Anil Gupta is
written against the subject of Civil Engineering. The learned
counsel submitted that the theory of prosecution was that accused
Anil Gupta approached accused Hemant Thakre, who through
accused Shyamrao Kalamkar influenced the Scrutineers to change
marks. If that was so, the learned counsel wondered as to how
Anil Gupta could have failed in four subjects even after
revaluation. Therefore, according to the learned counsel, if there
is any mistake on the part of the University authorities to note
down marks in TOS-I and LSD papers, it cannot lead to inference
that it was done at the instance of accused Anil Gupta.
31. In State (Delhi Admn.) v. V.C. Shukla and another,
reported in 1980 Cri.L.J. 965(1), while considering the case of
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conspiracy, the Court held that it was well settled that in order to
prove a criminal conspiracy, there must be direct or circumstantial
evidence to show that there was an agreement between two or
more persons to commit an offence and that this clearly envisages
that there must be a meeting of minds resulting in an ultimate
decision taken by the conspirators regarding the commission of an
offence. The Court observed that it was true that in most cases, it
will be difficult to get direct evidence of an agreement to conspire
but a conspiracy can be inferred even from circumstances giving
rise to a conclusive or irresistible inference of an agreement
between two or more persons to commit an offence.
32. On the question of elements of conspiracy the learned
Additional Public Prosecutor placed reliance in K. Hashim Vs.
State of T.N., reported at (2005) 1 SCC 237 the Court was
considering ‘conspiracy’ in the context of circulating counterfeit
currency. In this context the Court observed in paragraph 22 of
the judgment as under :
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“22. It would be appropriate to deal with
the question of conspiracy. Section 120-B IPC is the
provision which provides for punishment for
criminal conspiracy. Definition of ‘criminal
conspiracy” given in Section 120-A reads as follows
:
“120-A. When two or more persons
agree to do, or cause to be done –
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is designated
a criminal conspiracy ;
Provided that no agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.”
The elements of a criminal conspiracy have been
stated to be (a) an object to be accomplished, (b) a
plan or scheme embodying means to accomplish the
object, (c) an agreement or understanding between
two or more of the accused persons whereby, they
become definitely committed to cooperate for the
accomplishment of the object by the means
embodied in the agreement, or by any effectual
means, and (d) in the jurisdiction where the statute
required an overt act. The essence of a criminal
conspiracy is the unlawful combination and
ordinarily the offence is complete when the
combination is framed. From this, it necessarily
follows that unless the statute so requires, no overt
act need be done in furtherance of the conspiracy,
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and that the object of the combination need not be
accomplished in order to constitute an indictable
offence. Encouragement and support which co-
conspirators give to one another rendering
enterprises possible which, if left to individual effort,
would have been impossible, furnish the ground for
visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued
and renewed as to all its members wherever and
whenever any member of the conspiracy acts in
furtherance of the common design. (See American
Jurisprudence, Vol.II, Section 23, p.559). For an
offence punishable under Section 120-B the
prosecution need not necessarily prove that the
perpetrators expressly agree to do or cause to be
done illegal act; the agreement may be proved by
necessary implication. Offence of criminal
conspiracy consists not merely in the intention of
two or more, but in the agreement of two or more
to do an unlawful act by unlawful means. So long
as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect,
the very plot is an act in itself, and an act of each of
the parties, promise against promise, actus contra
capable of being enforced, if lawful, punishable if for
a criminal object or for use of criminal means.”
33. In this judgment reliance is placed on earlier judgment
of the Supreme Court in Ramnarayan Popli Vs. CBI, reported at
(2003) 3 SCC 641, which too was made available for my perusal
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31
by the learned Additional Public Prosecutor. In that case a three
Judge Bench of the Supreme Court was considering the
ingredients of the criminal conspiracy amongst other things,
though the Judges were divided on the complicity of some of the
accused persons. According to the learned A.P.P., as far as
ingredients of conspiracy comes, observations of minority judge
Hon’ble Shri Justice Shah as well as majority judgment written by
Hon’ble Shri Justice Pasayat and Hon’ble Shri Justice Agrawal
would be helpful in bringing out as to what would constitute
conspiracy as also concepts of making false documents defrauding
dishonestly and fraudulently. I have carefully gone through the
judgment. In that case the Court was considering the cases which
were not of conventional or traditional type. The case pertained
to the famous security scam where the ultimate objective was to
use public money in carefully planned manner for personal use
with no right to it. The Court held that in the last few years the
country has seen an alarming rise in white-collar crimes which has
affected the fiber of the country’s economic structure. These cases
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are nothing but private gain at the cost of the public, and lead to
economic disaster.
34. The learned A.P.P. submitted, relying on the
observations of these cases that the duty cast on the scrutineers
and University officers in respect of filling in the marks secured by
the candidates was
ig an entrustment which they had
misappropriated by vending the marks to willing students by
engaging in a conspiracy.
35. The contention in relation to entrustment and
misappropriation is being dealt with separately. The foundation
of conspiracy is involvement of accused No.5 Hemant Thakre who
was allegedly approached by the students for getting their marks
changed and who inturn influenced the University officers to
change the marks. It may, therefore, be useful to examine the
explanation which accused No.5 Hemant Thakare has to offer in
this regard.
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33
36. Accused No.5 Hemant Thakre had admitted that in the
chit, copy whereof was at Exhibit 129, roll No.499 of Anil Gupta
was in his handwriting in response to question No.54. He
submitted reply to questions No.55 to 59 that he was the Dean of
the Faculty of Engineering and Technology, and since revaluation
results were not declared even after stipulated time he wanted to
know as to why revaluation results were not declared, and so sent
chits of roll numbers of concerned students with a request to
enquire about delay in declaration of revaluation results.
37. The learned Senior Counsel for appellant Hemant
Thakre submitted that revaluation results used to be declared in
bits as and when revaluation in respect of some of the students
was over. There used to be multiple notifications as and when
results were ready. Therefore, according to him, there is nothing
abnormal in the students approaching the Dean with a grievance
that their results were not declared. Therefore, he sent chit
Exhibit 129, to the Assistant Registrar (Revaluation). He
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34
submitted that it would be ridiculous to conclude that a person in
the position of a Dean of a Faculty desirous of indulging in
clandestine increase of marks would write a chit and send it. Had
accused Hemant Thakre desired to secure increase in marks, he
could have telephoned the officer giving the roll numbers or could
have contacted the officer secretly. Therefore, according to him,
sending the chits to the Assistant Registrar is consistent only with
the innocence of the accused.
38. The learned Senior Counsel for appellant Hemant
Thakre pointed out that the Investigating Officer had admitted in
paragraph 26 that only on the basis of statement of accused
Shyamrao Kalamkar Hemant Thakre has been involved in the case
and also that except the chit there is no other document on record
to connect accused Hemant Thakre. The Investigating Officer had
also admitted that it was the duty of the Board of Examinations to
declare the result and the Dean was the member of the Board. In
para 26 of the deposition, the Investigating Officer stated that the
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two chits Exhibits 128 and 129 contain roll numbers of 14
students. Out of them, cases have been filed only against seven
students. The Investigating Officer volunteered that since no
discrepancy was found in R1 and R2 sheets and RTR and FTR,
cases were not filed against remaining seven students. He had
admitted that even in respect of Anil Gupta no discrepancy was
found in respect of three subjects.
39. The Investigating Officer admitted that except chit
Exhibit 129, there was no other document on record to connect
accused Hemant Thakre to the crime. He admitted that accused
No.4 Shamrao Kalamkar told him that marks were increased at
the instance of Hemant Thakre and, therefore, Hemant Thakre has
been made an accused in the case, because the Investigating
Officer believed the information given by Shamrao Kalamkar as
true and correct.
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40. The learned Senior Counsel for appellant Hemant
Thakre submitted that it may be a mistake on the part of the
Investigating Officer to rely on statement of co-accused and to
chargesheet a person. But he wondered as to how the learned
Trial Magistrate could forget that such a statement of an accused
made to a Police Officer is inadmissible and a conviction could not
be based on such a statement.
ig The learned Senior Counsel
submitted that the evidence of the Investigating Officer clearly
shows that he had roped in accused Hemant Thakre only on what
the Investigating Officer understood to have been communicated
by Shamrao Kalamkar and on no other basis.
41. Further cross-examination of the Investigating Officer in
para 27 is also interesting. According to the Investigating Officer,
in the chit Exhibit 128, where five roll numbers are mentioned
and out of which cases have been filed against two students, there
were some figures in the chit, which, according to the
Investigating Officer, showed as to how many marks were
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required to be given to the students so that they could pass. He
stated that in the investigation, it was revealed that the cross
marks and tik marks in Exhibit 128 were made by Shamrao
Kalamkar. He admitted that such cross marks or tik marks are not
in the copies supplied to the accused and he could not assign any
reason for the same. Also numbers 15 and 33 in Exh.128 were
also not found in copies supplied to accused. The learned Senior
Counsel submitted that this would indicate that those cross marks
and tik marks were in fact made subsequently after the copies
meant for delivery to the accused were prepared and, therefore,
would rule out Shamrao Kalamkar making tik marks or cross
marks.
42. The entire cross-examination would show that there
was absolutely no reason to rope in appellant Hemant Thakre
except what Shamrao Kalamkar was allegedly told to the
Investigating Officer, which cannot be a part of the evidence.
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43. The learned Senior Counsel submitted that since the
chits were in respect of only Engineering student and since the
appellant was the Dean of Engineering Faculty, it is reasonable to
infer that the chit was sent because the student came with a
grievance that the revaluation result was heldup. He pointed out
that the fact that there was no irregularity in respect of half of the
roll numbers in the chits and even in more than half the number
of papers (7 out of 9) in which accused Anil Gupta appeared, since
the case is in respect of only two papers, would rule out the
possibility that the chit was sent in order to secure increase in the
marks or to influence the result. The learned Senior Counsel
submitted that in a case resting on circumstantial evidence, unless
it is shown that the circumstances are incompatible with the
innocence of the accused, conviction could not be handed down.
44. Relying on a judgment of the Supreme Court in Sharad
Birdhichand Sarda v. State of Maharashtra, reported at AIR 1984
SC 1622. The learned counsel submitted that in a case resting on
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39
circumstantial evidence, every circumstance has to be fully
established and the circumstances so established must form a
chain so complete as to leave no other conclusion but that of guilt
of the accused. The observations drawn in Sharad’s case by the
Hon’ble Supreme Court in para 152 of the judgment may be
usefully reproduced as under :
“152. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court
indicated that the circumstances concerned ‘must
or should’ and not ‘may be’ established. There is
not only a grammatical but a legal distinctionbetween ‘may be proved’ and ‘must be or should
be proved’ as was held by this Court in Shivaji
Sahebrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793 : (AIR 1973 SC 2622) where
the following observations were made :
“certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a Court can convict and the mental::: Downloaded on – 09/06/2013 14:18:27 :::
40distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not beexplainable on any other hypothesis except that
the accused is guilty.
(3) the circumstances should be of a
conclusive nature and tendency.
(4)
they should exclude every possible
hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of theaccused and must show that in all human
probability the act must have been done by theaccused.
45. In Jaharlal Das v. State of Orissa, reported at AIR 1999
SC 1388, on which the learned counsel for the accused placed
reliance, the Supreme Court had held that the circumstances from
which an inference of guilt is sought to be drawn must be cogently
and firmly established, those circumstances should be of a definite
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tendency unerringly pointing towards the guilt of the accused, and
the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused
and none else, and it should also be incapable of explanation on
any other hypothesis than that of the guilt of the accused.
46.
In Abdulla Mohammed Pagarkar etc. v. State (Union
Territory of Goa, Daman and Diu), reported at AIR 1980 SC 499,
the Court held that even strong suspicion created against the
accused, and failure of the accused to repel the same, is not
sufficient to convict the accused of offences punishable under
Section 5(1)(d) of the Prevention of Corruption Act and Sections
420 and 471 of the Penal Code.
47. Viewed in this light, the only circumstance established
in this case is that accused Anil Gupta had failed in nine subjects.
The application for revaluation had been made. At the
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revaluation, he had secured 31 and 29 marks respectively, in
subject of TOS-I which were changed to 39 and 29 by each of the
Revaluators while noting the marks in the RTR. He had secured
33 and 34 marks at revaluation of LSD paper by the two
examiners. They were changed to 34 and 38. Accused No.5
Hemant Thakre did send chit containing roll No.499 of accused
Anil Gupta, without mentioning any subject. Anil Gupta is not
shown to have been favoured in four out of nine subjects. There is
no irregularity in remaining three subjects. Half of the students
whose roll numbers are mentioned in the chits have not at all
been benefited. Accused Hemant Thakre was the Dean of the
Engineering Faculty. Results of revaluation was unduly delayed.
Therefore, the chits may have indeed been sent for reasons given
by appellant Hemant. Considering all this, it would be difficult to
hold that complicity of appellants in a conspiracy to increase the
marks of appellant Anil Gupta in the subject of TOS-I or LSD is not
established.
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48. In view of this, it would not be possible to sustain
appellants’ conviction for engaging in conspiracy to forge
tabulation registers and marksheets or to cheat the authorities by
not only using as genuine the forged document.
49. The learned Additional Public Prosecutor submitted that
appellant Shyamrao Kalamkar was the Assistant Registrar
incharge of Revaluation Section and, therefore, was entrusted
with the job of properly maintaining the relevant records. The
fact that in two subjects marks of appellant Anil Gupta were
wrongly entered in order to favour Anil Gupta would show that
the appellant Shyamrao Kalamkar has not discharged trust which
was reposed on him and therefore, was guilty for the offence
punishable under Section 409 of the Penal Code.
50. In R.K. Dalmia Vs. Delhi Administration, reported in AIR
1962 SC 1821 on which the learned A.P.P. relied, the Court had
considered the meaning of the word ‘property’ used in Sections
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405 and 409 of the Penal Code. The Court observed that the
word ‘property’ is used in the Penal code in a much wider sense
than the expression ‘movable property’. The Court observed that
there was no good reason to restrict the meaning of the ‘property’
to movable property only. The Court held that whether the
offence defined in a particular section of the Penal Code can be
committed in respect of any particular kind of property will
depend not on the interpretation of the word ‘property’ but on the
fact whether that particular kind of property can be subject to the
acts covered by that section. The learned A.P.P. submitted that in
view of this judgment, the marks earned by the appellant-student
and the mark-sheet issued to him would be a sort of property and
therefore, the offence punishable under Section 420 of the Penal
Code as also 409 of the Penal Code would be attracted. It is not
possible to accept this submission. In the case, which the Supreme
Court was considering, the question was of entrustment that
dominion over funds of Bharat Insurance Company and in that
context the observations came. It cannot be held that the property
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for the purpose of Section 420 or 405 of the Penal Code would be
non-corporeal property. It will have to be either movable or
immovable property or the property which is transferable,
consumable or capable of being spent and not one of the type of
mark-sheet which is intangible, non-transferable or non-
expendable.
51.
The learned Additional Public Prosecutor also placed
reliance on the judgment of the Supreme Court in Anwar Chand
Sub Nandikar Vs. State of Karnataka, reported at (2003) 10 SCC
521 where a property clerk of the Court was prosecuted for
misappropriating the properties belonging to the Court and selling
them to other accused persons. It was contended that only entries
in the books of accounts were made by the appellant and that
there was nothing beyond to show that he was actually acting as a
property clerk. Rejecting this contention the Court held that in
order to sustain conviction under Section 409 of the Penal Code
two ingredients to be proved are :
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(1) the accused, a public servant, or a banker or agent
was entrusted with property of which he is duty-
bound to account for ; and
(2) the accused has committed criminal breach of trust.
52. The Court further observed that the basic requirement
to bring home the accusations under Section 405 of the Penal
Code was to prove conjointly (1) entrustment, and (2) whether
the accused, actuated by the dishonest intention or not,
misappropriated it or converted it to his own use to the detriment
of the persons who entrusted it. The Court further held that the
question of intention is not a matter of direct proof. Applicability
of this judgment is also doubtful, since there is no property which
has been entrusted to the scrutineer. They had been charged with
the duty in relation to the registers which they were supposed to
fill up but that was certainly not the property of any kind.
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53. The University would doubtless take appropriate action
against Shyamrao Kalamkar for his failure to perform his duties
diligently.
54. The learned counsel for appellant Anil Gupta assailed
the direction of the learned Additional Chief Judicial Magistrate
ordering confiscation of marksheet as well as degree awarded to
Anil Gupta. He submitted that such a direction was beyond the
scope of powers of the learned 2nd Additional Chief Judicial
Magistrate.
55. The learned A.P.P. relying on judgment of the Supreme
Court in Ram Preeti Yadav Vs. U.P. Board of High School and
Intermediate Education, reported at (2003) 8 SCC 311 submitted
that once fraud is proved, it will deprive the person of all the
benefits and therefore, the certificate or degree awarded to the
student will have to be cancelled. It was a case of mass copying
and the Court observed that principles of natural justice need not
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be strictly complied. It may be seen that in that case, the Court
was considering action taken by the Board after conducting an
inquiry. The Court was not concerned with the powers of the
criminal Court to cancel the certificate or degree awarded.
56. In view of this, even the order cancelling degree cannot
be sustained.
57.
As a result, the appeals are allowed.
Conviction of the appellants for the offences punishable
under Sections 420, 468, 471, 120-B, 409 read with Section 34,
109 of the Indian Penal Code and sentences imposed upon them
for the said offences are set aside, instead they are acquitted of the
offences charged.
The order cancelling degree awarded to appellant Anil
Gupta is also set aside.
JUDGE
RR
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