CASE NO.: Appeal (crl.) 916 of 1997 PETITIONER: A.S. Krishnan and Anr. RESPONDENT: State of Kerala DATE OF JUDGMENT: 17/03/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J
The appeal presents a strange scenario where the
accusation is that appellant No.2, a doctor doctored
documents so that his son appellant No.1 would get admission
to a medical college and become a doctor. Allegations were
to the effect that they manipulated mark sheets and on the
basis of forged mark sheets he got admission which otherwise
would not have been available to him. The mark sheets
related to the two pre-degree examinations of the Kerala
University conducted in 1978-79 and 1979-80, for two years
i.e. Ist and IInd year respectively. They faced trial with
two others. For the sake of convenience they are described
as A-1 and A-2 and the other two who were acquitted as A-3
and A-4.
Prosecution version as unfolded during trial is
essentially as follows:
A-1 is the son A-2, who was running a nursing home at
Ernakulam during the relevant period and A-4 was an
Assistant Registrar, Examination Wing, Kerala University. A-
1 was a Pre-degree student during the academic years 1978-79
and 1979-80 in the Mar Ivanios College, Thiruvananthapuram,
affiliated to the Kerala University. He appeared for the
first year Pre-degree examination in April, 1979 and for
second year Pre-degree examination in April/May 1980. After
the second year examination, A-1 got following marks as
indicated in the mark list issued by the Mar Ivanios
College:
English : 204/300
Hindi : 109/150
Physics : 127/150
Chemistry : 131/150
Biology : 129/150
Grand total : 700/900Total for the optional subjects, viz. Physics, Chemistry and
Biology was 387 out of 450. The above mark list issued by
the Kerala University to A-1, through Mar Ivanios College,
Thiruvanthapuram was received by both the appellants with
their acknowledgement in the mark lists kept in the college.
As both appellants were aware that the marks secured by the
A-1 were insufficient to get an admission in any medical
college for the first year MBBS course in Kerala on merit,
they entered into a criminal conspiracy along with A-3 and
A-4 on some day between 30.6.1980 and 10.10.1980 for forging
a mark list showing higher marks and pursuant to such
conspiracy A-4 in the case procured a blank mark list of
Pre-degree examination and by fraudulent means and without
the knowledge and authority of the Controller of
Examinations (PW-1) got the impression of the facsimile
signature of PW-1 and the University emblem seal affixed on
the blank mark list form. A-4 wrote in his own handwriting
falsely and fraudulently the following marks in the forms to
have been secured by A-1 in the Pre-degree final year
examination:
English : 204/300
Hindi : 109/150
Physics : 142/150
Chemistry : 140/150
Biology : 138/150
Grand total : 733/900
In addition total of 420 marks out of 450 marks was shown
for the optional subjects, viz. Physics, Chemistry and
Biology. A-4 forged the initials of the concerned section
assistants, who actually prepared the true mark list issued
through Mar Ivanios College and received by A-1 and A-2. A-4
also attested a true copy of the mark list (Ext.P27). He
forged with his designation and seal and entrusted both the
forged mark list and its true copy attested by him (Ext.P27)
to A-1 and A-2. Ext.D-4 is the forged mark list. A-1 and A-2
thereafter prepared an application form for admission to a
medical college during the year 1980-81 with their
signatures by incorporating the marks found in Ext.D-4, the
forged mark list fully knowing the forged nature of Ext.D-4
and forwarded such application together with the attested
true copy Ext.P-27 of Ext. D-4 to the medical college,
Thiruvanthapuram with the fraudulent intention to make the
concerned authorities to believe that the marks shown in the
application are the real marks obtained by A-1 and thereby
cheated the selection committee and obtained admission for
the first year M.B.B.S. course on merit basis. Appellants
with the intention of causing disappearance of the evidence
of commission of the crime destroyed the true genuine mark
list/the true copy of which is marked as Ext.D-8 in this
case received by them from Mar Ivanios College and thus the
appellants and the other acquitted accused committed the
alleged offences. A-3 was an associate of A-2.
Information was lodged with the police. Investigation
was undertaken and on completion thereof charge sheet was
filed indicating commission of offence punishable under
Sections 120B, 466, 468 and 471 of the Indian Penal Code,
1860 (in short the ‘IPC‘) read with Section 34 IPC. The case
was tried by the Special Court for trial of Mark list Cases,
Trivandrum. Sixty three witnesses were examined and 65
documents were marked. The accused persons pleaded
innocence, examined one person as DW-1 and exhibited
documents. The trial Court found that the accusations were
established so far as A-3 and A-4 were concerned. It held
the appellants A-1 and A-2 guilty of offences punishable
under Sections 471, 420, 120B and 201 read with Section 34
IPC and sentenced to suffer imprisonment for one year and
two years for the offence under Sections 471 and 420
respectively and six months each for the charge under
Section 120B and 201 read with Section 34 IPC. The accused
appellants were acquitted of the charges of the offence
under Sections 467 and 468 IPC. By the impugned judgment the
High Court found that the conviction was in order so far as
the offences relatable to Sections 471, 420 read with
Section 34 were concerned, but set aside the conviction for
the offences punishable under Sections 120B and 201 IPC.
Custodial sentence was reduced to three months each for the
offences punishable under Section 471 and 420 read with
Section 34 IPC.
In support of the appeal Mr. U.R. Lalit, learned senior
counsel submitted that after the acquittal of A-3 and A-4
who were primarily alleged to be responsible for the
forgery, conviction cannot be maintained so far as the
appellants are concerned. A-4 had given not only the alleged
forged mark sheet but also himself attested a copy thereof.
There was no reason for the present appellants to suspect
the correctness thereof. There was specific charge of
conspiracy relating to forged mark sheet and to commit an
illegal act. The forgery was alleged so far as A-4 is
concerned. Sections 463 to 471 require as an essential
ingredient the existence of a forged document and use
thereof. It cannot be said that the document in question is
a forged document. The father (appellant No.2) took a
document from A-4 and handed it over to A-1 who used it. The
son (A-1) could not have entertained doubt that the document
handed over to him by the father was a forged one. Unless
there is conspiracy or common intention, Section 34 would
have no application. Even in the instant case, charge of
offence punishable under Section 201 was set aside and there
was acquittal of the charges relatable to Sections 467 and
468. The document cannot be said to be a forged one and when
charges of forgery were not established, there was no
question of a forged document being there. On hypothetical
basis the High Court has proceeded to conclude that the
document was forged as it attributed knowledge of the
forgery and manipulation of the documents to the appellant.
All non-genuine documents are not forged. They must be
covered by the conditions indicated in Sections 463 and 464.
There is no mens rea involved. Unless the part allegedly
played by A-4 is established, there cannot be a forged
document. The prosecution has failed to prove the minimum
requirements of law. It is a case of prosecution having not
proved its case. Even if it is assumed that the document was
forged, A-1 cannot be said to have knowledge or to have used
it fraudulently or dishonestly. There must be a reason to
believe that it was a forged one. The expression ‘reason to
believe’ is defined in Section 26 IPC. When the facts of the
case in the background of Section 26 are noted, it cannot be
said that the appellants had reason to believe that the
document was forged. The expression used is ‘reason to
believe’ and not ‘reason to suspect’ which are conceptually
different. When the documents were handed over by A-4, there
was no scope for either A-2 or A-1 entertaining any doubt,
because the source from which the document came is that of
Assistant Registrar who is authorised to issue the
certificate. The criminal intent is totally eliminated by he
factual scenario. The natural reaction would have been to
believe the document to be correct. No knowledge can be
attributed to A-1 when the forgery or alleged conspiracy is
not established. When charge of conspiracy has been not held
to be proved, the knowledge cannot be traced to the accused
persons. Since no conspiracy has been found in A-1 and A-2,
by necessary implication Section 34 is eliminated. Even
otherwise, the incident took place more than quarter of a
century back when A-1 was a student and aged about 17 years,
and this is a fit case for extending the benefit under the
Probation of Offenders Act 1958, (in short the ‘Probation
Act‘).
In response, learned counsel for the State submitted
that clean and cogent evidence show that the actual mark
sheets were received by appellant no.1 from the college.
There is no evidence to show that he had applied for re-
valuation for the second year. The procedure to be adopted
for seeking re-valuation is admittedly known to the
appellant, because A-1 had applied for the previous year.
The result on revaluation was communicated so far as first
year is concerned. The High Court has analysed the evidence
to show that as required in the declaration form A-2 had
signed the application. Therefore, it cannot be said that
neither A-1 nor A-2 had any knowledge about the forgery. It
has been conceded before the High Court that Exh.D-4 was a
forged document. Even if A-3 and A-4 have been acquitted
and/or conspiracy has not been established, charge under
Section 471 does not get affected.
Certain factual aspects need to be noted in the present
case. Though criticism was levelled against the analysis
made by the High Court to find out how on the basis thereof
it was held that the document was forged one, we find no
substance therein. It was clearly conceded before the High
Court that D-4 was a forged document. What was urged before
the High Court was that even if it is forged, the appellants
had not used it deliberately or intentionally as a forged
document. A comparison of the mark sheet filed by A-1 with
the marks register shows great variance. The High Court has
noticed that the appellants had asked for revaluation of the
first year pre degree answer sheets as they were not
satisfied with the marks shown in the mark list and claiming
that A-1 should have obtained more marks. Evidence was let
in by the prosecution to indicate that in Part II
Examination, optional subjects are there and the subjects
are Physics, Chemistry and Biology and the maximum one can
get in one of the above optional subjects is 150 marks and
45 marks were required to be obtained to pass. Part I
consists of English and language other than English. As
noticed by the High Court, Part II (optional subjects) each
subject consists of Paper I, Paper II and practical. The
examination for Paper I is conducted in the first year,
where A-1 appeared in 1979. Paper II is written in the
second year of the course and A-1 undisputedly appeared in
the year 1980. The total marks of 150 are split as follows:
Paper I (Ist year) 40 marks
Paper II (2nd year)60 marks
Practicals 50 marksIt has not been disputed by the appellants that the marks
obtained by A-1 in the first year for Paper I were known.
What they had done was to ask for revaluation. A-1 had
obtained 24, 33 and 35 marks in Physics, Chemistry and
Biology (as evidenced by Ext. P2). There is no provision for
seeking revaluation for practical examination and it is only
restricted to theory papers. Unless one knows the marks
secured in a particular examination, the question of seeking
revaluation does not arise. Though a claim was made that the
result of revaluation was not known so far as Ist year is
concerned, the evidence on record clearly proves to the
contrary. In the communication relating to results of
revaluation it had been clearly indicated that there was no
change in the marks. Obviously, the marks shown in excess of
the actual in Exh.D-4 can be related to Paper II. The excess
marks are 33, i.e. 15, 9 and 9 in Physics, Chemistry and
Biology respectively. As per Exh. D-4 the marks indicated
are 142, 140 and 138 for the aforesaid three subjects. The
High Court has taken pains to analyse that for the second
year in respect of Paper II the maximum marks are 60 in the
aforesaid three subjects. If by way of illustration, Physics
marks are taken, originally before revaluation the mark
secured by A-1 was 55 and if excess 15 marks are added to
it, as the allegedly forged document shows the total comes
to 70 marks. If the total marks for a paper are 60, there
cannot be even a shadow of doubt that A-1 could not have
secured 70 marks. Similar is the case of Biology, where the
marks would be 61 against a total maximum marks of 60. Of
course in Chemistry 59 marks are shown as against maximum 60
marks. If a student gets cent percent marks in paper II in
each subject the total would come to 180, whereas on the
basis of D-4 it comes to 190. This impossible difference
would have attracted notice of A-1 and A-2. They are not
illiterate persons. As claimed by learned counsel for the
appellants, A-1 was a brilliant student and A-2 was a
reputed doctor and that they would miss this simple aspect
in mark list is not only possible, to believe, but also
would be against normal human experience. The High Court
also on the basis of evidence tendered by PW-60, came to
conclude that in the first year for Paper I the total marks
secured by A-1 was 92 and practical marks were 138. Even if
it is conceded for the sake of arguments, as submitted by
learned counsel for the appellant, that A-1 secured cent
percent marks in Paper II the total marks would have come to
92+138+180 which would make a total of 410, and not 420 as
Ext.D-4 shows.
Another interesting feature has been noticed by the
High Court to show how it would have been impossible for A-1
and A-2 to overlook something tainted appearing to even
naked eyes. Exh.D-4 is dated 30.6.1980. It was not disputed
before the High Court that the results were published for
the first year degree course on 30.6.1988. If the results
were published on 30.6.1980, Exh.D-4 which is purported to
have been drawn up after revaluation could not have
indicated a date seal of 30.6.1980. These factors clearly go
to show that A-1 and A-2 had sufficient knowledge that there
was forgery and they had used the document knowing it to be
forged. The pretended ignorance stood belied and self
condemned on the indisputable materials on record. The plea
of innocence as presently advanced has no substance.
The essential ingredients of Section 471 are (i)
fraudulent or dishonest use of document as genuine (ii)
knowledge or reasonable belief on the part of person using
the document that it is a forged one. Section 471 is
intended to apply to persons other than forger himself, but
the forger himself is not excluded from the operation of the
Section. To attract Section 471, it is not necessary that
the person held guilty under the provision must have forged
the document himself or that the person independently
charged for forgery of the document must of necessity be
convicted, before the person using the forged document,
knowing it to be a forged one can be convicted, as long as
the fact that the document used stood established or proved
to be a forged one. The act or acts which constitute the
commission of the offence of forgery are quite different
from the act of making use of a forged document. The
expression ‘fraudulently and dishonestly’ are defined in
Sections 25 and 24 IPC respectively. For an offence under
Section 471, one of the necessary ingredients is fraudulent
and dishonest use of the document as genuine. The act need
not be both dishonest and fraudulent. The use of document as
contemplated by Section 471 must be voluntary one. For
sustaining conviction under Section 471 it is necessary for
the prosecution to prove that accused knew or had reason to
believe that the document to be a forged one. Whether the
accused knew or had reason to believe the document in
question to be a forged has to be adjudicated on the basis
of materials and the finding recorded in that regard is
essentially factual.
Under the IPC, guilt in respect of almost all the
offences is fastened either on the ground of “intention”
or “knowledge” or “reason to believe”. We are now
concerned with the expressions “knowledge” and “reason to
believe”. “Knowledge” is an awareness on the part of the
person concerned indicating his state of mind. “Reason to
believe” is another facet of the state of mind. “Reason to
believe” is not the same thing as “suspicion” or “doubt”
and mere seeing also cannot be equated to believing.
“Reason to believe” is a higher level of state of mine.
Likewise “knowledge” will be slightly on higher plane than
“reason to believe”. A person can be supposed to know
where there is a direct appeal to his senses and a person is
presumed to have a reason to believe if he has sufficient
cause to believe the same. Section 26 IPC explains the
meaning of the words “reason to believe” thus:
26 – “Reason to believe”: A person is said to have
‘reason to believe’ a thing, if he has sufficient cause to
believe that thing but not otherwise.”
In substance what it means is that a person must have
reason to believe if the circumstances are such that a
reasonable man would, by probable reasoning, conclude or
infer regarding the nature of the thing concerned. Such
circumstances need not necessarily be capable of absolute
conviction or inference; but it is sufficient if the
circumstances are such creating a cause to believe by chain
of probable reasoning leading to the conclusion or inference
about the nature of the thing. These two requirements i.e.
“knowledge” and “reason to believe” have to be deduced
from various circumstances in the case. (See Joti Parshad v.
State of Haryana (AIR 1993 SC 1167)
As noticed by the High Court in great detail, the
factual position leaves no manner of doubt that the accused
appellants had not only the knowledge, but also had reason
to believe that the document was a forged one before they
used it.
Acquittal of some of the co-accused from the charge of
conspiracy cannot really affect the accusations under
Section 471 IPC. In Madan Lal v. The State of Punjab (AIR
1967 SC 1590) two persons were tried for alleged commission
of offences punishable under sections 409, 465, 477-A and
120B IPC. Though the accusations under Section 120B were set
aside, the High Court confirmed the conviction under Section
409 simpliciter. A contention was raised before this Court
that if the charge relating to criminal breach of trust was
along with the charge of conspiracy, conviction simpliciter
for criminal breach of trust would not be valid. This Court
held that if the charge of conspiracy is followed by
substantive charge of another offence there is nothing to
prevent the Court convicting an accused for the substantive
charge even if the prosecution had failed to establish
conspiracy. Looked at from any angle the judgment of the
High Court does not suffer from any infirmity to warrant
interference.
So far as the question of sentence is concerned, we
find that the High Court has already taken a liberal view so
far as A-2 is concerned. In a case when students use forged
mark sheets to obtain admission thereby depriving eligible
candidates to get seats and that too to a medical course and
a doctor is involved in the whole operation, uncalled for
leniency or undue sympathy will be misplaced and actually
result in miscarriage of justice. Such types of crimes
deserve as a matter of fact, deterrent punishment in the
larger interests of society. If at all, the case calls for
severe punishment. We find no substance in the plea relating
to sentence or extending the benefits of the Probation Act.
The appeal fails and is dismissed.
