1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Appeal No.25 of 2007
With
Criminal Appeal No.28 of 2007
Criminal Appeal No.25 of 2007
Shri Prabhakar s/o Gangadhar Hejib,
Aged about 73 years,
Occupation : Retired,
R/o 160, Bajiprabhu Nagar,
Nagpur. ... Appellant
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi, Nagpur. ... Respondent
S/Shri S.S. Voditel and P.P. Kotwal, Advocates for Appellant.
Shri S.S. Doifode, Additional Public Prosecutor for Respondent.
Criminal Appeal No.28 of 2007
Laxmikant s/o Shankarrao Zade,
Aged about 31 years,
Occupation : At present Nil,
R/o Plot No.317,
Jawaharnagar, Nagpur.
(Presently lodged at Central Prison,
Nagpur). ... Appellant
Versus
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State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
Nagpur. ... Respondent
Shri J.M. Gandhi, Advocate for Appellant.
Shri S.S. Doifode, Additional Public Prosecutor for the Respondent.
CORAM : R.C. Chavan, J.
Date of Reserving the Judgment : 19-1-2009.
Date of Pronouncing the judgment : 3-2-2009
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.374 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.194 of 1999 was registered on
24-3-1999 on the complaint of Shri Prakash Mistry. Two other
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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. 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 Laxmikant Zade in Criminal Appeal No.28 of
2007, who was accused No.1 before the Court, was a student, who
had appeared at Part I of BE Examination in Winter 1998. He
failed in some of the subjects at the said examination. The Nagpur
University permitted revaluation of answer books in terms of
Ordinance No.159 at the instance of such failed candidates.
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Therefore, accused No.1 Laxmikant Zade applied for revaluation
of his papers of Physics and Electrical Engineering 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 appointment of
tabulators, scrutineers, etc., and their respective roles.
ig 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.
5. The practice, which was followed by the University
officials for such revaluation has been deposed to by PW 2
Narayan Ghatole, an employee of the University in the
Revaluation Section. According to him, after a candidate applied
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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. ig 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
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
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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
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
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the marks on the answer sheets itself. These examiners were
provided with “revaluation sheets”. 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
sake of easy reference, they would be hereinafter refered 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.
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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
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
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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
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
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same set of scrutineers.
11. Accused No.2 Madhukar Smarth and accused No.3
Prabhakar Hejib were the pairs of scrutineers, who were entrusted
with the task of entering marks of accused No.1 Laxmikant Zade
in the RTR as well as the FTR. Accused No.4 Shyamrao Kalamkar
was the Assistant Register, Incharge of Revaluation Section at the
relevant time.
12. In this case, Laxmikant Zade, accused No.1, had initially
secured 17 marks each out of 80 in the subjects of Physics and
Electrical Engineering. He applied for revaluation. Examiner-I for
the subject of Electrical Engineering had assigned him 3 marks
and Examiner-II had assigned 5 marks, thus average of marks
came to 4. This was rightly recorded in the RTR. It was also
mentioned in the column of average that the average marks
were 4 and the result was shown in Column No.(XII) as adverse
change. These marks were then changed to 25 and 26 with
average as 26 in Column No.(XI) of the RTR. In the FTR also,
original 17 marks had been initially changed to 4, showing the
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total of 18 after adding up 14 marks of practicals. These figures
were scored and the marks obtained in theory were shown as 26,
and the total was changed to 40.
13. In the subject of Physics, the marks obtained by the
student upon revaluation were 28 and 29 about which there
appears to be no dispute.
14. It is the case of the prosecution that accused No.1
Laxmikant Zade approached accused Nos.2 to 4 in order to get his
marks changed and accused Nos.2 to 4 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
further alleged that accused No.1 Laxmikant Zade used the said
falsely prepared mark-list for getting admission to higher class, i.e.
BE IInd Year. It was, therefore, alleged that accused No.1 had
committed offence punishable under Section 420 of the Penal
Code; accused Nos.2 to 4 had committed offences punishable
under Sections 468 and 471 read with Section 34 of the Penal
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Code, and all the accused persons had committed offences
punishable under Sections 420, 468 and 471 read with Section
109 of the Penal Code.
15. In course of investigation, the Investigating Officer
secured the necessary record from the University, recorded
statements of witnesses, had the disputed and admitted
handwriting sent to the Examiner of Questioned Documents, State
CID, Pune, and after getting an opinion from the said Expert, and
finding that the accused persons were involved in the
aforementioned offences, chargesheeted them.
16. The learned Chief Judicial Magistrate, Nagpur, charged
the appellants, as also the original accused No.2 Madhukar
Smarth and accused No.4 Shamrao Kalamkar, of offences
punishable under Sections 420, 468 and 471 read with Sections
34 and 109 of the Penal Code. It appears that subsequently
charge of offences punishable under Section 120-B and 409 of the
Penal Code was also added. They pleaded not guilty to the said
charge and hence were put on trial, at which the prosecution
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examined in all 10 witnesses in its attempt to bring home the guilt
of the accused. They are : PW 1 Gangaram Meshram was the
Assistant Register (Revaluation) from June 1999 (i.e. after the
offence was noticed), PW 2 Narayan Ghatole was serving as
Senior Grade Clerk in the Revaluation Section from the year 1995,
PW 3 Uday Gadkari was Principal of the College where accused
No.1 Laxmikant Zade was studying, PW 4 Prof. Kalyan
Veeramanja and PW 5 Prof. Shivzanna Devru serving in
Jayachamerajendra College of Engineering, Mysore revalued the
papers, PW 6 Deorao took over as the Controller of Examinations
in the year 1999 and had sent a report dated 16-7-1999 to the
police, PW 7 Vishwas Rajangaonkar, the State Examiner of
Questioned Documents had examined the questioned documents
in these cases, PW 8 Shri Jageshwar Saharia was acting as Vice
Chancellor and claimed to have accorded sanction for prosecution
of the University employees involved in the scam, PW 9 API
Laxman Khobragade registered the offence, and PW 10 PSI Anil
Lokhande, the Investigation Officer.
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17. After considering the evidence tendered before him, the
learned 2nd Additional Chief Judicial Magistrate, Nagpur, who
eventually tried the case, held that the charges against accused
No.2 Madhukar Smarth and accused No.4 Shamrao Kalamkar
were not proved and acquitted them. The State has not preferred
any appeal against their acquittal. He held accused No.1
Laxmikant Zade and accused No.3 Prabhakar Hejib guilty and
convicted and sentenced them as under :
(a) For offence punishable under Section 420 read
with Sections 34 and 109 of the Penal Code, they
were sentenced to rigorous
imprisonment for four years and fine of
Rs.15,000/- each, or in default RI for two months.
(b) For offence punishable under Section 468 read
with Sections 34 and 109 of the Penal Code, they
were sentenced to rigorous imprisonment for three
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years and fine of Rs.10,000/- each, or in default RIfor one month.
(c) For offence punishable under Section 471 read
with Sections 34 and 109 of the Penal Code, they
were sentenced to rigorous imprisonment for one
year and fine of Rs.5,000/- each, or in default RI
for one month.
(d) For offence punishable under Section 120-B of the
Penal Code, rigorous imprisonment for six months
and fine of Rs.2,000/- each.
18. In addition, accused No.3 was convicted and sentenced
to suffer rigorous imprisonment for four years and fine of
Rs.15,000/-, or in default RI for two months for offence
punishable under Section 409 of the Penal Code.
19. The learned counsel for original accused No.3
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Prabhakar Hejib submitted that the Investigating Officercommitted gross error in taking cognizance of the matter without
there being a report from the competent authority. He submitted
that the Investigating Officer had no business to suo motu take
cognizance of an alleged offence, which had not been referred to
him by the authorities under the Maharashtra Universities Act.
The FIR in this case is at Exhibit 83. It is filed by Dr. Prakash
Mistry, who was the Controller of Examinations. This was in
respect of mark-lists/degrees of four students, namely Philip
Verghese, Bharadwaj Girdhar, Md. Ghouse Irshad and D. Sameer
Kumar, which were found to be forged. On this report, Crime
No.346 of 1999 was registered at Police Station Sitabuldi. The
learned counsel for the appellant pointed out that this report does
not make any reference to appellant Laxmikant Zade or any
malpractice in respect of result of said Laxmikant Zade.
20. The learned counsel submitted that Section 18 of the
Maharashtra Universities Act defines the duties of Controller of
Examinations. Clause (e) of sub-section (3) of the said Section
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empowers the Controller of Examinations and vests him with theresponsibility to postpone or cancel examinations, in part or in
whole, in the event of malpractices, or, if the circumstances so
warrant, and take disciplinary action or initiate any civil or
criminal proceedings against any person or a group of persons, or
a college, or an institution, alleged to have committed
malpractices. Section 32 of the Maharashtra Universities Act
enumerates powers and duties of the Board of Examinations in
respect of the University examinations. In view of clause 5(b) of
the said Section, the Controller of Examinations acts as Secretary
of the Board. Clause 6(a) of the said Section empowers the Board
of Examinations to constitute a committee of not more than five
persons to investigate into and to take disciplinary action for,
malpractices or lapses on the part of candidates, paper-setters,
examiners, moderators, referees, teachers or any other persons
connected with the conduct of examinations including the
pre-examination and post-examination stages. Clause (b) of sub-
section (6) requires such committee to submit its report and
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recommendations to the Board of Examinations, which is expectedto take disciplinary action in the matter as it deems fit.
21. The learned counsel submitted that if any malpractice
in respect of examination at which Laxmikant Zade appeared was
noticed, it ought to have been investigated by a committee
constituted under Section 32(6)(a) and report of such committee
ought to have been considered by the Board of Examinations
under Section 32(6)(b). Only thereafter, the Controller of
Examinations, as Secretary of the Board, would have been entitled
to report the matter to police. He submitted that these provisions
of the Maharashtra Universities Act override the provisions
pertaining to taking cognizance, which are generally applicable to
crimes. For this purpose, he relied on a number of decisions,
namely, Ratan Lal Adukia v. Union of India, reported at (1989) 3
SCC 537, State of M.P. v. Kedia Leather & Liquor Ltd. and others,
reported at (2003) 7 SCC 389, Maharashtra State Board of
Secondary and Higher Secondary Education and another v. Paritosh
Bhupeshkumar Sheth and others, reported at (1984) 4 SCC 27,
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reported at (1988) 2 SCC 271, Jasbir Singh v. Vipin Kumar Jaggi
and others, reported at (2001) 8 SCC 289, Gaziabad Zila Sahkari
Bank Ltd. v. Additional Labour Commissioner and others, reported
at (2007) 11 SCC 756, U.P. State Electricity Board v. Banaras
Electric Light and Power Co. Ltd., reported at (2001) 7 SCC 117,
Kunwar Pal Singh (Dead) by LRs. v. State of U.P. and others,
reported at (2007) 5 SCC 85, and Home Secretary, U.T. of
Chandigarh and another v. Darshjit Singh Grewal and others,
reported at (1993) 4 SCC 25.
22. The refrain of the learned counsel for accused No.3 is
that a special procedure is prescribed by the Maharashtra
Universities Act, which is irreconcilable with the procedure for
taking cognizance by police and, therefore, Section 18(3)(e) of the
Maharashtra Universities Act completely repeals the provisions of
Section 190 of the Code of Criminal Procedure. According to him,
in view of the decisions referred to above, since there is a direct
conflict between the two provisions and since it is clear that the
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Legislature intended to lay down an exhaustive code formalpractices at University examinations, and since the two laws
occupy the same field, there is an implied repeal of the provisions
of Section 190 of the Code of Criminal Procedure by the
provisions of Section 18(3)(e) of the Maharashtra Universities Act.
He further submitted that when a special enactment provides a
special procedure, it would prevail over the general law contained
in the Code of Criminal Procedure. Therefore, the learned
Magistrate could not have taken cognizance on a report by police
in respect of alleged fraudulent preparation of documents, and
that cognizance of such offence could have been taken only upon
a complaint to Magistrate by authorized officer, namely Controller
of Examinations. For this purpose, he relied on judgment in State
of Kerala v. V.P. Enadeen, reported at AIR 1971 Kerala 193.
23. In Union of India and others v. L.D. Balam Singh,
reported at (2002) 9 SCC 73, relied on by Advocate Shri Voditel, it
was held in the context of a court marshal that if the court
marshal was in relation to an offence punishable under the NDPS
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Act, safeguards contained in the said Act could not be diluted.The learned counsel, therefore, submitted that safeguards in the
Maharashtra Universities Act prescribing an enquiry before
criminal action could be initiated would have to be applied to the
present case.
24. In State Inspector of Police, Vishakhapatnam v. Surya
Sankaram Karri, reported at 2007 ALL MR (Cri) 555, the Supreme
Court held that the requirement of an authorization by a
Superintendent of Police in favour of an officer for conducting
investigation into an offence under Section 17(1)(e) of the
Prevention of Corruption Act was of a mandatory character and
the burden was on the prosecution to prove that the investigation
was carried on by the proper authority.
25. The learned APP contested this proposition. He
submitted first, that there is no question of the provisions of
Section 18(3)(e) of the Maharashtra Universities Act operating in
the same field or occupying the same field as Section 190 of the
Code of Criminal Procedure. Section 190 of the Code of Criminal
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Procedure pertains to taking cognizance by Criminal Courts. Itdoes not lay down the procedure to be followed by a complainant
in the position of Controller of Examinations before a complaint is
filed. He further submitted that Section 18(3)(e) of the
Maharashtra Universities Act empowers the Controller of
Examinations to initiate civil or criminal proceedings. This does
not imply that criminal proceedings must be initiated only by a
complaint to Magistrate and not by making a report to police.
26. I have carefully considered the rival contentions. It may
be seen that Section 18(3)(e) of the Maharashtra Universities Act
read with Section 32 of the said Act, which provides for an
enquiry by a Committee and a report to the Board of
Examinations, do not necessarily exclude a report by the
University authorities to the police or investigation by the police
into such complaints. It may be seen that Section 18(3)(e) does
not restrict the powers of a Criminal Court to take cognizance
upon a police report by prescribing that cognizance shall not be
taken unless the steps contemplated by the Maharashtra
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Universities Act are first taken. Therefore, since the relevantprovisions of the Maharashtra Universities Act and those under the
Code of Criminal Procedure occupy different fields and control
different aspects, there is no conflict and, therefore, no implied
repeal. Consequently, there is no warrant for holding that the
Controller of Examinations was not entitled to approach the police
or police was not entitled to investigate or to file a report or that a
Magistrate was not entitled to take cognizance on such a report.
The contention of the learned counsel for the appellants that when
a special law prescribes a special procedure, it eclipses general
provisions, is unexceptionable, but it has to be noted that the
Maharashtra Universities Act does not prescribe any special
procedure for carrying out investigation into the complaints about
offences concerning the University examinations or for enquiries
or trials for offences arising therefrom. Section 18(3)(e) of the
Act on which much emphasis has been laid, is only an enabling
provision, which would enable the Controller of Examinations to
initiate criminal proceedings. Therefore, since there is no special
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procedure prescribed for investigation or trial of offences relatingto examinations and since the procedure prescribed is only in
relation to conducting an internal enquiry for the purpose of
enabling the University authorities to decide appropriate course of
action, it cannot be said that the report could not have been made
by the Controller of Examinations.
27. Reliance on judgment of the Supreme Court in P.
Sirajuddin etc v. The State of Madras etc, reported at AIR 1971 SC
520, regarding necessity of a preliminary enquiry before lodging
FIR against a public servant charged of serious misconduct, is
misplaced. In that case, the Court considered the necessity of a
preliminary enquiry into the allegations against a person holding a
top position in the department by a responsible officer, since
lodging of a report on baseless allegations would do incalculable
harm not only to the officer but to the department he belonged to.
There can be no doubt that when a department decides to lodge a
report, it must first satisfy itself about existence of ingredients of
crime, which is sought to be reported. In this case, it has to be
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seen that Dr. Prabhakar Mistry did not file a report particularlyagainst appellant Prabhakar Hejib. As already recounted, his
report was in respect of four students and University employees.
The names of appellants Prabhakar Hejib and Laxmikant Zade
were not even mentioned in the report. The complicity of the
appellants came to light when the Investigating Officer and the
University authorities started examining the University record
once a fraud had come to light. Since the learned counsel for the
appellants could not show any rule of law, either in the form of
enactment or a judgment holding the field, for the proposition
that a police officer is obliged to shut his eyes and fold his arms
even after coming to know that a cognizable offence has taken
place till somebody wakes him up by filing a report, the action by
the Investigating Officer in investigating into the complicity of the
present appellants cannot be faulted. However, he should have
followed the procedure of registering a separate crime,
investigating it independently and filing a separate final report in
respect of each malpractice. In view of this, the objections of the
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appellants on the ground of first, lack of competence inDr. Prakash Mistry to make a report and secondly, absence of
names of the appellants in the said FIR, cannot be upheld.
28. The learned counsel for accused No.3 next submitted
that accused No.3 Prabhakar Hejib was appointed as Scrutineer by
the University. He was not directly an employee of the University.
Yet, since he was appointed as Scrutineer, he could not have been
prosecuted without the sanction from the authority competent to
appoint him. He submitted that PW 8 Shri Jageshwar Saharia,
who was given an additional charge of the post of Vice Chancellor
of Nagpur University at the relevant time, had stated that
permission had been asked from him to prosecute, among others,
Prabhakar Hejib. He stated that he had not granted permission in
respect of Prabhakar Hejib and others, who were not University
employees and had granted permission in respect of Dr. Prakash
Mistry, Yadav Kohchade, Hemant Thakre, Shamrao Kalamkar, and
Dinkar Ingle, who were not the employees of the University. He
proved a communication to this effect by the Registrar of the
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University, Dr. S.S. Dara, who is no more. The learned counsel foraccused No.3 submitted that if the Vice Chancellor was not an
appointing authority in respect of Prabhakar Hejib, he was also
not an appointing authority in respect of Hemant Thakre, the
accused in another case, who was the elected Dean of Engineering
Faculty and not appointed by the Vice-Chancellor.
29. The learned APP submitted that Section 10 of the
Maharashtra Universities Act enumerates the officers of the
University and Deans of Faculties are included in this
enumeration, and that such is not the case of Scrutineers. It is
difficult to contemplate that because persons performing duties in
the University in connection with the examination are actually
employees of the affiliated Colleges, they cease to be public
servants in respect of duties which they perform in the University.
However, this question need not detain the Court since the
conduct attributed to the scrutineer in this case is not one, which
he could be said to have performed in course of his duty, but one
which amounts to subversion and a criminal activity. Therefore,
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the question as to whether the sanction from the Vice Chancellorwas necessary or whether it was at all given or given after
appropriate application of mind, are not relevant.
30. Coming to the evidence, PW 3 Uday Gadkari, Principal
of Priyadarshini College, Nagpur, stated that Laxmikant Zade was
a student of his College. Laxmikant Zade appeared for BE Part I
Examination in Summer 1998 and failed.
ig He applied for
revaluation in English and Social Science, which were cleared in
revaluation. Laxmikant Zade again appeared for BE Part I
Examination in Winter 1998 and since he failed again, he applied
for revaluation of Physics theory and Electrical Engineering theory
papers, which he cleared in revaluation. On the basis of this result
of revaluation, Laxmikant Zade was eligible for admission to BE
IInd Year, since he was allowed to keep terms having cleared ten
out of fifteen subjects. He applied for admission for BE IInd Year
Course annexing the mark sheets after revaluation showing that he had
cleared the subjects of Physics theory and Electrical Engineering theory. The
admission form and the mark sheets were proved by Shri Gadkari,
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29
which are at Exhibits 41 and 42. Laxmikant Zade then appearedfor BE IInd Year Examination, but failed, as could be seen from
the copy of the FTR, which is at Exhibit 43.
31. The learned counsel for appellant Laxmikant Zade
submitted that PW 3 Uday Gadkari brought and was allowed to
prove documents which were given to accused after the
examination-in-chief was over. This was thoroughly undesirable.
However, since the appellant had an opportunity to cross-examine
the witness thereafter, it cannot be held that the appellant was
prejudiced
32. Laxmikant Zade had admitted in his statement under
Section 313 of the Code of Criminal Procedure that he had
appeared for the two out of six papers from Priyadarshini College.
The cross-examination of Shri Gadkari on behalf of appellant
Laxmikant Zade does not show that Laxmikant Zade had disputed
his having appeared for BE Part I Examination, and having failed
thereat, having applied for revaluation, and having been cleared
in two subjects and having applied for admission to BE Part II on
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30
the basis of revaluation result, since he was allowed to keepterms. Thus, these aspects cannot be taken to be disputed.
33. The learned counsel for the appellant submitted that
merely because the appellant applied for revaluation and was
declared to have cleared two subjects at revaluation, it does not
follow that he had indulged in any malpractice.
34. 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 had stated in his deposition that the revaluation
sheets by Revaluators 1 and 2 used to be sent along with
revaluation tabulation register to the Scrutineers. The Scrutineers
used to work in team of two. On the basis of R1 and R2 sheets,
one of the Scrutineers used to dictate the marks obtained in the
revaluation and the other Scrutineer used to note down the marks
in the tabulation register. Laxmikant Zade had originally secured
17 out of 80 marks in the paper of Electrical Engineering. He had
secured 14 out of 20 marks in the sessional examination. Thus the
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31
total marks obtained were 31 out of 100. Since the marksrequired for passing were 40, Laxmikant Zade had failed. On his
application for revaluation, the answer books were sent to the
Revaluators.
35. Revaluator 1 K.T. Veeramanja was examined was
PW 4. He stated that he had received the answer paper of BE Ist
Year Electrical Engineering Winter 1998 Examination bearing
Code No.1015 for revaluation. After assessment of the paper, he
allotted 3 marks to the candidate. He proved R1 sheet, which was
in his handwriting at Exhibit 16. On the basis of Code No.1015
printed on the answer sheet, he stated that Exhibit 25 may be the
answer sheet evaluated by him. PW 4 Professor Veramanja was
cross-examined as to whether he could say that Exhibit 16 was the
same sheet which had gone to the scrutineers for the purpose of
entering marks in the RTR. Obviously, PW 4 Veeramanja could
not have stated as to which sheet was handed over to the
Scrutineers for the purpose of entering marks.
36. PW 5 Shivanna also likewise stated that he had
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32
examined the paper bearing Code No.1015 and stated that he hadallotted 5 marks to the candidate as per R2 sheet at Exhibit 17,
which he proved to be in his handwriting. He could not state as to
when R2 sheet was prepared, but denied in cross-examination that
he had prepared the sheet at the Police Station in the year 2001.
He admitted that his specimen signatures were not obtained by
the Nagpur University.ig
37. PW 1 Gangaram further stated that after receiving the
sheets, they were handed over to the Scrutineers as per the
prescribed procedure. In the RTR, initially 3 and 5 marks were
entered against the name of Laxmikant Zade in his paper of
Electrical Engineering. Those marks were then scored out and 25
and 26 marks were entered. Average marks were changed to 26
from 4, and the percentage change was shown at 12%. Initially in
the remark column, the change was shown to be adverse by
adding the letters ‘Ad’. But these letters were cut. In the FTR also,
the four marks upon revaluation were changed to 26 and initial
total of 18 was changed to 40, and thus the candidate was shown
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33
to have passed in that subject.38. PW 1 Gangaram Meshram also stated about the change
in marks in the subject of Physics, where 28 and 29 marks were
shown to have been entered in R1 and R2 columns with average
of 29 marks. Marks for sessional assessment were 12. In the
FTR, original marks 17 were changed to 29 and after adding 12
marks of sessional assessment, total 41 marks were shown to have
awarded.
39. PW 2 Narayan Ghatole had also stated about the change
in marks. He stated that the change in the subject of Physics was
in the handwriting of accused No.2 Madhukar Smarth. Change
and percentage of increase or decrease were shown to be in the
handwriting of accused No.3 Prabhakar Hejib. In respect of
subject of Electrical Engineering, originally 3, 5 and 4 marks were
entered in the RTR in the handwriting of accused No.2 Madhukar
Smarth along with adverse change. They were changed to 25, 26
and 26 by accused No.3 Prabhakar Hejib under his signature. He
stated that in the FTR also, the changes are in the handwriting of
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34
accused No.3 Prabhakar Hejib. In the FTR, initial total of 473 wasscored out and some figure like 400 was written, which was not
clear and it was then changed to 494 in the handwriting of
accused No.3 Prabhakar Hejib.
40. PW 2 Narayan Ghatole had stated that since he was
working in Revaluation Section and since there were only six
Scrutineers, he had the occasion to see their handwritings and
signatures frequently and, therefore, could identify the signatures
and handwritings of all the six Scrutineers. Thus he identified the
handwritings of accused No.2 Madhukar Smarth and accused No.3
Prabhakar Hejib on account of his having seen their handwritings.
It has, however, to be noted that he does not state that he had
actually seen Prabhakar Hejib making the changes in marks of
Laxmikant. His conclusions are inferential, on the basis of his
being conversant with writing of Prabhakar. It is an opinion
expressed on the basis of photographic similarity. Therefore, it
could be relied on if corroborated by an Expert’s examination, but
may not, in itself, be conclusive of the matter.
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3541. PW 6 Deorao Kumbhare was the Controller of
Examinations. He stated having furnished requisite
information/documents to the Police.
42. PW 10 PSI Lokhande had conducted investigation in the
matter. He stated in para 5 of his deposition about change of
marks in the case of Laxmikant Zade. By panchanama Exhibit 15,
he claims to have seized 168 R1 and R2 sheets including Exhibits
16 and 17, which pertain to the present case. In para 10 of his
deposition, he stated that he had caused specimen handwriting of
Scrutineers Madhukar Smarth and Prabhakar Hejib to be
obtained. He had also caused handwriting of other persons
involved in the scandal to be collected and sent to the Examiner of
Questioned Documents.
43. PW 7 Vishwas Ranjangaonkar is the State Examiner of
Questioned Documents, who stated about examination of
documents referred to him. Specimen handwriting and signature
of Prabhakar Hejib were marked by him as E-1 to E-12
corresponding to Investigating Officer’s marking 5S-1 to 5S-6 and
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36
5S-1-1 to 5S-1-6. The natural handwriting of Prabhakar Hejib wasmarked by him as EN-1 and EN corresponding to Investigating
Officer’s marking of 5-N-1 and 5-N-2. The questioned writing at
Q-18 and Q-19 was identified by him to be written by the writer,
who wrote E-1 to E-12 and EN-1. Thus he identifies the
questioned writing to be that of accused No.3 Prabhakar Hejib.
44. The witness was cross-examined at length on behalf of
accused No.3 Prabhakar Hejib. The witness had proved his
reasoning at Exhibit 73 and his opinion at Exhibit 70. The cross-
examination of this witness does not show that there is any reason
for him to come to wrong conclusions about the writing of accused
No.3 Prabhakar Hejib. He admitted that while examining a
document, similarities and dissimilarities are to be taken into
consideration and added that he did not mention about
dissimilarities because dissimilarities were not found. The length
to which the cross-examining counsel proceeded could be gauged
by the fact that the witness was also asked to state whether he had
a certificate with him to show that the lenses which he had used
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37
for magnifying the document were approved by the GovernmentBureau of Standard!
45. It was argued on behalf of the accused that the
conclusions drawn by the learned Trial Magistrate on the basis of
evidence of PW 2 Narayan Ghatole and PW 7 Vishwas
Ranjangaonkar are not correct. Relying on a judgment of the
Supreme Court in Sukhvinder Singh and others v. State of Punjab,
reported at (1994) 5 SCC 152, it was contended that the accused
could not be compelled to give specimen handwriting when the
case is still under investigation. In that case, the specimen writing
was taken under the direction of Shri S.P. Garg, Tahsildar-
Executive Magistrate. The Court observed in para 21 of the
judgment that no enquiry or trial was admittedly pending in the
Court of Tahsildar or Executive Magistrate. The enquiry or trial in
the case was pending before the designated Court under TADA
and, therefore, the direction given by the Tahsildar to Sukhdev
Paul to give his specimen writing was held to be unwarranted.
The Court had considered the provisions of Sections 45 and 73 of
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38
the Evidence Act. The observations, as to who could takespecimen writing, came in the context of the provisions of Section
73 of the Evidence Act, which enable a Court to compare a
writing, and for this purpose, direct any person present in Court to
write any words or figures. The Court held that such comparison
could be carried out not only by the Court itself, but also with the
help of an Expert and, therefore, it was felt that it was necessary
for the Court concerned, and not an Executive Magistrate, to issue
direction for getting a specimen handwriting.
46. In Guru Pal Singh v. State of U.P. and another, reported
at 2002 Cri.L.J. 1517, the Allahabad High Court held that the
Court cannot compel accused to give his specimen handwriting to
police for comparison at the stage of investigation.
47. In State (Delhi Administration) v. Pali Ram, reported at
AIR 1979 SC 14, the Supreme Court held that the Court could
direct an accused to give his specimen handwriting for enabling it
to be compared by even Handwriting Expert.
48. The learned APP submitted that there can be no doubt
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39
that the power to compare handwriting under Section 73 of theEvidence Act can be exercised only by the Court, which is seised of
the matter and, therefore, only such Court could ask any person
present in the Court to write words or figures for the purpose of
enabling a Court to compare the words either by itself or through
an Expert. The learned APP submitted that this, however, did not
preclude examination of natural or admitted handwriting and the
questioned handwriting of a suspect during the course of
investigation and tendering evidence about such examination. He
pointed out that in the present case, accused No.3 Prabhakar Hejib
had not been directed by any Executive Magistrate to give the
specimen of his handwriting. The learned APP submitted that
even if the specimen writings collected in course of investigation
are excluded, still the Expert has come to the conclusion that the
disputed writings are of the same person who wrote the admitted
writings. Apart from this, the learned APP pointed out that PW 2
Narayan Ghatole, who was conversant with the handwriting of
accused No.3 Prabhakar Hejib had duly identified the said writing
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40
and there is no reason to disbelieve the word of PW 2 NarayanGhatole. The learned APP also pointed out that the evidence that
Scrutineers in this case were accused No.2 Madhukar Smarth and
accused No.3 Prabhakar Hejib cannot be discarded as
unbelievable. He pointed out that the evidence of PW 2 Narayan
Ghatole also shows as to how the tabulation registers and R1 and
R2 sheets used to be handled during the course of process of
noting of result of revaluation. Therefore, according to him, there
was no scope for concluding that the changes in the marks of
accused No.1 Laxmikant Zade were made by anyone else, but
accused No.3 Prabhakar Hejib. He submitted that since as per the
evidence of PW 1 Gangaram Meshram, one of the Scrutineers used
to dictate the marks and others used to write, both accused No.2
Madhukar Smarth as also accused No.3 Prabhakar Hejib are
involved in recording incorrect marks against the name of accused
No.1 Laxmikant Zade.
49. The learned counsel for the appellants drew my
attention to a judgment of the Supreme Court in S. Gopal Reddy v.
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41State of A.P., reported at (1996) 4 SCC 596, where the Court had
observed that Expert’s evidence under Section 45 of the Evidence
Act is a weak type of evidence, which cannot be safely relied upon
without independent and reliable corroboration. The Court had
considered the various modes of proof of writing of a document by
a person and the relevance of opinion of an Expert in such
situation. There can be no doubt about the proposition that the
evidence of an Expert is a weak type of evidence, in the sense that,
in itself, it is not clinching. But it does not follow when
corroborated with the evidence of witness who had occasion to
see the person’s writing or circumstance to show that it could be
writing of none else, it could be discarded. There is nothing to
show that PW 7 Vishwas Ranjangaonkar had any reason to falsely
implicate accused No.3 Prabhakar Hejib. He had not showed
ineptitude inexperience or lack of expertise in dealing with the
matter, which was referred to him.
50. The learned counsel for the appellant had also placed
reliance on the judgment of the Supreme Court in Gulzar Ali v.
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42State of H.P., reported in (1998) 2 SCC 192, where the Court
observed that the modes of proof envisaged in Sections 45 and 47
of the Evidence Act are not exhaustive for proving the genuineness
or authorship of the document. It is not clear as to what the
appellant gains by placing reliance on this judgment. Non-
exhaustive nature of modes of proof of authorship enumerated in
Sections 45 and 46 cannot be equated to such modes bring
inconclusive or being inadequate in themselves to prove the
authorship. The observations of the Supreme Court would only
mean that authorship could be proved by even modes which are
not enumerated or included in Sections 45 and 47 of the
Evidence Act. In Mobarik Ali Ahmed v. State of Bombay,
reported at AIR 1957 SC 857, on which reliance was placed by
the learned Additional Public Prosecutor, the Court was
considering the question of proof of authorship of the document
in relation to Section 45 of the Evidence Act and the Court held
that authorship may be proved by reference
to internal evidence furnished by the contents of the
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43
document as well. It is, however, not clear as to how this wouldhelp the prosecution in the present case.
51. In Jagmal Singh Yadav v. Aimaduddin Ahmed Khan,
reported at 1994 Supp (2) SCC 308, on which the learned counsel
for the appellant placed reliance, it has been observed that sole
testimony of Handwriting Expert would not be enough to hold the
writing as proved in the context of an election dispute based on
corrupt practices.
52. In Alamgir v. State (NCT, Delhi), reported at (2003) 1
SCC 21, the Supreme Court held that opinion of Handwriting
Expert can be relied on when supported by other evidence, though
there was no rule of law that without corroboration the evidence
could not be accepted.
53. In Chandrakant Chimanlal Desai v. State of Gujarat,
reported at (1992) 1 SCC 473, the Court observed that the
evidence of Handwriting Expert could not be decisive of the
matter unless the prosecution version inspired confidence or was
otherwise believable. In that case, the High Court had referred to
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44
the evidence of handwriting without examining the veracity ofother prosecution evidence.
54. The learned counsel for the appellants submitted that
PW 2 Narayan Ghatole, on whose evidence prosecution relies for
proving handwriting of Prabhakar Hejib, had resiled from such a
stand when he was examined as a witness in Criminal Case
No.356 of 2002, arising out of the same scandal. He sought to
produce for my perusal a certified copy of deposition of Narayan
Ghatole examined as PW 1 Regular Criminal Case No.356 of 2002
at Exhibit 20. Narayan did state that he had no occasion to see
the writing of any Scrutineer, which obviously includes accused
Prabhakar Hejib. He was declared hostile and cross-examined by
the Special Public Prosecutor in an attempt to control the damage.
The learned counsel submitted that thereafter, without allowing
the defence to cross-examine the witness, the Special Public
Prosecutor withdrew the prosecution under Section 321 of the
Code of Criminal Procedure and the learned Magistrate allowed
the withdrawal and acquitted the accused in the said case.
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45Therefore, according to him, except for evidence of Handwriting
Expert PW 7 Vishwas Ranjangaonkar, there is no evidence to show
that changes in marks were indeed made by accused Prabhakar
Hejib.
55. The learned APP countered by submitting that volte face
by PW 2 Narayan Ghatole in a subsequent case may be for a
variety of reasons. This does not denude his deposition in the
present case of its evidentiary value. Narayan Ghatole may have
lied in Criminal Case No.356 of 2002 and that need not result in
washing away the evidence in this case. He further submitted that
the question whether change in marks of accused Laxmikant Zade
was in the handwriting of accused Prabhakar Hejib or not, ought
to be decided by referring to all the relevant factors. He rightly
pointed out that the fact that accused Prabhakar Hejib was the
Scrutineer (along with acquitted accused Madhukar Smarth),
assigned the work of filling up marks scored upon revaluation by
Laxmikant Zade is duly established by the evidence of PW 2
Narayan Ghatole. Viewed in this context, it would be illogical to
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46
hold that the change in marks noted against paper of ElectricalEngineering of accused Laxmikant Zade is not in the handwriting
of accused Prabhakar Hejib, in spite of PW 7 Handwriting Expert
Vishwas Ranjangaonkar’s so concluding. Let the Society not
gather an impression that the conclusions drawn in a Court of Law
have to be “against the common reason of mankind”, or “that
springs of decision making in Judges are different from those of
the common man”.
56. The learned counsel for appellants also raised a
grievance about non-seizure of computer record and not taking
help of a Cyber Expert, since the FTR is maintained in the
University’s computer. This grievance has to be rejected, since
there is no complaint about tampering of electronic record. The
record tampered is physical document.
57. From the evidence on record, it may thus be held as
proved that Laxmikant Zade had failed in the examination, he
applied for revaluation, his paper of Electrical Engineering was
sent, among others, for revaluation, the result of revaluation was
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47
adverse, he had been allotted only 3 and 5 marks by the twoexaminers, and thus he was entitled to only 4 marks. However,
these 4 marks were changed by accused Prabhakar Hejib to 26
marks and total of 18, which had been worked out after
revaluation was changed to 40 by adding 14 marks of sessional
examination or internal assessment, and thus the candidate was
shown to have passed in that subject. According to the learned
APP, this was sufficient to justify conviction of both Laxmikant
Zade as well as Prabhakar Hejib.
58. His learned adversaries, however, submitted that the
conviction could not have been based only upon proof of these
facts. It was first submitted that there is nothing to show that
Prabhakar Hejib had in fact been provided with R1 and R2 sheets,
Exhibits 16 and 17. According to the learned counsel for the
appellants, if some different R1 and R2 sheets were provided to
Prabhakar Hejib by some mischief monger in the Revaluation
Section, and if Prabhakar Hejib accordingly entered marks in the
RTR and FTR, he could not be blamed. It was submitted that
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48
unless evidence is tendered to show that R1 and R2 sheets atExhibits 16 and 17 were provided to Prabhakar Hejib and in spite
of that he entered wrong marks, it could not be said that
Prabhakar Hejib had played any mischief. 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 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 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
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49should 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 followingobservations were made :
“certainly, it is a primary principle that the accused
must be and not merely may be guilty before a Court canconvict and the mental distance 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 isto say, they should not be explainable 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 the accused and mustshow that in all human probability the act must have
been done by the accused.59. 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
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50
which an inference of guilt is sought to be drawn must be cogentlyand firmly established, those circumstances should be of a definite
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.
60. 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.
61. In Harendra Narain Singh, etc. v. State of Bihar, reported
at AIR 1991 SC 1842, the Supreme Court held that in a murder
case resting on circumstantial evidence, if, upon appreciation of
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51
evidence, two views are possible, one pointing to the guilt of theaccused and another to the innocence of the accused, the Court
should adopt the latter view, since it is the basic rule of criminal
jurisprudence.
62. In State of A.P. v. I.B.S.P. Rao, reported at AIR 1970 SC 648,
on which the learned APP relied, the Court was considering
involvement of an accused in offence punishable under Section 120-B
and 420 of the Penal Code. In that context the Court observed in
relation to circumstantial evidence, in paragraph 7 of the judgment, as
under :
“7. In regard to the question of the effect and sufficiency of
circumstantial evidence for the purpose of conviction, it is now
settled law that before conviction based solely on such evidence
can be sustained, it must be such as to be conclusive of the
guilt of the accused and must be incapable of explanation on
any hypothesis consistent with the innocence of the accused.
But this does not mean that before the prosecution can succeed
in a case resting upon circumstantial evidence alone, it must
meet any and every hypothesis suggested by the accused,
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52
however extravagant and fanciful it might be. Before anaccused can contend that a particular hypothesis pointing to
his innocence has remained unexcluded by the facts proved
against him, the Court must be satisfied that the suggested
hypothesis is reasonable and not far-fetched. Further, it is not
necessary that every one of the proved facts must in itself be
decisive of the complicity of the accused or point conclusively
to his guilt. It may be that a particular fact relied upon by the
prosecution may not be decisive in itself, and yet if that fact,
along with other facts which have been proved, tends to
strengthen the conclusion of his guilt, it is relevant and has to
be considered. In other words, when deciding the question of
sufficiency, what the Court has to consider is the total
cumulative effect of all the proved facts each one of which
reinforces the conclusion of guilt, and if the combined effect of
all those facts taken together is conclusive in establishing the
guilt of the accused, the conviction would be justified even
though it may be that any one or more of those facts by itself
is not decisive.”
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5363. There can be no doubt about the propositions which
have been reiterated by the Apex Court from time to time in order
to guide all the Criminal Courts while considering when
conviction could be based on circumstantial evidence. The
learned APP, however, rightly pointed out that human probability
is important catchword in the judgment of Jaharlal Das, on which
the learned counsel for the appellants placed reliance.
ig He
submitted that the probabilities to be considered are not
hypothetical probabilities or strained imaginative probabilities, but
those, which would, in the circumstances established, normally be
available. The learned APP submitted that the possibility of some
other R1 and R2 sheets having been provided to Prof. Prabhakar
Hejib is not only remote, but also ruled out. He pointed out that if
different R1 and R2 sheets were provided to Prof. Prabhakar Hejib
from which he noted the marks, then the marks in respect of other
students in the same R1 and R2 sheets would also be different.
Since the marks in respect of other students are not shown to be
different from those in the R1 and R2 sheets at Exhibits 16 and
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54
17, the possibility that Prabhakar Hejib was provided withsomething else than what is produced before the Court is ruled
out.
64. The learned counsel for the appellants submitted first,
that the University had not kept any record of specimen signatures
of Revaluators to enable the Scrutineers to tally those signatures
before transcribing marks from R1 and R2 sheets in the RTR.
Therefore, according to the learned counsel, the possibility that
the doctored R1 and R2 sheets were provided to Prof. Prabhakar
Hejib cannot be ruled out. They submitted that a person copying
the marks could have maintained the marks in respect of other
students and could have changed the marks only in respect of said
Laxmikant Zade. Now, this hypothesis first assumes that there
was someone, who was interested in changing the marks of
Laxmikant Zade alone in order to favour him. Secondly, it
assumes that such person would have had access to R1 and R2
sheets and also an opportunity to prepare a copy with altered
marks of Laxmikant Zade. It is true that the evidence tendered
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55
shows that the blank R1 and R2 sheets were available in theUniversity office aplenty and no account was kept of these sheets.
However, it does not follow, as rightly submitted by the learned
APP, that person interested in Laxmikant Zade, other than the
Scrutineers or person in charge of Revaluation Section would have
had access to R1 and R2 sheets received from the Revaluators, as
also to the blank R1 and R2 sheets, and would have had time to
carry out the manipulations without being noticed by anyone.
65. As rightly submitted by the learned APP, in this case, it
has to be seen that originally Prof. Smarth had entered correct
marks 3, 5 and 4, not only in the RTR, but also had entered 4
marks in the FTR. This was later changed by Prof. Hejib to 26
marks. Thus the story that a wrong RTR sheet has been provided
to Prof. Prabhakar Hejib and, therefore, he made wrong entries, is
debunked. Ordinarily when marks already entered are changed
by a Scrutineer, he would question the necessity to change such
marks. He would also be suspicious as to how wrong marks came
to be recorded initially.
::: Downloaded on – 09/06/2013 14:18:34 :::
5666. In C.R. Alimchandani and others v. T.K. Shah and
another, reported at 1999(1) Mh.L.J. 825, on which the learned
counsel for the accused relied, this Court held that in order to
implicate an accused for commission of offences under Sections
465 and 466 of the Penal Code, it is incumbent on the part of the
complainant to plead the role of each accused in the making or
manufacturing of the document in question.
ig A wholesale
statement that the accused have committed offences under
Sections 465 and 466 of the Penal Code was held to be
inadequate. These observations came in the context of a
complaint case, which was filed before a Metropolitan Magistrate.
The learned counsel submitted that since one Scrutineer used to
dictate makes and other used to take them down, there was a
possibility of human error in wrongly hearing or taking down
marksand since roles of each Scrutineer is not defined, accused
Prabhakar Hejib could not be held guilty.
67. The theory propounded by the defence that since the
Scrutineers were working in pairs and since one Scrutineer used
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57
to dictate marks while the other noted them down and, therefore,there was a possibility of wrong marks being dictated by the first
Scrutineer, has also to be rejected. If such an explanation were to
be accepted, everybody would escape liability and everybody
would pass on the buck to the others. It is not shown that there is
any rule or a practice direction issued by the University authorities
that the Scrutineers must work in pairs or that one Scrutineer
must dictate marks while the other takes them down. This may be
a practice developed by the Scrutineers for their own convenience.
Therefore, if a Scrutineer enters the marks believing in his
colleague’s dictation, then he must bear the responsibility of any
mistake committed by his colleague in dictating marks. It would
not be open for him to allege that wrong marks were dictated and
so he took down incorrect marks and, therefore, he is not
responsible. Therefore, since the marks are shown to have been
changed in the handwriting of Prof. Prabhakar Hejib, he must take
the responsibility of having entered wrong marks. He must also
take the responsibility of having done so in spite of the fact that he
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58
was provided with the correct R1 and R2 sheets as may be seenfrom the marks initially entered in the register.
68. The contention of the learned counsel for the appellants
that after the Scrutineers entered the marks, the RTR and the FTR
are in the custody of the Assistant Registrat (Revaluation) and,
therefore, the subsequent changes could have been done in the
office of the Assistant Registrar, and not necessarily by Prof.
Prabhakar Hejib, has to be rejected in this case, because the
Handwriting Expert has identified those changes to be in the
writing of Prof. Prabhakar Hejib, and the Expert had absolutely no
reason to falsely implicate Prof. Prabhakar Hejib. Therefore,
considering the human probabilities, the conclusion is inescapable
that Prof. Prabhakar Hejib did enter incorrect marks against the
name of student Laxmikant Zade in order to favour him and to
make him clear the subject of Electrical Engineering in which he
had otherwise failed.
69. The learned counsel for appellant Laxmikant Zade
submitted that there is no evidence that Laxmikant Zade had ever
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59
approached Prof. Prabhakar Hejib or that Prof. Prabhakar Hejibchanged the marks to the advantage of Laxmikant Zade at the
instance of Laxmikant Zade. They 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 Laxmikant Zade.
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 Laxmikant Zade had
abetted in forgery or falsification of record by Prof. Prabhakar
Hejib, or that Laxmikant Zade had indulged in cheating by using
as genuine, a mark-list, which was false. Reliance was placed on
the following judgments :
70. In State (Delhi Admn.) v. V.C. Shukla and another,
reported in 1980 Cri.L.J. 965(1), while considering the case of
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
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60
more persons to commit an offence and that this clearly envisagesthat 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.
71. In Hari Ram v. State of H.P., reported at 1982 Cri.L.J.
294, a Division Bench of Himachal Pradesh High Court was
considering conspiracy in the context of offence punishable under
Section 467 of the Penal Code and reiterated that in case of
conspiracy based on circumstantial evidence, the circumstances
should be incapable of being reasonably explained on any other
hypothesis than the guilt of the accused.
72. On the question of elements of conspiracy the learned
Additional Public Prosecutor placed reliance in K. Hashim v. State
of T.N., reported at (2005) 1 SCC 237, the Court was considering
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61
‘conspiracy’ in the context of circulating counterfeit currency. Inthis context the Court observed in paragraph 22 of the judgment
as under :
“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 illegalmeans, such an agreement is designated a
criminal conspiracy ;
Provided that no agreement except an
agreement to commit an offence shall amount to acriminal 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 theaccomplishment 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::: Downloaded on – 09/06/2013 14:18:34 :::
62complete when the combination is framed. From this,
it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance ofthe conspiracy, 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 renderingenterprises 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 continuedand renewed as to all its members wherever and
whenever any member of the conspiracy acts infurtherance of the common design. (See American
Jurisprudence, Vol.II, Section 23, p.559). For anoffence punishable under Sction 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 necessaryimplication. Offence of criminal conspiracy consists
not merely in the intention of two or more, but in theagreement 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, andan 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.”
73. In this judgment reliance is placed on earlier judgment
of the Supreme Court in Ramnarayan Popli v. CBI, reported at
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63
(2003) 3 SCC 641, which too was made available for my perusal
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
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64
affected the fiber of the country’s economic structure. These cases
are nothing but private gain at the cost of the public, and lead to
economic disaster.
74. 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 studetns by
engaging in a conspiracy.
75. In Esher Singh v. State of A.P., reported at (2004) 11
SCC 585, in relation to offence under the TADA the Court was
considering the ingredients of ‘criminal conspiracy’. The Court
observed that direct independent evidence of criminal conspiracy
is jointly not available and in force have to be normal duties from
the acts of the parties. The Court had referred to earlier judgment
in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665]. The
Court observed that privacy and secrecy are more characteristics
of conspiracy and therefore, agreements have to be proved only by
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65
necessary implication.
76. The learned APP submitted, and rightly in my view, that
it would be too far fetched to imagine that Prof. Prabhakar Hejib
would increase the marks of Laxmikant Zade for no apparent
reason, or without being approached by Laxmikant Zade or merely
because he took a fancy for the name. Even if it is presumed that
somebody on behalf of Laxmikant Zade had approached Prof.
Prabhakar Hejib, such approach would obviously be at the
instance of Laxmikant Zade. It may not be permissible to allow
imagination to run wild and imagine all sorts of possibilities and
overlooking natural course of human conduct. Therefore, it would
not be permissible to hold that the nexus between benefit accrued
to Laxmikant Zade and change of marks made by Prof. Prabhakar
Hejib is not established. Conspiracy is not something, which is
indulged in by calling witnesses. It would have to be inferred
from the facts established by the evidence tendered by the
prosecution. It would be impermissible to conclude that since
there was no evidence of communication between the two
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66
appellants, the offence is not proved.
77. It was next submitted on behalf of appellant Laxmikant
Zade that he had been issued a mark-list after the revaluation
process was over and this mark-list was not shown to have been
cancelled by the University when he applied for admission to the
next stage of his academic career. Therefore, he could not be held
guilty of forgery of cheating. The learned counsel for the accused
relied on the following judgments :
78. In K. Prasantha Kumar v. State of Andhra Pradesh,
reported at 2004 DGLS(Cri.) Soft 546, the Andhra Pradesh High
Court held in connection of offences punishable under Sections
465, 417 and 193 of the Penal Code arising out of an allegation
that the accused had obtained admission by producing a forged
document, that conviction could not be handed down unless it
was shown that the document was forged by the accused and
none else, merely because the forged document is in the name of
the accused, the accused could not be convicted.
79. In Nand Kumar Singh v. State of Bihar, reported at AIR
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67
1992 SC 1939, it was held that unless it was established that
forging of documents was within the knowledge and consent of
the accused, the accused is entitled to acquittal of charge of
forgery as well as cheating.
80. In Chatt Ram v. State of Haryana, reported in AIR 1979
SC 1890, the Court held that merely because the accused
presented a forged lottery ticket for claiming special prize, it could
not be held that the accused was concerned in forging the ticket or
had the requisite guilty knowledge of its forged character.
81. In Shyamsunder s/o Madanlal Khandelwal v. Dashrath
s/o Kisan Bondade and others, reported at 2006 ALL MR (Cri) 801,
this Court held that basic minimum requirement for conviction
under Section 417 of the Penal Code would be that the
complainant states on oath that he was induced to part with his
goods with fradulent and dishonest intention by the accused and
in absence of such basic averment, it is impermissible to convict
the accused.
82. The learned counsel for the accused also relied on the
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68
judgments in N.P. Chhabaria v. M/s. Jyoti Wire Industries and
others, reported at 2003 ALL MR (Cri) 2304, and Sharad
Prabhakar Ambadkar and another v. Arun Sharadram Deshpande
and another, reported at 2005 ALL MR (Cri) 601, to support the
contention that for proving cheating, it is necessary to prove that
the accused has deceived or induced a person with fradulent or
dishonest intention and that the person so induced has delivered
or consented to retain some property or induced to act or omit to
do something or some act or omission causes or is likely to cause
damage or harm to that person in body, mind or reputation. It
was submitted that it could not, therefore, be said that Laxmikant
Zade had indulged in cheating by submitting a forged mark-list.
83. In A.S. Krishnan v. State of Kerala, reported at 2004 AIR
SCW 3066, on which the learned APP relied, there was a similar
case of forged mark sheet got by father of the student so as to
secure admission for the student in medicine course. There was
revaluation even in that case. The Court considered as to how the
candidate could not have secured the marks which were shown in
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69
the mark sheet even in revaluation. The observations of the Court
in paragraph 8 and 9 of the judgment regarding ingredients of
Section 471 of the Penal Code and the concepts of intention,
knowledge, reason to believe may be usefully reproduced as
under :
“8. 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 excludedfrom 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 forforgery 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. Theact 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 underSection 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::: Downloaded on – 09/06/2013 14:18:35 :::
70conviction 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.
9. 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 nowconcerned with the expressions “knowledge” and
“reason to believe. “Knowledge is an awareness onthe part of the person concerned indicating his state of
mind. “Reason to believe” is another fact of the stateof 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 mind. Likewise “knowledge” will beslightly on higher plane than “reason to believe”. A
person can be supposed to know where there is adirect 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”.
84. The argument that Laxmikant did not indulge in
cheating would have been available had Laxmikant Zade’s marks
not been changed to his advantage by the Scrutineers. Since the
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71
knowledge that the marks were so changed is attributable to
Laxmikant Zade, it has to be inferred that Laxmikant Zade
knowingly submitted a mark-list which depicted marks which he
had not earned. It was this mark-list, which induced the College
to admit Laxmikant Zade for BE Part II Course under the scheme
of “Allowed To Keep Terms”. Therefore, it has to be held that the
charge of cheating simpliciter against Laxmikant Zade was rightly
held as proved.
85. The learned counsel for both the appellants submitted
that drawing too many inferences based on too many assumptions
amounts to entering into the area of conjectures and surmises. In
Sarwan Singh Rattan Singh v. State of Punjab, reported at AIR
1957 SC 637, the Court held that mere suspicion, however strong,
cannot take the place of proof. They, therefore, submitted that
such conclusions are not permissible. While it would have indeed
eminently desirable that the prosecution should have tendered
evidence in respect of each aspect of the matter and should have
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72
even found out as to how Laxmikant Zade and Prof. Prabhakar
Hejib met or communicated, absence of such evidence, in itself,
would not permit the Court to shut its eyes, again, to the normal
course of human conduct. The learned APP brought to my notice
the observations of the Supreme Court in Dhanaj Singh v. State of
Punjab, reported at (2004) 3 SCC 654, to the effect that if primacy
is given to such designed or negligent investigation, to omissions
or lapses by perfunctory investigation or omissions, the faith and
confidence of the people would be shaken not only in the Law
enforcing agency but also in the admistration of justice. It would
not be permissible to conclude that Laxmikant Zade was benefited
by change in his marks without any initiation from him or that
Prof. Prabhakar Hejib innocently changed these marks without
any motive. Therefore, the conclusions drawn cannot be faulted.
86. The learned counsel for appellant Laxmikant Zade
stated that Laxmikant had stated that he wanted to examine
defence witnesses. An application was filed vide Exhibit 106
indicating that the accused wanted to examine Commissioner of
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73
Police as regards initial investigation and authority of PSI
Lokhande to investigate into the matter; Principal of Priyadarshini
College (i.e. Professor of PW 3 Gadkari); Vice Chancellor of
Nagpur University, regarding powers and procedure of
revaluation; and the Secretary, Ministry of Education. This
application was rejected by the learned Trial Magistrate observing
that it amounted to dilatory tactics.
87. The learned counsel submitted that examination of
prosecution witnesses, which commenced on 24-1-2006, had
dragged on for a full year. Therefore, the learned Magistrate
should not have held that the application dated 17-1-2007 for
examining defence witnesses was unduly delayed and need not
have precipated the matter by pronouncing the judgment on
25-1-2007 in spite of the fact that an application for transfer of the
case was filed. While it was thoroughly undesirable on the part of
the learned Trial Magistrate to have shut out defence so
summarily, the record shows that delay in completion of recording
evidence was not attributable to the learned Magistrate. The
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74
lawyers on both the sides seem to have participated in the trial as
and when they found time.
88. The question is whether prejudice is caused to the
appellant on account of refusal to examine defence witnesses. An
acting Vice Chancellor was already examined as prosecution
witness, so examining another Vice Chancellor about powers and
procedure was not necessary. In any case, this is more a matter of
record and cannot be within personal knowledge of individual.
Same would hold good about the three other witnesses sought to
be examined. Therefore, it cannot be held that any prejudice was
caused or failure of justice occurred on account of the course
adopted by the learned Magistrate (which cannot at all be
approved or commended). Attempt of the learned counsel for the
appellants to take advantage of acquittal of co-accused indicating
absence of conspiracy was repelled by the learned APP by relying
on the judgment in Anicete Lobo v. State (Goa, Daman & Diu),
reported at AIR 1994 SC 1613, in which while considering the
involvement of accused in offences punishable under Sections
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75
467, 468, 420 and 120-B of the Penal Code, arising out of
encashment of a forged bank draft, the Court held that acquittal of
one of the accused would be of no consequence on the complicity
of the other accused persons, all of whom were allegedly involved
in the conspiracy.
89. Relying on judgment In Hardeep Singh and others v.
State of Haryana, reported at AIR 1008 SC 3113, where while
considering the provision of Section 34 of the Penal Code, the
Court observed that the provision is intended to meet a case in
which it may be difficult to distinguish between acts of individual
members of a party who act in furtherance of the common
intention of all or to prove exactly what part was played by each
of them, the learned counsel for the appellants assailed conviction
by resorting to Section 34 of the Penal Code. In that case, the
Court further held that for applying Section 34, it is not necessary
to show that there was some overt act on the part of the accused.
In Shiv Prasad Chuni Lal Jain and another v. State of Maharashtra,
reported at AIR 1965 SC 264, the Court held that when an accused
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76
person was not present when various offences were committed by
the co-accused, he could not be convicted with the help of Section
34 of the Penal Code.
90. The learned APP relied on a judgment in N.M.M. Y
Momin v. State of Maharashtra, reported at AIR 1971 SC 885,
where the Supreme Court had considered the distinction between
Sections 34, 109 and 120-B of the Penal Code for fastening
liability of a crime on a person who may not have actually done
the act which constitutes an offence. In paragraph 7 of the
judgment the Supreme Court held as under :
“7. So far as S. 34, Indian Penal Code is concerned, it
embodies the principle of joint liability in the doing of a
criminal act, the essence of that liability being the
existence of a common intention. Participation in thecommission of the offence in furtherance of the common
intention invites its application. Section 109, Indian
Penal Code on the other hand may be attracted even if theabettor is not present when the offence abetted is
committed provided that he has instigated the
commission of the offence or has engaged with one or::: Downloaded on – 09/06/2013 14:18:35 :::
77more other persons in a conspiracy to commit an offence
and pursuant to that conspiracy some act or illegal
omission takes place or has intentionally aided the
commission of an offence by an act or illegal omission.
Turning to the charge under Section 120-B, Indian Penal
Code criminal conspiracy was made a substantive offence
in 1913 by the introduction of Chapter V A in the Indian
Penal Code. Criminal conspiracy postulates an agreement
between two or more persons to do, or cause to be done,
an illegal act or an act which is not illegal, by illegal
means. It differs from other offences in that mere
agreement is made an offence even if no step is taken to
carry out that agreement. Though there is close
association of conspiracy with incitement and abetment
the substantive offence of criminal conspiracy is
somewhat wider in amplitude thatn abetment by
conspiracy as contemplated by Sec. 107, I.P.C. A
conspiracy from its very nature is generally hatched in
secret. It is, therefore, extremely rare that direct evidence
in proof of conspiracy can be forthcoming from wholly
disinterested quarters or from utter strangers. But, like
other offences, criminal conspiracy can be proved by
circumstantial evidence. Indeed in most cases proof of
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78
conspiracy is largely inferential though the inference must
be founded on solid facts. Surrounding circumstances
and antecedent and subsequent conduct, among other
factors, constitute relevant material. In fact because of
the difficulties in having direct evidence of criminal
conspiracy, once reasonable ground is shown for believing
that two or more persons have conspired to commit an
offence then anything done by anyone of them in
reference to their common intention after the same is
entertained becomes according to the law of evidence,
relevant for proving both conspiracy and the offences
committed pursuant thereto. ….”
91. It is true that for invoking Section 34 of the Penal Code,
it would be necessary to at least show presence of both the
appellants when the criminal acts were committed. Laxmikant
was not shown to be present when forgery was committed and
Prabhakar Hejib was not shown to be present when Laxmikant
Zade allegedly cheated by seeking admission on forged mark-list.
Therefore, conviction by resorting to Section 34 of the Penal Code
cannot be sustained.
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79
92. The learned Additional Chief Judicial Magistrate has
convicted the appellants of various offence with the aid of
Sections 34 and 109 of the Penal Code. As already observed,
Section 34 is not attracted. However, resort to Section 109 of the
Penal Code may be justified, since Section 107 of the Penal Code
provides that a person abets doing of a thing if he engages with
one or more persons for the doing of that thing and Section 109 of
the Penal Code makes such abetment punishable with the
punishment, which is provided for the offence, which committed
as a consequence of abetment.
93. The learned counsel for the appellants submitted that
conviction for offence punishable under Section 420 of the Penal
Code is not justified, since there is no delivery of any property or
valuable security.
94. The learned APP submitted that the conviction under
Section 420 (as also under Section 409) of the Penal Code is
justified, since the word “property” need not be given a restricted
meaning to money or other tangible property. For this purpose,
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80
he cited some decisions of the Supreme Court.
95. In R.K. Dalmia v. 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
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
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81
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
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.
96. In Shivnarayan v. State of Maharashtra, reported at AIR
1980 SC 439, the Supreme Court again considered what
constitutes ‘property’ for the purpose of Section 409 of the Penal
Code and held that chose in action is ‘property’. This cannot help
the prosecution in branding the registers which the scrutineers
were supposed to fill up or the mark sheets which are appellant-
students got to be property since the chose in action is indeed
property recognised as such in law and is also transferable.
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97. As far as forgery is concerned, Clause Secondly of
Section 464 of the Penal Code makes dishonest or fraudulent
alteration of a document without lawful authority to be forgery.
The learned Trial Magistrate has convicted the appellants for
offences punishable under Sections 468 and 471 of the Penal Code
holding that the appellants are guilty of forgery for the purpose of
cheating, as also of using as genuine a document, which he knows
or has reason to believe to be forged. No fault can be found with
this conclusion.
98. In State v. Savithiri and others, reported at 1976 Cri.L.J.
37, a Division Bench of Madras High Court held that when the
accused was convicted for offences punishable under Section 302
read with Section 109 of the Penal Code, he could not be
simultaneously convicted and sentenced for offence punishable
under Section 120-B of the Penal Code, though abetment could be
by conspiracy. In view of the appellants’ conviction with the aid of
Section 109 of the Penal Code, there was no warrant to resort to
Section 120-B of the Penal Code. The conviction and sentence
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inflicted on this count cannot, therefore, be sustained.
99. As regards the direction of the learned Additional Chief
Judicial Magistrate that the sentences shall run consecutively, the
learned counsel for the appellants placed reliance on a Full Bench
judgment of this Court in Queen-Empress v. Malu Argun and
another, reported at 1 BLW 1899. In that case, a person had
committed house-breaking in order to commit theft. The Court
held that while awarding punishment under the provisions of
Section 71 of the Penal Code, the Court should pass one sentence
for either of the above offences and not a separate one for each
offence. The Court also added that if two sentences were passed
and the aggregate of them did not exceed the punishment
provided by law for any one of the offences, or the jurisdiction of
the Court, that would be an irregularity only, and not an illegality.
100. A Division Bench of Calcutta High Court in Kitabdi v.
Emperor, reported at AIR 1931 Calcutta 450, held that when a
person is charged with rioting under Section 147 of the Penal
Code and then by reason merely of being a party to the riot or the
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unlawful assembly becomes liable under Section 304 of the Penal
Code, separate sentences under the two charges were forbidden.
101. In view of this, separate sentences for offences
punishable under Sections 468 and 471 of the Penal Code cannot
be sustained. Also, since ingredients of offence of cheating
punishable under Section 417 of the Penal Code are included in
offence of forgery for the purpose of cheating under Section 468
of the Penal Code, separate sentence for this offence too is not
warranted. Consequently, direction that sentences shall run
consecutively is thoroughly unjustified. It seems that the learned
Magistrate overlooked the necessity of maintaining a
proportionality in the matter of sentence and inflicted a harsh
sentence for offences, which though unpardonable, are not ones,
which call for exemplary sentence. One of the appellants is an old
man of 73 years and has already paid dearly for his indiscretion by
suffering incarceration and resultant loss of face and esteem at the
end of a long academic career. The other is a young man on the
threshold of embarking upon career in Engineering, who would
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find all doors shut upon him due to stigma of conviction.
Appellant Prabhakar Hejib has been in jail for about 8 months and
appellant Laxmikant Zade has been in jail for 21 days.
102. The learned APP submitted that considering the harm
that the activities of these persons has caused to the reputation of
the Nagpur University, no leniency should be shown. He relied on
the judgment of the Supreme Court in Beena Philipose & anr. v.
State of Kerala, reported at (2006) 7 SCC 414, in relation to the
offences punishable under Sections 420, 421, 466, 468, 471, 465
and 120-B of the Penal Code, arising out of forgery in securing
admission on the basis of forged mark sheets, where sentence of
imprisonment for three months was passed against the student
and six months against her father. Considering her health
condition of her health, the Supreme Court had enhanced the fine
to Rs. Five Lakhs while reducing the sentence to that already
undergone, since substantial portion of the sentence had been
undergone.
103. The learned Additional Public Prosecutor submitted that
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if any indulgence is to be shown to the appellants then heavy fine
should be imposed.
104. I have considered this submission. While there can be
no doubt that crime of this type ought to be dealt with sternly, it
cannot be overlooked that appellant Laxmikant Zade had
committed the offence by being lured into the prospect of getting
a quick degree when he was in his immature youth. It would be
wrong to stigmatize him for his whole life on account of one
indiscretion in which he indulged about 10 years ago. Also
considering the age of appellant Prabhakar Hejib, who is 73 years
old, it may not be necessary to impose exemplary sentence.
Reduction of substantive sentence with increase in fine would
meet the ends of justice.
105. In view of this, the appeals are partly allowed.
The conviction and sentence of the appellants for
offence punishable under Section 120-B of the Penal Code are set
aside and the appellants are acquitted of the said offence.
The conviction of the appellants for offence punishable
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under Section 420 read with Sections 34 and 109 of the Penal
Code and the sentence of rigorous imprisonment for four years
and fine of Rs.15,000/- each or in default RI for two months
imposed upon them, are set aside. Instead they are convicted for
offence punishable under Section 417 read with Section 109 of
the Penal Code and sentenced to suffer rigorous imprisonment for
the period already undergone, if any, and fine of Rs.25,000/-
each or in default RI for one month more.
The conviction of the appellants for offences punishable
under Section 468 read with Sections 34/109 and 471 read with
Section 34/109 is altered to one for offences punishable under
Section 468 and 471 read with Section 109 of the Penal Code and
they are sentenced to suffer rigorous imprisonment for the period
already undergone, if any, and fine of Rs.25,000/- each or in
default RI for one month more together on both the counts, i.e. no
separate sentence is inflicted for these two offences.
Judge
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