{"id":250361,"date":"2004-03-17T00:00:00","date_gmt":"2004-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-s-krishnan-and-anr-vs-state-of-kerala-on-17-march-2004"},"modified":"2015-04-29T14:36:25","modified_gmt":"2015-04-29T09:06:25","slug":"a-s-krishnan-and-anr-vs-state-of-kerala-on-17-march-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-s-krishnan-and-anr-vs-state-of-kerala-on-17-march-2004","title":{"rendered":"A.S. Krishnan And Anr vs State Of Kerala on 17 March, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A.S. Krishnan And Anr vs State Of Kerala on 17 March, 2004<\/div>\n
Author: J Arijit Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  916 of 1997\n\nPETITIONER:\nA.S. Krishnan and Anr. \n\nRESPONDENT:\nState of Kerala \n\nDATE OF JUDGMENT: 17\/03\/2004\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT,J<\/p>\n
The appeal presents a strange scenario where the
\naccusation is that appellant No.2, a doctor doctored
\ndocuments so that his son appellant No.1 would get admission
\nto a medical college and become a doctor. Allegations were
\nto the effect that they manipulated mark sheets and on the
\nbasis of forged mark sheets he got admission which otherwise
\nwould not have been available to him. The mark sheets
\nrelated to the two pre-degree examinations of the Kerala
\nUniversity conducted in 1978-79 and 1979-80, for two years
\ni.e. Ist and IInd year respectively.  They faced trial with
\ntwo others.  For the sake of convenience they are described
\nas A-1 and A-2 and the other two who were acquitted as A-3
\nand A-4.\n<\/p>\n
 \tProsecution version as unfolded during trial is
\nessentially as follows:\n<\/p>\n
A-1 is the son A-2, who was running a nursing home at
\nErnakulam during the relevant period and A-4 was an
\nAssistant Registrar, Examination Wing, Kerala University. A-
\n1 was a Pre-degree student during the academic years 1978-79
\nand 1979-80 in the Mar Ivanios College, Thiruvananthapuram,
\naffiliated to the Kerala University. He appeared for the
\nfirst year Pre-degree examination in April, 1979 and for
\nsecond year Pre-degree examination in April\/May 1980. After
\nthe second year examination, A-1 got following marks as
\nindicated in the mark list issued by the Mar Ivanios
\nCollege:\n<\/p>\n
\t\tEnglish\t\t: 204\/300
\n\t\tHindi\t\t: 109\/150
\n\t\tPhysics\t\t: 127\/150
\n\t\tChemistry\t\t: 131\/150
\n\t\tBiology\t\t: 129\/150
\n\t\tGrand total\t: 700\/900<\/p>\n
Total for the optional subjects, viz. Physics, Chemistry and
\nBiology was 387 out of 450. The above mark list issued by
\nthe Kerala University to A-1, through Mar Ivanios College,
\nThiruvanthapuram was received by both the appellants with
\ntheir acknowledgement in the mark lists kept in the college.\n<\/p><\/blockquote>\n
As both appellants were aware that the marks secured by the
\nA-1 were insufficient to get an admission in any medical
\ncollege for the first year MBBS course in Kerala on merit,
\nthey entered into a criminal conspiracy along with A-3 and
\nA-4 on some day between 30.6.1980 and 10.10.1980 for forging
\na mark list showing higher marks and pursuant to such
\nconspiracy A-4 in the case procured a blank mark list of
\nPre-degree examination and by fraudulent means and without
\nthe knowledge and authority of the Controller of
\nExaminations (PW-1) got the impression of the facsimile
\nsignature of PW-1 and the University emblem seal affixed on
\nthe blank mark list form. A-4 wrote in his own handwriting
\nfalsely and fraudulently the following marks in the forms to
\nhave been secured by A-1 in the Pre-degree final year
\nexamination:\n<\/p>\n
\tEnglish\t\t: 204\/300
\n\tHindi\t\t: 109\/150
\n\tPhysics\t\t: 142\/150
\n\tChemistry\t\t: 140\/150
\n\tBiology\t\t: 138\/150
\n\tGrand total\t: 733\/900<\/p>\n
In addition total of 420 marks out of 450 marks was shown
\nfor the optional subjects, viz. Physics, Chemistry and
\nBiology. A-4 forged the initials of the concerned section
\nassistants, who actually prepared the true mark list issued
\nthrough Mar Ivanios College and received by A-1 and A-2. A-4
\nalso attested a true copy of the mark list (Ext.P27). He
\nforged with his designation and seal and entrusted both the
\nforged mark list and its true copy attested by him (Ext.P27)
\nto A-1 and A-2. Ext.D-4 is the forged mark list. A-1 and A-2
\nthereafter prepared an application form for admission to a
\nmedical college during the year 1980-81 with their
\nsignatures by incorporating the marks found in Ext.D-4, the
\nforged mark list fully knowing the forged nature of Ext.D-4
\nand forwarded such application together with the attested
\ntrue copy Ext.P-27 of Ext. D-4 to the medical college,
\nThiruvanthapuram with the fraudulent intention to make the
\nconcerned authorities to believe that the marks shown in the
\napplication are the real marks obtained by A-1 and thereby
\ncheated the selection committee and obtained admission for
\nthe first year M.B.B.S. course on merit basis. Appellants
\nwith the intention of causing disappearance of the evidence
\nof commission of the crime destroyed the true genuine mark
\nlist\/the true copy of which is marked as Ext.D-8 in this
\ncase received by them from Mar Ivanios College and thus the
\nappellants and the other acquitted accused committed the
\nalleged offences. A-3 was an associate of A-2.\n<\/p>\n
Information was lodged with the police. Investigation
\nwas undertaken and on completion thereof charge sheet was
\nfiled indicating commission of offence punishable under
\nSections 120B<\/a>, 466<\/a>, 468<\/a> and 471<\/a> of the Indian Penal Code,
\n1860 (in short the ‘IPC<\/a>‘) read with Section 34<\/a> IPC. The case
\nwas tried by the Special Court for trial of Mark list Cases,
\nTrivandrum. Sixty three witnesses were examined and 65
\ndocuments were marked. The accused persons pleaded
\ninnocence, examined one person as DW-1 and exhibited
\ndocuments. The trial Court found that the accusations were
\nestablished so far as A-3 and A-4 were concerned. It held
\nthe appellants A-1 and A-2 guilty of offences punishable
\nunder Sections 471<\/a>, 420<\/a>, 120B<\/a> and 201<\/a> read with Section 34<\/a>
\nIPC and sentenced to suffer imprisonment for one year and
\ntwo years for the offence under Sections 471<\/a> and 420<\/a>
\nrespectively and six months each for the charge under
\nSection 120B<\/a> and 201<\/a> read with Section 34<\/a> IPC. The accused
\nappellants were acquitted of the charges of the offence
\nunder Sections 467<\/a> and 468<\/a> IPC. By the impugned judgment the
\nHigh Court found that the conviction was in order so far as
\nthe offences relatable to Sections 471<\/a>, 420<\/a> read with
\nSection 34<\/a> were concerned, but set aside the conviction for
\nthe offences punishable under Sections 120B<\/a> and 201<\/a> IPC.
\nCustodial sentence was reduced to three months each for the
\noffences punishable under Section 471<\/a> and 420<\/a> read with
\nSection 34<\/a> IPC.\n<\/p>\n
\tIn support of the appeal Mr. U.R. Lalit, learned senior
\ncounsel submitted that after the acquittal of A-3 and A-4
\nwho were primarily alleged to be responsible for the
\nforgery, conviction cannot be maintained so far as the
\nappellants are concerned. A-4 had given not only the alleged
\nforged mark sheet but also himself attested a copy thereof.
\nThere was no reason for the present appellants to suspect
\nthe correctness thereof. There was specific charge of
\nconspiracy relating to forged mark sheet and to commit an
\nillegal act. The forgery was alleged so far as A-4 is
\nconcerned. Sections 463<\/a> to 471<\/a> require as an essential
\ningredient the existence of a forged document and use
\nthereof. It cannot be said that the document in question is
\na forged document. The father (appellant No.2) took a
\ndocument from A-4 and handed it over to A-1 who used it. The
\nson (A-1) could not have entertained doubt that the document
\nhanded over to him by the father was a forged one. Unless
\nthere is conspiracy or common intention, Section 34<\/a> would
\nhave no application. Even in the instant case, charge of
\noffence punishable under Section 201<\/a> was set aside and there
\nwas acquittal of the charges relatable to Sections 467<\/a> and\n<\/p>\n
468. The document cannot be said to be a forged one and when
\ncharges of forgery were not established, there was no
\nquestion of a forged document being there. On hypothetical
\nbasis the High Court has proceeded to conclude that the
\ndocument was forged as it attributed knowledge of the
\nforgery and manipulation of the documents to the appellant.
\nAll non-genuine documents are not forged. They must be
\ncovered by the conditions indicated in Sections 463<\/a> and 464<\/a>.
\nThere is no mens rea involved. Unless the part allegedly
\nplayed by A-4 is established, there cannot be a forged
\ndocument. The prosecution has failed to prove the minimum
\nrequirements of law. It is a case of prosecution having not
\nproved its case. Even if it is assumed that the document was
\nforged, A-1 cannot be said to have knowledge or to have used
\nit fraudulently or dishonestly. There must be a reason to
\nbelieve that it was a forged one. The expression ‘reason to
\nbelieve’ is defined in Section 26<\/a> IPC. When the facts of the
\ncase in the background of Section 26<\/a> are noted, it cannot be
\nsaid that the appellants had reason to believe that the
\ndocument was forged. The expression used is ‘reason to
\nbelieve’ and not ‘reason to suspect’ which are conceptually
\ndifferent. When the documents were handed over by A-4, there
\nwas no scope for either A-2 or A-1 entertaining any doubt,
\nbecause the source from which the document came is that of
\nAssistant Registrar who is authorised to issue the
\ncertificate. The criminal intent is totally eliminated by he
\nfactual scenario. The natural reaction would have been to
\nbelieve the document to be correct. No knowledge can be
\nattributed to A-1 when the forgery or alleged conspiracy is
\nnot established. When charge of conspiracy has been not held
\nto be proved, the knowledge cannot be traced to the accused
\npersons. Since no conspiracy has been found in A-1 and A-2,
\nby necessary implication Section 34<\/a> is eliminated. Even
\notherwise, the incident took place more than quarter of a
\ncentury back when A-1 was a student and aged about 17 years,
\nand this is a fit case for extending the benefit under the
\nProbation of Offenders Act<\/a> 1958, (in short the ‘Probation
\nAct<\/a>‘).\n<\/p>\n
\tIn response, learned counsel for the State submitted
\nthat clean and cogent evidence show that the actual mark
\nsheets were received by appellant no.1 from the college.
\nThere is no evidence to show that he had applied for re-
\nvaluation for the second year. The procedure to be adopted
\nfor seeking re-valuation is admittedly known to the
\nappellant, because A-1 had applied for the previous year.
\nThe result on revaluation was communicated so far as first
\nyear is concerned. The High Court has analysed the evidence
\nto show that as required in the declaration form A-2 had
\nsigned the application. Therefore, it cannot be said that
\nneither A-1 nor A-2 had any knowledge about the forgery. It
\nhas been conceded before the High Court that Exh.D-4 was a
\nforged document. Even if A-3 and A-4 have been acquitted
\nand\/or conspiracy has not been established, charge under
\nSection 471<\/a> does not get affected.\n<\/p>\n
\tCertain factual aspects need to be noted in the present
\ncase. Though criticism was levelled against the analysis
\nmade by the High Court to find out how on the basis thereof
\nit was held that the document was forged one, we find no
\nsubstance therein. It was clearly conceded before the High
\nCourt that D-4 was a forged document. What was urged before
\nthe High Court was that even if it is forged, the appellants
\nhad not used it deliberately or intentionally as a forged
\ndocument. A comparison of the mark sheet filed by A-1 with
\nthe marks register shows great variance. The High Court has
\nnoticed that the appellants had asked for revaluation of the
\nfirst year pre degree answer sheets as they were not
\nsatisfied with the marks shown in the mark list and claiming
\nthat A-1 should have obtained more marks.  Evidence was let
\nin by the prosecution to indicate that in Part II
\nExamination, optional subjects are there and the subjects
\nare Physics, Chemistry and Biology and the maximum  one can
\nget in one of the above optional subjects is 150 marks and
\n45 marks were required to  be obtained to pass. Part I
\nconsists of English and language other than English. As
\nnoticed by the High Court, Part II (optional subjects) each
\nsubject consists of Paper I, Paper II and practical. The
\nexamination for Paper I is conducted in the first year,
\nwhere A-1 appeared in 1979. Paper II is written in the
\nsecond year of the course and A-1 undisputedly appeared in
\nthe year 1980. The total marks of 150 are split as follows:\n<\/p>\n
\t\tPaper I (Ist year)\t40 marks
\n\t\tPaper II (2nd year)60 marks
\n\t\tPracticals 50 marks<\/p>\n
It has not been disputed by the appellants that the marks
\nobtained by A-1 in the first year for Paper I were known.\n<\/p><\/blockquote>\n
What they had done was to ask for revaluation. A-1 had
\nobtained 24, 33 and 35 marks in Physics, Chemistry and
\nBiology (as evidenced by Ext. P2). There is no provision for
\nseeking revaluation for practical examination and it is only
\nrestricted to theory papers. Unless one knows the marks
\nsecured in a particular examination, the question of seeking
\nrevaluation does not arise. Though a claim was made that the
\nresult of revaluation was not known so far as Ist year is
\nconcerned, the evidence on record clearly proves to the
\ncontrary. In the communication relating to results of
\nrevaluation it had been clearly indicated that there was no
\nchange in the marks. Obviously, the marks shown in excess of
\nthe actual in Exh.D-4 can be related to Paper II. The excess
\nmarks are 33, i.e. 15, 9 and 9 in Physics, Chemistry and
\nBiology respectively. As per Exh. D-4 the marks indicated
\nare 142, 140 and 138 for the aforesaid three subjects. The
\nHigh Court has taken pains to analyse that for the second
\nyear in respect of Paper II the maximum marks are 60 in the
\naforesaid three subjects. If by way of illustration, Physics
\nmarks are taken, originally before revaluation the mark
\nsecured by A-1 was 55 and if excess 15 marks are added to
\nit, as the allegedly forged document shows the total comes
\nto 70 marks. If the total marks for a paper are 60, there
\ncannot be even a shadow of doubt that A-1 could not have
\nsecured 70 marks. Similar is the case of Biology, where the
\nmarks would be 61 against a total maximum marks of 60. Of
\ncourse in Chemistry 59 marks are shown as against maximum 60
\nmarks. If a student gets cent percent marks in paper II in
\neach subject the total would come to 180, whereas on the
\nbasis of D-4 it comes to 190. This impossible difference
\nwould have attracted notice of A-1 and A-2. They are not
\nilliterate persons. As claimed by learned counsel for the
\nappellants, A-1 was a brilliant student and A-2 was a
\nreputed doctor and that they would miss this simple aspect
\nin mark list is not only possible, to believe, but also
\nwould be against normal human experience. The High Court
\nalso on the basis of evidence tendered by PW-60, came to
\nconclude that in the first year for Paper I the total marks
\nsecured by A-1 was 92 and practical marks were 138. Even if
\nit is conceded for the sake of arguments, as submitted by
\nlearned counsel for the appellant, that A-1 secured cent
\npercent marks in Paper II the total marks would have come to
\n92+138+180 which would make a total of 410, and not 420 as
\nExt.D-4 shows.\n<\/p>\n
\tAnother interesting feature has been noticed by the
\nHigh Court to show how it would have been impossible for A-1
\nand A-2 to overlook something tainted appearing to even
\nnaked eyes. Exh.D-4 is dated 30.6.1980. It was not disputed
\nbefore the High Court that the results were published for
\nthe first year degree course on 30.6.1988. If the results
\nwere published on 30.6.1980, Exh.D-4 which is purported to
\nhave been drawn up after revaluation could not have
\nindicated a date seal of 30.6.1980. These factors clearly go
\nto show that A-1 and A-2 had sufficient knowledge that there
\nwas forgery and they had used the document knowing it to be
\nforged. The pretended ignorance stood belied and self
\ncondemned on the indisputable materials on record. The plea
\nof innocence as presently advanced has no substance.\n<\/p>\n
\tThe essential ingredients of Section 471<\/a> are (i)
\nfraudulent or dishonest use of document as genuine (ii)
\nknowledge or reasonable belief on the part of person using
\nthe document that it is a forged one. Section 471<\/a> is
\nintended to apply to persons other than forger himself, but
\nthe forger himself is not excluded from the operation of the
\nSection. To attract Section 471<\/a>, it is not necessary that
\nthe person held guilty under the provision must have forged
\nthe document himself or that the person independently
\ncharged for forgery of the document must of necessity be
\nconvicted, before the person using the forged document,
\nknowing it to be a forged one can be convicted, as long as
\nthe fact that the document used stood established or proved
\nto be a forged one. The act or acts which constitute the
\ncommission of the offence of forgery are quite different
\nfrom the act of making use of a forged document. The
\nexpression ‘fraudulently and dishonestly’ are defined in
\nSections 25<\/a> and 24<\/a> IPC respectively. For an offence under
\nSection 471<\/a>, one of the necessary ingredients is fraudulent
\nand dishonest use of the document as genuine. The act need
\nnot be both dishonest and fraudulent. The use of document as
\ncontemplated by Section 471<\/a> must be voluntary one. For
\nsustaining conviction under Section 471<\/a> it is necessary for
\nthe prosecution to prove that accused knew or had reason to
\nbelieve that the document to be a forged one. Whether the
\naccused knew or had reason to believe the document in
\nquestion to be a forged has to be adjudicated on the basis
\nof materials and the finding recorded in that regard is
\nessentially factual.\n<\/p>\n
Under the IPC<\/a>, guilt in respect of almost all the
\noffences is fastened either on the ground of “intention”
\nor “knowledge” or “reason to believe”. We are now
\nconcerned with the expressions “knowledge” and “reason to
\nbelieve”. “Knowledge” is an awareness on the part of the
\nperson concerned indicating his state of mind. “Reason to
\nbelieve” is another facet of the state of mind. “Reason to
\nbelieve” is not the same thing as “suspicion” or “doubt”
\nand mere seeing also cannot be equated to believing.
\n“Reason to believe” is a higher level of state of mine.
\nLikewise “knowledge” will be slightly on higher plane than
\n“reason to believe”. A person can be supposed to know
\nwhere there is a direct appeal to his senses and a person is
\npresumed to have a reason to believe if he has sufficient
\ncause to believe the same. Section 26<\/a> IPC explains the
\nmeaning of the words “reason to believe” thus:\n<\/p>\n
\t26 – “Reason to believe”: A person is said to have
\n‘reason to believe’ a thing, if he has sufficient cause to
\nbelieve that thing but not otherwise.”\n<\/p>\n
In substance what it means is that a person must have
\nreason to believe if the circumstances are such that a
\nreasonable man would, by probable reasoning, conclude or
\ninfer regarding the nature of the thing concerned. Such
\ncircumstances need not necessarily be capable of absolute
\nconviction or inference; but it is sufficient if the
\ncircumstances are such creating a cause to believe by chain
\nof probable reasoning leading to the conclusion or inference
\nabout the nature of the thing. These two requirements i.e.
\n“knowledge” and “reason to believe” have to be deduced
\nfrom various circumstances in the case. (See Joti Parshad v.
\nState of Haryana<\/a> (AIR 1993 SC 1167) <\/p>\n
\tAs noticed by the High Court in great detail, the
\nfactual position leaves no manner of doubt that the accused
\nappellants had not only the knowledge, but also had reason
\nto believe that the document was a forged one before they
\nused it.\n<\/p>\n
\tAcquittal of some of the co-accused from the charge of
\nconspiracy cannot really affect the accusations under
\nSection 471<\/a> IPC. In Madan Lal v. The State of Punjab<\/a> (AIR
\n1967 SC 1590) two persons were tried for alleged commission
\nof offences punishable under sections 409<\/a>, 465<\/a>, 477-A<\/a> and
\n120B<\/a> IPC. Though the accusations under Section 120B<\/a> were set
\naside, the High Court confirmed the conviction under Section
\n409<\/a> simpliciter. A contention was raised before this Court
\nthat if the charge relating to criminal breach of trust was
\nalong with the charge of conspiracy, conviction simpliciter
\nfor criminal breach of trust would not be valid. This Court
\nheld that if the charge of conspiracy is followed by
\nsubstantive charge of another offence there is nothing to
\nprevent the Court convicting an accused for the substantive
\ncharge even if the prosecution had failed to establish
\nconspiracy. Looked at from any angle the judgment of the
\nHigh Court does not suffer from any infirmity to warrant
\ninterference.\n<\/p>\n
So far as the question of sentence is concerned, we
\nfind that the High Court has already taken a liberal view so
\nfar as A-2 is concerned. In a case when students use forged
\nmark sheets to obtain admission thereby depriving eligible
\ncandidates to get seats and that too to a medical course and
\na doctor is involved in the whole operation, uncalled for
\nleniency or undue sympathy will be misplaced and actually
\nresult in miscarriage of justice. Such types of crimes
\ndeserve as a matter of fact, deterrent punishment in the
\nlarger interests of society.  If at all, the case calls for
\nsevere punishment. We find no substance in the plea relating
\nto sentence or extending the benefits of the Probation Act<\/a>.
\nThe appeal fails and is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A.S. Krishnan And Anr vs State Of Kerala on 17 March, 2004 Author: J Arijit Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 916 of 1997 PETITIONER: A.S. Krishnan and Anr. RESPONDENT: State of Kerala DATE OF JUDGMENT: 17\/03\/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-250361","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA.S. 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