Bombay High Court
Sunilkumar vs State Of Maharashtra on 6 February, 2009
Bench: R. C. Chavan
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Appeal No.18 of 2007
With
Criminal Appeal No.27 of 2007
Criminal Appeal No.18 of 2007
Sunilkumar s/o Gayaprasad Mishra,
Aged about 35 years,
Occ. Service,
R/o. 11, Mire Layout, Umrer Road,
Nagpur,
Presently at Central Prison, Nagpur. ... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
District Nagpur. ... Respondent
Shri R.M. Dagal, Advocate for Appellant.
Shri P.D. Kothari, Additional Public Prosecutor for Respondent.
Criminal Appeal No.27 of 2007
Mr. Madhukar Wamanrao Smarth,
Aged about 71 years,
R/o Sneh Nagar,
Nagpur (In Jail). ... Appellant
Versus
The State of Maharashtra,
::: Downloaded on - 09/06/2013 14:19:28 :::
2
through Police Station Officer,
Police Station Sitabuldi,
Nagpur. ... Respondent
Ms Sangeeta Gaikee, Advocate for Appellant.
Shri P.D. Kothari, Additional Public Prosecutor for the Respondent.
CORAM : R.C. Chavan, J.
Date of Reserving the Judgment : 22-1-2009.
Date of Pronouncing the judgment : 6-2-2009
Judgment :
1. These two appeals are directed against conviction of the
appellants by the learned 2nd Additional Chief Judicial Magistrate,
Nagpur, for offences punishable under Sections 420, 468, 471 and
120-B read with Sections 34 and 109 of the Penal Code.
2. Facts, which led to prosecution and conviction of the
appellants, are as under :
In 1999, a scandal of bogus degrees, mark-sheets and
unwarranted increase of marks at various examinations conducted
by the Nagpur University surfaced. Conduct of examinations,
evaluation of answer papers and declaration of results are
governed by the provisions of Ordinance No.9 issued by the
Nagpur University. This did not provide for revaluation, which
facility was made available by Ordinance No.159. After
revaluation was permitted by the Ordinance, the practice
followed, as elicited from the evidence on record, is as follows :
3. A student had to apply for revaluation within twenty
days from the issuance of mark-sheet. After a candidate applied
for revaluation after paying the prescribed fee, an entry used to be
taken in the Revaluation Tabulation Register (hereinafter referred
to as "the RTR" for the sake or brevity). The RTR contains the
following columns :
I) Sr.No. VIII) Original Marks
II) Roll No. IX) Marks of 1st examiner in
revaluation
III) Date and amount X) Marks of 2nd examiner in
revaluation
IV) Name of candidates XI) Average marks in both
V) Case No./Code No. XII) Result/change or no change
VI) Subject paper XIII) % increase or decrease
VII) Maximum marks XIV) Signature of scrutineer
XV) Remarks
The Clerks in the Revaluation Section used to fill up column
nos.(I) to (IV) and (VI) to (VIII) on the basis of the material which
they already had. Requisition for relevant answer books used to
be sent to the godown. After the answer books were received, the
portion of the answer book containing roll number of the
candidate and marks obtained by him in the original valuation
used to be masked. A code number used to be printed on the
answer book by using a numbering machine.
4. Appellant Sunilkumar Mishra was a student of LL.B.
Part I Degree Course. He had failed in the examination by having
secured 23 out of 100 marks in the subject of Law of Tort and 41
out of 100 marks in subject of Law of Contract. In fact, in , since
he had secured 41 marks, he had passed, but in examination as a
whole he was declared to have failed. He applied for revaluation
of his papers in the subjects of Law of Contract and Law of Tort.
Upon revaluation by two examiners, he was awarded 34 and 33
marks in the subject of Law of Contract, averaging to 34, and thus
an adverse change of 7% was duly noted in the RTR. In the
subject of Law of Torts, the first examiner had awarded only 9
marks and the second examiner had awarded 36 marks. While
filling these marks, appellant Madhukar Smarth had possibly
initially correctly filled up 09 and 36 marks and may have possibly
correctly drawn up even the average, but the marks were then
changed by converting '0' in '09' to '6', erasing '3' in '36' and adding
'5' after '6' in '36'. The average was then changed to 67 and the
percentage of change was shown as '44%'. These changes in the
RTR were then carried out in the Final Tabulation Register (for
short, "the FTR") in the handwriting of Madhukar Smarth.
5. It is the prosecution case that if there was a change in
excess of 20%, it was necessary to bring such change to the notice
of the Controller of Examinations, who was original accused No.2
Prakash Mistry, who was supposed to check such entries
personally. Normally such paper should have been referred to
third Revaluator. After Prakash Mistry approved the change, the
result was declared. It is the prosecution case that appellant
Sunilkumar Mishra conspired with Prakash Mistry as well as the
two Scrutineers to get his marks changed to his advantage in
order to clear LL.B. Part I Examination.
6. In course of investigation, the Investigating Officer
secured samples of handwriting and caused them to be sent to the
State Examiner of Questioned Documents. The Investigating
Officer also secured the relevant record from the University and
on completion of investigation, sent chargesheet.
7. The learned Chief Judicial Magistrate charged
appellant Sunilkumar Mishra for offence punishable under Section
420 read with Section 34 of the Penal Code and appellant
Madhukar Smarth, as also the original accused No.2 Prakash
Mistry for offences punishable under Sections 420, 468 and 471
read with Section 109 of the Penal Code. They pleaded not guilty
to the said charge. Hence, they were put to trial, in course of
which, the prosecution examined in all seven witnesses. They
are : PW 1 Gangaram Meshram, Assistant Registrar (Revaluation),
after the scam broke out, PW 2 Adv. Abhay Paraskar, one of the
Revaluers of Sunilkumar Mishra's paper of Law of Torts, PW 3
Narayan Ghatole, a Clerk in the Revaluation Section, PW 4
Khushal Durugwar, a Clerk in the University College of Law,
Nagpur, PW 5 API Laxman Khobragade, who registered the
offence, PW 6 PI Sayyad and PW 7 PSI Lokhande, who conducted
investigation in the case. On behalf of appellant Sunilkumar
Mishra, four defence witnesses were examined. First was
Sunilkumar himself, second was Hemaji Moundekar, who verified
statement of marks at Exhibit 59, third was Shri Yoganand Kale,
Pro Vice Chancellor of Nagpur University from 22-8-1995 to 18-7-
1999, and the fourth was Shri Bhalchandra Chopane, who was
Vice Chancellor of the University from 23-4-1997 to 18-7-1999.
8. After considering the evidence tendered before him, the
learned 2nd Additional Chief Judicial Magistrate, Nagpur, came to
acquit accused No.2 Prakash Mistry of all the offences with which
he was charged. Appellants Sunilkumar Mishra and Madhukar
Smarth were convicted of offence punishable under Section 420
read with Sections 34 and 109 of the Penal Code and sentenced to
suffer rigorous imprisonment for six years and pay a fine of
Rs.20,000/- or in default RI for three months. For offence
punishable under Section 468 read with Sections 34 and 109 of
the Penal Code, they were sentenced to rigorous imprisonment for
five years and fine of Rs.15,000/- or in default RI for two months.
For offence punishable under Section 471 read with Section 34
and 109 of the Penal Code, they were sentenced to suffer rigorous
imprisonment for rigorous imprisonment for one year and fine of
Rs.5,000/-, or in default RI for one month. And, for offence
punishable under Section 120-B of the Penal Code, they were
sentenced to rigorous imprisonment for six months and fine of
Rs.2,000/- or in default RI for fifteen days. The learned 2nd
Additional Chief Judicial Magistrate also directed that the
sentences were to run consecutively. Aggrieved thereby, the
appellants have preferred these appeals.
9. I have heard Shri R.M. Daga, learned Advocate, for
appellant Sunilkumar Mishra, Ms Sangeeta Gaikee, learned
Advocate for appellant Madhukar Smarth, and Shri P.D. Kothari,
learned APP for the State. With the help of all the learned
counsel, I have gone through the entire evidence on record.
10. PW 3 Narayan Ghatole had proved the copy of RTR
from the original in which marks obtained by appellant
Sunilkumar were entered. This sheet is at Exhibit 23. This shows
that in the paper of Law of Contract, appellant Sunilkumar had
scored 41 marks initially. Upon revaluation, the two Revaluers
assigned 34 and 33 marks, averaging to 34, and, therefore, an
adverse change of 7% was noted. This change has been duly
carried out in the FTR, copy whereof has been proved by PW 3
Narayan Ghatole at Exhibit 24, who was working in the
Revaluation Section and so was familiar with the entries in the
RTR and FTR. He stated that he could identify the handwriting of
Scrutineers. There is no dispute about the entry of marks in the
paper of Law of Contract. In fact this is one of the arguments of
appellant Sunilkumar that since there was a decrease in the marks
in the paper of Law of Contract, it could not be alleged that the
appellant had knowingly induced to have his marks increased
illegally.
11. PW 3 Narayan Ghatole further stated that as far as the
paper of Law of Tort is concerned, it was sent to the two
Revaluers, viz. Advocate Mrs. Vasanti Naik (now the Hon'ble Mrs.
Justice Vasanti Naik) and Advocate Shri Abhay Paraskar, who was
examined as PW 2. PW 2 Advocate Shri Abhay Paraskar stated
that he had examined paper bearing Code No.6101 of Law of Tort
and had allotted 36 marks in all. He proved R2 sheet to be in his
handwriting at Exhibit 27. He stated that the sheet bears his
signature and is dated 16-2-1996. The cross-examination of this
witness does not warrant any disbelief in his claim that he had
examined the said paper.
12. PW 3 Narayan Ghatole had stated that at that time, one
code number used to be given to all the papers of a candidate,
revaluation whereof was sought, and in this case Code No.6101
was given to the papers. As per R1 sheet, which he identified to
be at Article-A, the first Revaluer, i.e. Advocate Mrs. Vasanti Naik,
had allotted 9 marks to the candidate. This sheet has been
marked as Exhibit 46. Though Advocate Mrs. Vasanti Naik, who
had already been elevated to the Bench, was not examined at trial,
there is no reason to disbelieve R1 sheet at Exhibit 46 indicating
that appellant Sunilkumar had scored only 9 marks as a result of
revaluation by Advocate Mrs. Vasanti Naik. The cross-
examination of PW 3 Narayan Ghatole on this point also does not
indicate any reason for not believing that R1 sheet at Exhibit 46 is
one filled in and signed by the first Revaluer. Thus it cannot be
disputed that upon revaluation, appellant Sunilkumar had scored
9 and 36 marks in the paper of Law of Torts. This aspect had
been put up to the appellant in question no.4 in his statement
under Section 313 of the Code of Criminal Procedure and he had
stated that he did not know about it, and not that it was not true.
13. Even a bare look at the photo copy of the relevant page
of R1 and R2 sheets at Exhibit 23 would show that initially 09 and
36 marks were entered in column nos.9 and 10. They were later
changed to 69 and 65 by converting '0' to '6', rubbing out '3' and
additing '5'. In the column of average, the initially entered
number was changed to '67' and a change of 44% was recorded in
column no.13. These 67 marks were eventually entered in the
FTR, extract whereof is at Exhibit 24. As a result of this entry, the
appellant passed and was issued a mark-list.
14. Appellant Sunilkumar has not disputed that he had
initially failed, having scored 23 marks in Law of Torts and that in
the revaluation, he got 67 marks. In fact he stated so in reply to
question nos.16 and 17 in his statement under Section 313 of the
Code of Criminal Procedure. He had also relied on the copy of
mark-list issued to him upon revaluation on 26-7-2001, which is at
Exhibit 59, which shows that he had scored 67 marks in the paper
of Law of Torts. This verified mark-list is possibly sought to be
relied on to show that according to the University, there was
nothing wrong with the marks entered. This conclusion is
fallacious. Since the mark-list would tally with the FTR, unless
the entries in the FTR are changed, there would be no occasion for
the University authorities to say that the mark-list was not correct.
According to the learned APP, the mark-list was correct as per
fraudulently prepared record. Therefore, the only significance of
Exhibit 59 is that appellant Sunilkumar accepts that upon
revaluation, his marks in the paper of Law of Contract were
altered to 34 from initial 41 and in the paper of Law of Torts, they
were altered to 67 from the initial tally of 23. The changes in the
RTR are so glaring that they need no reference to an Expert to
show that the marks initially entered were altered to the
advantage of the candidate.
15. It was contended on behalf of appellant Sunilkumar
that reduction in marks in the paper of Law of Contract is
incompatible with the theory of appellant engaging in a
conspiracy to induce favourable change in his marks. The learned
APP submitted that this is not so. The Scrutineer, who entered
marks for the paper of Law of Contract as well as the paper of Law
of Torts, initially might have done so before any influence was
used or any force was applied to him. Thereafter he found of a
quick-fix way to ensure that the appellant passes by making
minimum changes in the marks already entered and, therefore
changed the marks from 09 to 69 and from 36 to 65 in the Law of
Tort.
16. The contention that appellant Sunilkumar had nothing
to do with the increase of his marks has to be rejected as it is
against the common course of human conduct. There will be
absolutely no reason for a Scrutineer to change marks of appellant
Sunilkumar to his advantage, merely because the Scrutineer
concerned took a fancy for appellant's name.
17. The learned counsel for appellant Sunilkumar submitted
that for proving conspiracy, it would be necessary to demonstrate
that there was a meeting of minds at which a course of action was
charted out. As rightly countered by the learned APP, conspiracy
is something which is a secret affair and, therefore, it will be
difficult to get direct evidence of a conspiracy. Such have been
the observations in State (Delhi Admn.) v. V.C. Shukla and another,
reported at 1980 Cri.L.J. 965. Therefore, though as held in
Sarwan Singh Rattan Singh v. State of Punjab, reported at AIR
1957 SC 637, mere suspicion, however strong, cannot take the
place of proof, as observed in Jaharlal Das v. State of Orissa,
reported at AIR 1999 SC 1388, human probabilities have also to be
considered. It would not be permissible to allow imagination to
run wild and imagine all sorts of improbable possibilities.
Therefore, it has to be held that the marks of appellant
Sunilkumar in the paper of Law of Torts were changed to his
advantage at his instance.
18. The learned counsel for appellant Sunilkumar
vehemently contended that his client has not taken any advantage
of the increased marks and had, in fact, got his result as well as
candidature cancelled. Appellant Sunilkumar did not complete his
LL.B. Degree Course and, therefore, could not be said to have
taken advantage of the change in marks. As rightly countered by
the learned APP, appellant Sunilkumar is not shown to have
thrown the mark-list so obtained in the waste paper basket. On
the other hand, on the basis of the mark-list issued to him, upon
revaluation in Winter 1995 Examination, he had sought admission
to LL.B. Part II Course. In Summer 1997 upon revaluation, the
appellant could clear three subjects of LL.B. Part II Course. He
was, however, unsuccessful in the remaining four subjects. In the
year 1997-98, appellant Sunilkumar was admitted to third year
LL.B. on ATKT basis, obviously, on the strength of the mark-list,
which showed that he had cleared LL.B. Part I Examination,
because his marks in the subject of Law of Torts were changed.
This can be seen from the evidence of PW 4 Khushal Durugwar,
who was Senior Clerk in the Admission Section of Law College. It
is, therefore, not open to appellant Sunilkumar to say that he had
not used mark-list so obtained for prosecuting further studies.
19. The learned counsel for appellant Sunilkumar submitted
that appellant Sunilkumar had moved the University authorities to
have his candidature at the examination to be cancelled and he
had produced on record minutes of meeting of Board of
Examinations held on 13-11-2006. By table item no.1, the Board
resolved that the appearance of Sunilkumar Gayaprasad Mishra at
LL.B. Part I, Part II and Part II Examination for which mark-sheets
no.87, 011754 and 009656 were issued was to be treated as null
and void and that therefore, the return of the documents would be
considered as surrendered and the rights or claims thereto were
treated as abandoned and extinguished. This was at the instance
of appellant Sunilkumar himself. Appellant Sunilkumar had
examined himself to state so. The appellant had stated that he
was a student-leader as also an agitator against various alleged
malpractices in the Nagpur University and had filed 25 writ
petitions against the University. DW 3 Yoganand Kale, Pro Vice
Chancellor, and DW 4 Bhalchandra Chopne, Vice Chancellor, were
examined on behalf of the defence, but it is not clear as to what is
the bearing of their evidence on appellant Sunilkumar's case.
20. The endeavour of appellant Sunilkumar to get his
candidature cancelled itself shows a guilty conscious. Otherwise,
there was absolutely no reason for appellant Sunilkumar to have
his result cancelled. The learned counsel for the appellants relied
on a judgment of the Supreme Court in Hira Lal Hari Lal Bhagwati
v. C.B.I., New Delhi, reported at 2003 ALL MR (Cri) 1376 (S.C.),
where the Court held that upon settlement of a matter, the
criminal liability, arising out of cheating the Government by
evading duty and obtaining customs duty exemption certificate by
concealment of facts, stood compounded. It was in the context of
a scheme known as Kar Vivad Samadhan Scheme. The analogy of
that scheme cannot apply to appellant Sunilkumar getting his
candidature cancelled. The observations in the case in relation to
conspiracy need not be referred to in view of the foregoing
discussion as to how conspiracy could be proved.
21. In Soma Chakravarty v. State (Th. CBI), reported at AIR
2007 SC 2149, on which the learned counsel for appellant
Sunilkumar placed reliance, the Court was considering the
question of framing of charge in relation to offences punishable
under Sections 420, 468 and 471 of the Penal Code. Doctrine of
parity had been referred to in the said case. It related to parity in
similarly situated persons in a Department where fraud had taken
place. As the facts discussed above would show the case of
appellant Sunilkumar is an example in itself where the original
marks were altered by changing numerals and even erasing
numerals. Therefore, this decision is unhelpful to the cause of
appellant Sunilkumar.
22. The learned counsel for appellant Sunilkumar next
submitted that appellant Sunilkumar could not have been charged
for offence of cheating punishable under Section 420 of the Penal
Code, since there was no question of the authorities in the Law
College being made to deliver property on account of appellant
Sunilkumar's cheating. He also placed reliance on the judgments
of the learned Single Judges of this Court 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
Shardram Deshpande and another, reported at 2005 ALL MR (Cri)
601, on the question as to what constitutes cheating.
23. In R.K. Dalmia v. Delhi Administration, reported in AIR
1962 SC 1821, on which the learned APP 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
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
ig intangible, non-transferable or non-
expendable.
24. Considering this, it would not have been open for the
learned Trial Magistrate to hold that the appellant had committed
offence punishable under Section 420 of the Penal Code. He
could be held guilty for the offence punishable under Section 417
of the Penal Code only.
25. The learned counsel for appellant Sunilkumar submitted
that in fact the learned Special Public Prosecutor as well as the
learned Magistrate were bent upon securing the appellant's
conviction. He stated that he had made complaints to this effect
to the learned Sessions Judge. He had also applied for transfer of
the case to any other Court. He made available for my perusal the
copies of orders on such applications.
26. The learned counsel for appellant Sunilkumar submitted
that his client had been victimized and had been slapped with
harshest possible punishment making his apprehensions come
true. Therefore, he submitted that the appellant had not got a fair
trial at the hands of the learned Magistrate and if there has been
some material to indicate appellant's guilt, that ought to be
ignored, since it was a result of an unfair trial.
27. The learned APP contested this contention. He
submitted that it is common knowledge that an unscrupulous
litigant, who know his fate, goes on making false complaints and
transfer applications containing wild allegations against the
Judicial Officer to browbeat the Judicial Officers into either taking
a favourable view or at least put off the unpleasant consequences.
He submitted that an intelligent litigant like appellant Sunilkumar
would not have failed to realize that drastic increase in his marks
in the subject of Law of Torts was bound to land him in trouble,
and, therefore, launched an anticipatory tirade against the Judicial
Officer as well as the Special Public Prosecutor. He, therefore,
submitted that there is no force in the appellant's contention that
his apprehensions have come true.
28. According to the learned APP, what was bound to
happen has in fact happened, not on account of complaints of the
appellant, but as a result of the process of serving just deserts to
the appellant. The painstaking analysis of the situation by the
learned APP is extremely apt and, therefore, no cognizance need
be taken of appellant Sunilkumar's contention that his fears as to
what was to happen have come true. It was his own guilty mind
which was speaking through his complaints and applications for
transfer. His endeavour to have his candidature at the LL.B.
Examination cancelled in the meeting of Board of Examinations
also shows that he was aware of the unpleasant consequences that
had to follow from his getting benefit of increased marks.
Jugglery that he tried to indulge in by submitting that he did not
take advantage of such increased marks was, to say the least,
detestable, particularly in the face of evidence of PW 4 Khushal
Durugwar. It may be mentioned that it was not suggested to this
witness that appellant Sunilkumar had not sought admission to
higher class on the basis of the marks shown to have been
obtained in the paper of Law of Torts.
29. This takes me to the case of appellant Madhukar
Smarth, who was the Scrutineer in whose handwriting the
changes were allegedly made according to PW 3 Narayan Ghatole.
30. The learned counsel for appellant Madhukar Smarth
submitted that Madhukar Smarth has not made the changes in the
marks scored by appellant Sunilkumar in the paper of Law of
Torts. She submitted that PW 3 Narayan Ghatole had not stated
that he had seen appellant Madhukar Smarth making the
concerned corrections. PW 3 Narayan Ghatole's evidence about
identification of appellant Madhukar Smarth's handwriting is just
based on his familiarity with the writing and is an
amateurish conclusion drawn upon observing similarities. In this
case, the Investigating Officer PW 7 PSI Anil Lokhande had stated
about causing specimen writing to be taken and being sent along
with the questioned writings to the Examiner of Questioned
Documents. The said Expert has not been examined in this case.
However, the relevant documents at Exhibits 65, 67 and 69 were
admitted in evidence, since the accused at the trial did not have
any objection. Since several appeals arising out of the university
scandal were heard together, I had an occasion to consider the
record in other cases also. This is the third case in which
appellant Madhukar Smarth was arrayed as an accused for having
allegedly changed the marks in the RTR, when the relevant entries
were not at all referred to the Examiner of Questioned Documents.
It may be seen that the questioned writing Q1 and Q 2, which was
referred to the Expert, and copy whereof is at Exhibit 67, is in
respect of MBBS Examination. Entry Q1 is in respect of student
Jitendra Yadav for his paper of Forensic Medicine and Q2 is in
respect of student Jyoti Chhabra for her papers of Anatomy and
Physiology. Exhibit 65 is the copy of specimen writing taken from
appellant Madhukar Smarth and none of the papers in the
specimen writing have anything to remotely do with the entry in
the RTR relating to appellant Sunilkumar's marks in the paper of
Law of Torts. Therefore, the opinion at Exhibit 69 is thoroughly
irrelevant. In another case, I had observed that it was to be hoped
that it was just a matter of coincidence that appellant Madhukar
Smarth's questioned handwriting was not sent to the Handwriting
Expert. Now, with third such incidence surfacing a doubt, which
could have been avoided by the Investigating Officer as well as the
prosecution, is created.
31. If the Investigating Officer had omitted to send the
relevant questioned writing to the Expert, none prevented him
from causing it to be sent pending trial, getting an opinion and
filing a supplementary final report under Section 173(8) of the
Code of Criminal Procedure. Instead, the investigating machinery
seems to have chosen the easy option of throwing a bunch of
papers at the Court in the belief that the Court will easily accept
those papers without bothering to look into them. It is
unfortunate that the learned Special Public Prosecutor also did not
know that the documents which he was asking the defence to
admit vide application at Exhibit 61 had absolutely no bearing on
the controversy in the case. It is equally unfortunate that the
learned Magistrate should not have seen that the record was being
burdened with documents, which were trash for the purpose of
deciding the case at hand. Rather than bragging about number of
convictions secured, it would have been appropriate for the
Investigating Officer as well as the prosecution to concentrate on
securing convictions, which would stand the test of appellate
scrutiny. It has become fashionable for the Investigating Officer to
chargesheet anyone against whom allegations, which would
attract public eye, are made, without bothering to collect the
evidence, which would lead to their conviction. This they do just
in order to quieten public outrage. Of late, under the guise of
giving even handed treatment to everyone, investigators do not
distinguish between cases which could be successfully taken to
trial and instances, for proof whereof, there is no evidence. This is
done in order to avoid taking the responsibility which the
Investigating Officer and the Prosecutor in charge of the case are
supposed to carry in deciding whether the case can go for trial.
Sending such half baked prosecutions to the Courts leads to not
only distressing acquittals, but also avoidable trampling of liberty
of number of people who eventually get acquitted and carry a
feeling of hurt on being persecuted by the State. Apart from this,
such prosecutions, which eventually fail, to borrow words of
Shakespear, make the law a scarecrow on which birds of prey
merrily perch.
32. The prosecution thus makes it appear that they treat
everyone even handedly and send every suspect for trial to let the
Court decide as to who is the offender. This is, however, a mere
camouflage for shirking the responsibility to decide as to who
cannot be put to trial because of insufficient evidence, or rather
inability to collect adequate evidence. (Such inability may be due
to genuine pressure on time and prioritizing activities, though
such priorities may not be always set on the touchstone of call of
duty and political or other extraneous consideration may weigh).
Even handedness in treatment to all suspects was alas, not noticed
in cases pertaining to this scandal. This can be said since 22
appeals arising out of convictions in this scandal were heard
together and so a comparison became possible. As already
observed, it is a strange coincidence that questioned writing of
Scrutineer Madhukar Smarth was not referred to Examiner of
Questioned Documents in these bunch of cases. May be, in cases
which are still being tried his questioned writings might have been
sent for examination. But in spite of this, the Prosecutor too
mindlessly "pelted" evidence relating to examination of
handwriting at the Court without as much bothering to find out its
relevance. In one of the cases, on the application to tender such
evidence by the learned Special Public Prosecutor, the learned
counsel for accused had endorsed that it was irrelevant. Yet the
learned Special Public Prosecutor did not feel the need to ensure
that the disputed writing was actually examined and evidence of
expert was tendered thereafter. And strangely, the learned Trial
Magistrate readily bit the bait by relying on such irrelevant
evidence. Thus were the blind led by blind.
33. This is not all. In some cases, two Handwriting Experts
were examined without ascertaining whose evidence was vital for
establishing guilt and in some cases, none was examined. In some
cases, the acting Vice Chancellor was examined to prove a
sanction to prosecute, while in some others, he was not examined,
though the officer put to trial was same. This pick and choose is
distressing in the background of the boasts of securing convictions,
which cannot withstand appellate scrutiny, making one wonder if
this too is a gimmick of silencing public outcry, while at the same
time ensuring that wrong-doers do not really suffer, a trick to
direct public ire elsewhere for one's own sins of omission and
commission.
34. Since what has happened in these bunch of cases is
symptomatic of a wider malady possibly affecting our criminal
justice system, it became necessary to record this. An old
University of repute, having a full-fledged Law faculty is the victim
in this case. Rather than a departmental post mortem by the
Director of Prosecution or top police brass, a research - a case
study - into the manner in which these cases were investigated
and prosecuted, vis-a-vis powers and duties of authorities
concerned, may usefully provide policy makers with required
inputs to prepare our systems to effectively deal with such scams
and scandals in future.
35. The path of choosing a populist option may have been
open to the learned Trial Magistrate, but it is decidedly closed to a
court of record, since it will give an undesirable turn to the course
of law and may jeopardise liberty of common man - throwing him
at the mercy of the police and the prosecution. For, if the course
adopted by the learned Magistrate were to be approved, whether
there be evidence to establish guilt or not, if same ragtag
chargesheet is filed and irrelevant evidence is tendered, yet a
conviction would have to be handed down. Rather than playing
to the gallery, a criminal Court must perform its classical role of
zealously guarding the liberty of a citizen.
36. The learned APP tried to salvage the situation by
pointing out that absence of report of Handwriting Expert would
not matter in this case. Relying on the observations of the
Supreme Court in Dhanaj Singh v. State of Punjab, reported at
(2004) 3 SCC 654, the learned APP submitted that such lapses
need not help the offenders. The Supreme Court had observed in
that case that, "if primacy is given to such designed or negligent
investigation, to the
ig omission or lapses by perfunctory
investigation or omissions, the faith and confidence of people
would be shaken not only in the Law enforcing agency but also in
administration of justice". While there can be no doubt that
Courts must be concerned with maintaining public faith in
administration of justice, the dangers in reading too much in
omissions of the prosecution too cannot be overlooked. The
learned APP submitted that appellant Madhukar Smarth had been
specifically asked in question no.4 in his statement under Section
313 of the Code of Criminal Procedure that while Revaluator Smt.
Vasanti Naik had granted 9 marks and Adv. Shri Abhay Paraskar
had granted 36 marks in the subject of Law of Torts, in the
relevant columns in RTR, appellant Madhukar Smarth mentioned
the marks as 69 and 65 with the average shown as 67. The
response to this question from appellant Madhukar Smarth was
that he did not know, and not that it was false. The learned APP
pointed out that appellant Madhukar Smarth is not a rustic
villager, who would not understand the implication of a question
put to him. Therefore, his reply that he did not know coupled
with the evidence of PW 3 Narayan Ghatole that the offending
entry was in the handwriting of appellant Madhukar Smarth,
would show that the marks of appellant Sunilkumar were indeed
changed by appellant Madhukar Smarth. The offences of forgery
punishable under Sections 468 and 471 of the Penal Code were
thus rightly held as proved as against appellant Madhukar Smarth.
37. The learned counsel for appellant Sunilkumar
submitted that the appellant was not heard in the matter of
sentence before the learned Magistrate slapped a harsh sentence
on him. The learned counsel submitted that the judgment is
vitiated because the appellant was not heard, and hearing on the
question of sentence is not confined to oral submissions but also
intended to allow the accused to produce material bearing on the
sentence. For this purpose, he relied on the judgment of the
Supreme Court in Santa Singh v. The State of Punjab, reported at
AIR 1976 SC 2386; that of Delhi High Court in Baburao Chandavar
and others v. The State, reported at 1977 Cri.L.J. 1980; and that of
Surai Prasad Sahu and others v. State, reported at 1972 Cri.L.J.
1346.
38. I have gone through the record. It may be seen that on
9-1-2007, the case was ordered to be fixed for judgment on
10-1-2007. It was, therefore, necessary for the appellant to
remain present in the Court, if he wanted to be heard on the
matter of sentence. When the learned Magistrate pronounced
judgment of conviction on 10-1-2007, appellant Sunilkumar was
not present. An application for exemption was moved on behalf of
the appellant vide Exhibit 126, which was rejected. The learned
Magistrate then proceeded to deliver the judgment, since the
appellant did not remain present. It is not that the learned
Magistrate was not willing to hear the appellant on the matter of
sentence. It may be seen from the judgment that appellant
Madhukar Smarth was actually heard by the learned Magistrate
on the matter of sentence.
39. While it would have been undoubtedly ideal for the
learned Magistrate to adjourn the pronouncement of judgment to
a future date and to secure the presence of the appellant by
causing a warrant to be issued against him, the appellant's
absence is not a very serious infraction, particularly since he was
represented by a counsel. It has not been stated by the learned
counsel for appellant Sunilkumar before this Court that the
appellant wanted to tender any specific evidence or produce any
material at the hearing on the question of sentence. Therefore,
whatever the appellant's counsel could have argued or submitted
before the learned Trial Magistrate, he could have and, has, in
fact, submitted before this Court also. Therefore, the sentence is
not vitiated on account of failure of the learned Magistrate to hear
the appellant.
40. Though there can be no doubt that in cases of this type
punishment ought to be stern, a sense of proportionality should
not be lost. The learned APP relied on a judgment of the Supreme
Court in A.S. Krishnan v. State of Kerala, reported at 2004 AIR
SCW 3066, for the proposition that such crimes need deterrent
punishment in the larger interest of Society. Even in that case, the
Court was concerned with forgery of mark-list. However, in that
case, on the basis of a forged mark-list, the appellant had sought
admission for MBBS Course and in this context, the Court
observed that in cases when student used forged mark-lists to
obtain admission thereby depriving eligible candidate to get seat
and that too in a Medical College, and since a doctor is involved,
leniency is not called for. There can be no doubt about the
principle that in such cases leniency may not be shown. However,
considering the fact that increase in marks was not to enable
appellant Sunilkumar to seek admission to a competitive
professional course against a seat which would have otherwise
gone to someone else, the analogy of the above judgment is not
apt. In light of the fact that in his youth appellant Sunilkumar
committed an indiscretion in jumping for a quick degree, a harsh
sentence of imprisonment may not be called for. Stigma of
conviction would haunt him for the whole of his life and would be
enough to deter him from indulging in such misadventures. It has
also to be borne in mind that in this case, appellant Sunilkumar
was charged of offence punishable under Section 420 of the Penal
Code only. He has not been charged of offences punishable under
Sections 468 or 471 read with Section 109 of the Penal Code. The
learned APP submitted that this defect in the charge need not
result in setting aside appellant Sunilkumar's conviction and the
sentence imposed upon the appellant for the offences punishable
under Sections 468 and 471 read with Section 109 of the Penal
Code. It is not clear as to what prompted the learned Magistrate
to proceed to convict and sentence the appellant for the offences
for which he was not charged, without bothering to amend the
charge. While defects in charge do not vitiate the trial, it would
have to be shown that the convict had reason to know as to what
charge he has to face. Here appellant Sunilkumar had been
charged of offence punishable under Section 420 of the Penal
Code, whereas the other accused persons had been charged of
offence punishable under Sections 468 and 471 read with Sections
34 and 109 of the Penal Code. It may not be unreasonable to
infer that appellant Sunilkumar was thereby made to believe that
he was not to face trial for offences punishable under Sections 468
and 471 of the Penal Code. Therefore, the convictions and
sentences for those offences, as far as appellant Sunilkumar is
concerned, cannot be sustained.
41. The conviction of the appellants for offence punishable
under Section 120-B of the Penal Code is thoroughly unwarranted,
since resort to Section 120-B of the Penal Code is permissible
when there is only a conspiracy to commit an offence, but the
offence is not actually committed, or, when there is a conspiracy
to do an illegal act, which itself is not an offence. In this case,
forgery, which is alleged to have been committed by abetment by
conspiracy, is an offence punishable under Sections 468 and 471
of the Penal Code. Therefore, there was no need to have recourse
to Section 120-B of the Penal Code.
42. As far as appellant Madhukar Smarth is concerned, he
too need not be sent to a long jail term considering the fact that in
the evening of his life, his conviction would rob him of all the
respect and esteem which he may have earned throughout his life
as a Professor. Therefore, rather than sending him to prison, it
would be enough to impose heavy fine on him.
43. Appellant Madhukar Smarth is shown to have been in
jail from 10-1-2007 to 22-2-2007, i.e. a little over one month.
Appellant Sunilkumar was convicted on 10-1-2007. But since he
was absent, a non-bailable warrant was issued against him. He
eventually surrendered on 19-1-2007 and was released on bail on
21-2-2007. Thus he too was in jail for little over a month.
Considering this, the following sentence will meet the ends of
justice.
44. Criminal Appeals No.18 and 27 of 2007 are partly
allowed.
The conviction of the appellants for offences punishable
under Section 120-B and Section 420 read with Sections 34 and
109 of the Penal Code and sentence of rigorous imprisonment for
six months with fine of Rs.2,000/- or in default RI for 15 days,
and RI for six years with fine of Rs.20,000/- or in default RI for
three months respectively are set aside. They are acquitted of
those offences.
The conviction of appellant Sunilkumar for offences
punishable under Sections 468 and 471 read with Sections 34 and
109 of the Penal Code and sentence of rigorous imprisonment for
five years with fine of Rs.15,000/- or in default RI for two months,
and RI for one year with fine of Rs.5,000/- or in default RI for one
month are also set aside, and he is acquitted of the said offences.
Appellant Sunilkumar is convicted of offence punishable
under Section 417 of the Penal Code and is sentenced to suffer
rigorous imprisonment for the period already undergone and to
pay fine of Rs.40,000/- or in default suffer RI for two months.
Appellant Madhukar Smarth is convicted for offence
punishable under Section 468 read with Section 471 of the Penal
Code and is sentenced to suffer rigorous imprisonment for the
period already undergone and to pay fine of Rs.40,000/- or in
default RI for two months for both these offences together.
Judge
