Mohan Rajaram Gaikwad vs The State Of Maharashtra
2021 Latest Caselaw 2095 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CRIMINAL APPELLATE JURISDICTION

                CRIMINAL REVISION APPLICATION NO. 310 OF 2002

Mohan Rajaram Gaikwad                        }
Age : 27 years, Occ. : Service,              }
R/o At Post Varap, Tal. Kalyan,              }
Ditrict. Thane.                              }      ... Applicant.
                                             }         (Orig. Accused)

          Versus
The State of Maharashtra                     }      ... Respondent.


Mr. V. S. Mhaispurkar, Advocate for Applicant.
Mr. S. S. Hulke, A.P.P. for Respondent-State.


                                    CORAM : A.S. GADKARI, J.

DATE : 2ND FEBRUARY 2021.

ORAL JUDGMENT :

The present Revision under Section 397 read with Section 401 of

Criminal Procedure Code has been filed by the applicant, impugning the

Judgment and Order dated 6th March 1999 passed by the learned

Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai in Criminal Case No.

36/P/96, thereby convicting him under Section 465, 468, 471 and 420 read

with 34 of the Indian Penal Code (for short, "I.P.C.") and sentenced to suffer

rigorous imprisonment for six months and to pay a fine of Rs.500/- on each

count, in default of payment of fine to further suffer rigorous imprisonment

for one month on each count and the Judgment and Order dated 17 th June

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2002 passed by the learned Additional Sessions Judge, Greater Mumbai in

Criminal Appeal No.83 of 1999, dismissing the said Appeal and confirming

the Judgment and Order dated 6th March 1999 passed by the Trial Court.

2. Heard Mr. Mhaispurkar, learned counsel for applicant and Mr.

Hulke, learned A.P.P. for respondent-State. Perused entire record.

3. The prosecution case in brief is that, the applicant (original

accused No.1) and Siddiqui Dastagir (original accused No.2) in connivance

with absconding accused No.3 prepared forged marksheets of their 12 th Std.,

Higher Secondary examination showing higher grade of marks and submitted

it to the J.J. Grant Government Medical College for securing admission in

MBBS course.

4. The record indicates that, during the pendency of trial Siddiqui

Dastagir (original accused No.2) expired and the trial stood abated against

him. The said fact of alleged forgery committed by the applicant came to the

knowledge of Dr. Ravindra S. Inamdar (PW-3), Vice-Dean of J. J. Group of

Hospitals Mumbai when the said marksheets were sent for verification to the

Higher Secondary School Board, Mumbai Division. The Higher Secondary

School Board interalia had informed the Vice Dean of J. J. Group of Hospitals,

Mumbai, that the marksheets submitted by those two persons i.e. applicant

and accused No.2 did not tally with the record maintained by the Board.

5. In support of its case, the prosecution has examined in all six

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witnesses, namely, Dr. Ravindra S. Inamdar (PW-1), Vice-Dean of J. J. Group

of Hospitals; Shri Sidaram B. Shinde (PW-2), Office Superintendent from the

Grant Medical College; Shri Vijay M. Kharat (PW-3), Junior Clerk serving with

Grant Medical College; Shri Hindurao G. Kamble (PW-4), an employee from

Higher Secondary School Board; Mr. Siraj M. Shaikh (PW-5), A.P.I., the

Investigating Officer and Shri Ramchandra J. Thorawat (PW-6), Police Sub-

Inspector then attached to Tilak Nagar Police Station, Mumbai, who recorded

the F.I.R. and carried out initial investigation of the present crime.

The learned Metropolitan Magistrate, 20th Court, Mazgaon,

Mumbai after recording evidence of the said witnesses and hearing the

learned Advocates for the respective parties has convicted the applicant for

the offence punishable under Section 465, 468, 471 and 420 read with 34 of

the I.P.C., as noted hereinabove. The Criminal Appeal No. 83 of 1999

preferred by the applicant has been turned down by the learned Additional

Sessions Judge, Greater Mumbai by its impugned Judgment and Order dated

17th June 2002.

6. Mr. Mhaispurkar, learned counsel appearing for the applicant

submitted that, the testimony of material witnesses would reveal that, there is

no evidence at all on record, even to remotely suggest that the applicant has

in fact committed forgery of the said marksheet. He submitted that, it is the

specific defence of the applicant that, he received the said marksheet (Exh.-8)

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from his college and he has no role to play in forging it. He further submitted

that, the Trial Court has proceeded on surmises and hypothesis, and recorded

conviction of the applicant as the applicant herein did not examine any

defence witness in his support. He submitted that, both the Courts below

have committed serious error in not appreciating the evidence available on

record in its proper perspective while recording conviction of the applicant.

He submitted that, both the impugned Judgments and Orders suffer from

illegality leading to perversity and therefore needs to be quashed and set aside

and prayed that, the present Revision Application may be allowed.

7. Per contra, Mr. Hulke, learned A.P.P. vehemently opposed the

Revision and submitted that, there is sufficient material available on record to

infer that, the applicant committed forgery of the marksheets as he is the only

person who was interested in getting admission to MBBS course. He

submitted that, the evidence of PW-1 and PW-4 reveals that, the applicant in

fact had secured very less marks in Subject Code Nos. 54, 55 and 56, i.e. in

the subject of 'Physics', 'Chemistry' and 'Biology'. He further submitted that,

both the Courts below have not committed any error while passing impugned

Judgments and Orders and therefore the present Revision may be dismissed.

8. Though, the prosecution has examined six witnesses in support of

its case, the evidence of PW-1, PW-4 and PW-5 is material and relevant for

deciding the present Revision.

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PW-1 has admitted that, the Dean of the said college received

letter from Higher Secondary Education Board that, the marksheet submitted

by the applicant did not tally with the marksheet of the Board. In his

testimony he has stated that, the said marksheet according to him was a

forged document. Mr. Hindurao Kamble (PW-4) in his testimony has

admitted that, he verified the marksheet of the applicant from the register

maintained by the Board and found that, the applicant has secured 40 marks

in Physics, 44 marks in Chemistry and 43 marks in Biology, though, his

marksheet depicts 86, 84 and 82 marks respectively for the said subjects.

That, the marksheet submitted by the applicant did not tally with the record

maintained by the Board. A.P.I. Mr. Shaikh (PW-5) in his cross-examination

has admitted that, he did not investigate from where marksheets were

prepared (Exh.8-Colly). He also did not enquire from the college of the

applicant from where he passed his 12th Std. exams about the original

marksheets. This is the only relevant and material evidence available on

record, on the basis of which Trial Court has sentenced the applicant for the

aforestated offences allegedly committed by him. A minute perusal of

evidence of PW Nos. 1, 4 and 5 would clearly indicate that, there is no

material at all on record, to even remotely infer that, the applicant has in fact

forged his marksheet.

9. It is thus clear that, the prosecution has not put-forth cogent and

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convincing evidence to safely infer that, it is the applicant only who in

connivance with absconding accused No.3 forged his marksheet to secure

admission for MBBS course in J. J. Grant Government Medical College.

10. It is to be noted here that, the Trial Court in para 11 of the

impugned Judgment has observed that, though it gave sufficient opportunity

to the applicant to examine defence witness, he did not do so as the applicant

felt that, he has committed mistake and his self conscious did not permit him

to do so. That, if the applicant would not have been at fault, he would have

fought with the college Authority, but he did not do so and has raised a

defence that, he received the said marksheets from his college. That, the

conduct of applicant speaks about his guilty mind. The trial Court therefore

inferred that, the applicant has forged the said marksheet.

This observation of the Trial Court is contrary to the settled

cannons of law, as the principle of criminal jurisprudence requires the

prosecution to prove guilt of the accused beyond reasonable doubt by

adducing cogent evidence in that behalf. Our Constitution gives right to

accused person even to keep silence and it is always for the prosecution to

prove its case by leading evidence in that behalf.

11. As noted earlier, it is the categorical defence of the applicant that,

he received the said marksheet from his college. The Investigating Officer did

not thought it fit and necessary to make enquiry with the college of the

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applicant and to verify the genuineness of the said fact. The prosecution has

miserably failed to established the fact that, the applicant has forged the said

marksheet.

In view of the aforesaid discussion, the applicant is entitled for

benefit of doubt which is accordingly given.

12. Revision Application is accordingly allowed and the impugned

Judgment and Order dated 6th March, 1999, passed by the learned

Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai in Criminal Case No.

36/P/96 and the Judgment and Order dated 17 th June 2002 passed by the

learned Additional Sessions Judge, Greater Mumbai in Criminal Appeal No.83

of 1999, are hereby quashed and set aside and the appellant is acquitted from

all the charges framed against him.

(A.S. GADKARI, J.)