Bombay High Court
Baba S/O Parasram Shambharkar And ... vs State Of Mah. Thr P.So on 8 May, 2025
2025:BHC-NAG:4959
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.75 OF 2019
1) Baba s/o Parasram Shambharkar,
Aged about 47 Years,
Occupation : Principal Aniket College of
Social Work, Wardha,
R/o Sai-Vibhor Apartment,
Flat No. V-10, Jagrut Nagar,
Nari Road, Nagpur - 440026.
2) Narendra s/o Madhao Dandekar (Dead),
through his legal heir,
(2)(i) Smt. Madhuri Wd/o Narendra
Dandekar, Aged about 50 Years,
Occupation : Household,
R/o Wahitpur, Post Sukali Station,
Rah. Seloo, District Wardha. ..... APPLICANTS
// VERSUS //
State of Maharashtra,
Through Police Station Officer,
Police Station, Sitabuldi,
Nagpur. ....NON-APPLICANT
-------------------------------------------
Mr. Shashibhushan Wahane, Counsel for the applicants/accused
Nos.2 and 3.
Mrs. M. A. Barabde, APP for the non-applicant/State.
-------------------------------------------
WITH
CRIMINAL REVISION APPLICATION NO.78 OF 2019
Vandana D/o Laxmanrao Jumde,
Aged 42 Years, Occupation : Household,
R/o. Wadner, Tahsil : Hinganghat,
District Wardha and also
R/o. Talegaon,
Taluka and District Wardha. ..... APPLICANT
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(2)
// VERSUS //
State of Maharashtra,
Through Police Station Officer,
Police Station, Sitabuldi,
Nagpur, District Nagpur. ....NON-APPLICANT
-------------------------------------------
Mr. R. M. Patwardhan, Counsel for the applicant/accused No.1.
Mrs. M. A. Barabde, APP for the non-applicant/State.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
RESERVED ON : 23.04.2025
PRONOUNCED ON : 08.05.2025
JUDGMENT :
1. By preferring these revision applications, the applicants/
accused No.2 namely Baba s/o Parasram Shambharkar and legal
heirs of deceased accused No.3 Narendra s/o Madhao Dandekar
namely, Smt. Madhuri Wd/o Narendra Dandekar in Criminal
Revision Application No.75/2019 and Vandana D/o Laxmanrao
Jumde applicant/accused No.1 in Criminal Revision Application
No.78/2019 challenges the Judgment and order of conviction
passed by the learned 2nd Additional Chief Judicial Magistrate,
Nagpur in Regular Criminal Case No.334/2002 dated 24.04.2007
and confirmed in Criminal Appeal No.98/2007 and 100/2007 dated
28.03.2019.
2. Brief facts of the prosecution case as emerges from the
police papers and recorded evidence are as under:
The applicant Vandana D/o Laxmanrao Jumde was a student
of Aniket College of Social Work, wherein Baba s/o Parasram
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Shambharkar another applicant (original accused No.2) serving as a
Principal and deceased Narendra s/o Madhao Dandekar was serving
as a clerk. She appeared for the Summer Session Examination of
1998 of BSW Part - I and secured 05 marks in compulsory English
subject and during the revaluation, she had secured average 10
marks in the subject of compulsory English and thus, she was
failed. The applicant/accused Vandana D/o Laxmanrao Jumde
converted the figure 10 into 18 in the mark-sheet and 10 into 30 in
the notification and misappropriated the said mark-sheet and
notification as genuine one and submitted the same along with the
admission form of BSW Part - III and sought admission to the said
course. She had filed mark-sheet of BSW Part - I with the
examination form of BSW - III, wherein it was detected that she
was failed in English subject and thus, she duped the Nagpur
University and also committed the offence of cheating forgery and
using forged document as a genuine one with criminal intent. It is
alleged that she was sharing common intention with the other two
applicants/accused namely, Baba s/o Parasram Shambharkar and
deceased Narendra s/o Madhao Dandekar, who being the Principal
and admission Clerk of the said Aniket College. The
applicants/accused Nos.2 and 3 Baba s/o Parasram Shambharkar
and deceased Narendra s/o Madhao Dandekar have accepted and
approved the examination form of the accused Vandana and sent to
it to the Nagpur University and thus, they committed the abetment
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of the offence punishable under Sections 420, 468, 471 read with
Section 109, 34 of the Indian Penal Code, in furtherance of their
common intention. Initially, the charge was framed against the
accused No.1 Vandana Jumde. After recording the evidence of PW-
1 Vimal Meshram it revealed that the applicants/accused Nos.2 and
3 are also concerned with the offences for abetment of the same,
and therefore, in view of Section 319 of the Code of Criminal
Procedure, they are added as an accused.
3. On the basis of the First Information Report, further
investigation was carried out by the Investigating Officer. During
the investigation, he has collected relevant documents from the
University as well as from the College by drawing seizure memo.
After completion of the investigation, the charge-sheet was filed
against the accused.
4. The learned 2nd Additional Chief Judicial Magistrate,
Nagpur framed the charge initially against the accused No.1
Vandana vide Exh.9 and after adding accused Nos.2 and 3 the
charge was also framed vide Exh.10 against them.
5. To prove the charge, prosecution examined in all six
witnesses namely, PW-1 Vimal Dayaram Meshram Exh. 13 was
serving as Assistant Registrar Revaluation, Nagpur University, PW-2
Deorao Satbaji Kumbhare Exh.72 Deputy Registrar Exam in the
Nagpur University, PW-3 Anandrao Govindaji Bankar Exh.84
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Assistant Registrar Revaluation, PW-4 Sanjay Nilkhanth Wankhede
vide Exh.93 service as office Superintendent in Aniket College of
Social Work, PW-5 Narayan Nagoji Thakare vide Exh.140
Superintendent Nagpur University and PW-6 Rajjabali Ashrafali
Sayyad Investigating Officer. Besides oral evidence, prosecution
placed reliance on tampered mark-sheet Exh.15, tampered
notification Exh.36 and photocopy of original notification Exh.37.
6. On appreciating the evidence, the learned 2 nd Additional
Chief Judicial Magistrate, Nagpur held all the accused guilty and
convicted the accused No.1 Vandana Laxmanrao Jumde for the
offence punishable under Section 420 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for three years and fine
of Rs.20,000/-, in default rigorous imprisonment for two months.
The accused No.1 is also convicted for the offence punishable under
Section 468 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for three years and fine of Rs.20,000/-, in
default to suffer rigorous imprisonment for two months and the
accused No.1 is also convicted for the offence punishable under
Section 471 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for one year and fine of Rs.10,000/-, in
default to suffer rigorous imprisonment for one month.
7. The accused No.2 Baba s/o Parasram Shambharkar is
also convicted for the offence punishable under Section 420, 468,
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471 read with Section 109, 34 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for three years and fine
of Rs.20,000/-, in default to suffer rigorous imprisonment for two
months for the offence punishable under Section 420 of the Indian
Penal Code, rigorous imprisonment for three years and fine of
Rs.20,000/-, in default rigorous imprisonment for two months of the
offence punishable under Section 468 of the Indian Penal Code and
rigorous imprisonment for one year and fine of Rs.10,000/-, in
default rigorous imprisonment for one month for the offence
punishable under Section 471 of the Indian Penal Code.
8. The deceased accused No.3 - Narendra Madhao
Dandekar is also convicted in the similar manner as accused No.2 is
convicted.
9. Being aggrieved and dissatisfied with the aforesaid
judgment and order of sentence, the accused Nos.2 and 3 preferred
an Appeal No.100/2007 and the accused No.1 also preferred an
Appeal No.98/2007. The learned Additional Sessions Judge - 12,
Nagpur confirmed the said sentence, hence these revision
applications.
10. Heard learned Counsel Mr. Wahane for
applicants/accused Nos.2 and 3 in Criminal Revision Application
No.75/2019 and learned Counsel Mr. Patwardhan for
applicant/accused No.1 in Criminal Revision Application No.78/2019.
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Learned Counsel Mr. Wahane also placed on record his detailed
submissions and submitted that the entire evidence on record
nowhere discloses that with the criminal intent the accused Nos.2
and 3 shared the common intention with the accused No.1 and
committed the offence. The entire evidence of the prosecution
shows that the accused No.2, who was serving as Principal and
accused No.3 clerk has not verified the documents with due care
and forwarded the same to the University. Except these
allegations, there is no evidence on record to show that they shared
a common intention with the co-accused and committed these
offences for pecuniary benefits. As far as the abetment is
concerned, there is absolutely no evidence to show that the accused
Nos.2 and 3 abetted the accused No.1 by way of instigation, aiding
or in any manner to commit the offence. Section 107 of the Indian
Penal Code (for short 'the IPC') defines abetment. A person is said
to have instigated the another when he goad or urge forward
provoke, incite or encourage to do "an act" which the person
otherwise would not have done. In order to amount to abetment,
there must be mens rea. Without knowledge or intention, there
cannot be any abetment. The knowledge and intention must relate
to the act said to be abetted which is absent in the case. Therefore,
in order to constitute abetment, there must be direct incitement to
do culpable act.
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11. He submitted that in absence of the evidence, the
observation of the learned trial Court and the Appellate Court that
present applicants/accused Nos.2 and 3 with sharing common
intention is erroneous and liable to be quashed and set aside.
12. He further submitted that as the observation of the
learned trial Court and the Appellate Court as to the involvement of
the present applicants/accused by abetting the co-accused itself is
illegal and perverse and therefore, the revision application deserves
to be allowed by quashing and setting aside the conviction.
13. Learned Counsel Mr. Patwardhan for the
applicant/accused No.1 submitted that as far as the accused No.1 is
concerned, there is absolutely no evidence that she has forged the
said mark-sheet. The evidence of the prosecution witnesses shows
that the notification was forwarded to the College and not to the
accused, therefore, no question arises as to the forging of the said
document. He submitted that the ingredients of the offence for the
purpose of attracting the offence under Section 471 of the IPC that
fraudulent or dishonest use of document as genuine and knowledge
or reasonable believe on the part of the person using the document
that it is forged one. He submitted that there was no criminal intent
on the part of the accused. The prosecution evidence especially
evidence of PW-1 nowhere shows that it was the accused No.1, who
has forged the said document. Merely because that document was
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attached with the examination form she is arraigned as an accused.
He invited my attention towards the evidence laid by the
prosecution i.e. PW-1 Vimal Meshram, who deposed vide Exh.13
and Exhs.14 and 15 are proved by her. As per her evidence, in the
mark-sheet Exh.15, 18 marks were written, whereas the accused
No.1/applicant secured 10 marks. In the notification, it was
corrected as 30. He submitted that during cross-examination it
revealed that she was not at all concerned, with the examination
department. Accused No.1 was already exempted in subject
Marathi Sociology, and therefore she was eligible to get admission
in the third year on the basis of ATKT. PW-1 was not concerned
with the revaluation section. She admitted the same. She further
admitted that the student having ATKT in the Winter Session can
appear for upper class in the Summer Session. So, this admission
itself is sufficient to show that the applicant/accused No.1 Vandana
was entitled to have admission in the upper class. PW-1 further
admitted that the mark-sheet or notification was not referred to the
handwriting expert. Thus, in the absence of the evidence of the
handwriting expert, the conviction and sentence awarded is
erroneous and liable to be quashed and set aside. In support of his
contention he placed reliance on Shailesh Ramchandra Tupkary
& etc. Vs. State of Maharashtra reported in 2009(2) AIR Bom
R 354 wherein it is held that failure to avail service of handwriting
expert though was available adverse inference ought to be drawn.
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Mere evidence of witness that entry was in handwriting of accused
when he did not state that entry was made to his presence, not
sufficient to convict accused unless authorship of the entry proved
and prays for quashing and setting aside of the judgment and order
of sentence.
14. Learned APP supported the judgment of the learned trial
Court and submitted that merely because the handwriting expert is
not examined is not sufficient to disbelieve the evidence of the
prosecution. She invited my attention towards the evidence of the
witnesses and submitted that the examination form was submitted
by the accused No.1.
15. It is undisputed that accused No.1 was a student of
Aniket College of Social Work and accused No.2 was the Principal
and accused No.3 was admission clerk. The evidence of PW-4
Sanjay Wankhede vide Exh.93 who was serving as Superintendent
of Aniket College of Social Work disclosed that accused No.1 took
admission for BSW part - I in Aniket College of Social Work, Wardha
in 1995-96. Her admission form is at Exh.104. She also submitted
the relevant documents at the time her admission. She took
admission for BSW part - II in the same college, in the year 1996-
97 and along with the admission form she submitted the mark-
sheet of BSW part - I where it appears that she failed in three
subjects namely, English, Sociology and Elements of Social Work.
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The original mark-sheet of BSW part - I was returned to her on her
application Exh.110. In the year 1996 she took admission in the
College of BSW part - III vide Exh.111. The photocopies of the
marks of accused No.1 of her earlier examination are at Exhs.112 to
118. The photocopies of notification of revaluation is at Exh.119.
Copies of the extract of admission register and receipt book of the
College are at Exhs.123 and 124. The documents produced on
record shows that the above said facts and documents are not
disputed by any of the accused. These documents are seized from
the custody of the College. The University maintains Final
Tabulation Register (FTR) in respect of marks obtained by students.
The extract of FTRs are at Exh.28 to 35. These FTRs are related to
the examinations BSW part-I Summer 1996, BSW part - I Winter
1996, BSW part -I Summer 1997, BSW part - I Winter 1997, BSW
part -I Summer 1998, BSW part -II Summer 1997, BSW part II
Winter 1997, BSW part - II Winter 1998 respectively. The evidence
further shows that the student requires to submit the application
along with the relevant documents to the College before appearing
for the examination while filing the examination form. The duty of
the College to scrutinize the said form and then forward to the
Nagpur University. The evidence of the witnesses further shows
that accused No.1 submitted her examination form Exh.16 of BSW
part - III. It has also come on record that she had also submitted
mark-sheet Exh.15 and notification of revaluation of Exh.36 along
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with the said examination form. It is alleged that the marks of
English (compulsory paper of BSW part - I Summer 1998) of
accused No.1 was converted from 10 to 18 by overwriting in mark-
sheet Exh.15. In notification Exh.36 marks of English paper of BSW
part - I Summer 1998 was converted from 10 to 30. The defence
of the accused No.1 is that as she received the said document and
she has submitted the same along with the examination form and
she is not involved in tampering them. The mark-sheet Exh.15 is
relating to BSW part - I Summer 1998 it shows marks of English
only. On perusal of the documents by the bare eyes it reveals that
the marks 10 converted into 18 by overwriting on it and there is
also tick mark on both the options "Pass and fail". The notification
Exh.36 has also overwriting in the marks which shows 10 converted
into 30. Thus, the documents if perused discloses that the
documents are tampered by overwriting.
16. To corroborate this fact, the prosecution examined PW-1
Vimal Meshram vide Exh.13 who was Assistant Registrar
Revaluation Nagpur University at the relevant time. She was
Assistant Superintendent Examination Nagpur University. As per
her evidence that duty assigned to her section to scrutinize the
examination form. She described the procedure of scrutiny and
submitted that on bare perusal of the mark-sheet Exh.15 it reveals
to her that originally 10 marks are written and later on there is
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overwriting on the digit zero and other zero is connected to each
and thus, it was made as 18 marks. She also stated that as per the
FTR Exh.21 accused No.1 had secured only 10 marks in the
compulsory English in the revaluation and prior to revaluation she
had secured for 5 marks in English and its ITR is at Exh.22. Her
evidence is supported by the documents Exhs.21 and 22. These
documents sufficiently shows that accused No.1 had secured only
10 marks in English after revaluation.
17. The evidence of PW - 2 Deorao Kumbhare Deputy
Registrar, Exam and PW - 3 Anandrao Bankar Assistant Registrar of
Revaluation corroborates the version of PW - 1. The evidence of
PW - 1 to PW - 3 along with the documents Exhs.15 and 56 on
appreciation proves that the said documents are forged. It is an
admitted position that on perusal of the documents it reveals that
the marks which are obtained by the accused No.1 are converted by
overwriting on it.
18. Though learned Counsel for the accused submitted that
there is no evidence of handwriting expert, but the evidence on
record sufficiently disclosed that there is a tampering in the
mark-sheet, notification and the original marks reveals from the
photocopy of the FTR Exh.21. Thus, the evidence of these witnesses
sufficiently shows that the documents which are issued by the
University i.e. mark-sheet and the notification both are tampered.
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Thus, as far as the role of the accused No.1 is concerned, which
establishes from the evidence of the prosecution witnesses.
Notification of revaluation Exh.37 is the original copy and Exh. 36 is
the copy of original notification. It is submitted that the original
FTR and RTR had not filed on record, and therefore their copies filed
on record have no evidentiary value. The originals were brought by
the prosecution witnesses while recording their evidence and after
inspecting and verifying the same, the said documents are returned,
therefore the contention of the learned Counsel for the accused is
not sustainable. Therefore, as far as the evidence against the
accused No.1 is concerned, which sufficiently shows that she is
involved in the tampering with the marks in mark-sheet Exh.15 and
revaluation notification Exh.36. The learned trial Court as well as
the Additional Sessions Judge in Criminal Appeal Nos.98/2007 and
100/2007 rightly appreciated the same and no perversity in the
impugned judgment reveals. The learned Counsel for the accused
No.1 could not point out any illegality in the judgment and order
passed by both the courts below.
19. Learned Counsel for the applicant/accused No.1 placed
his reliance on the decision Shailesh Ramchandra Tupkary Vs.
State of Maharashtra (referred supra) wherein it is observed that
failure to avail service of handwriting expert though was available
adverse inference ought to have drawn.
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20. As far as the present matter is concerned, the oral
evidence on record sufficiently shows the involvement of accused
No.1 in alleged offence of tampering.
21. The essential ingredients of Section 471 are: (i)
fraudulent or dishonest use of document as genuine, (ii) knowledge
or reasonable belief on the part of person using the document that
it is a forged one. Section 471 is intended to apply to persons other
than forger himself, but the forger himself is not excluded from the
operation of the Section. To attract Section 471, it is not necessary
that the person held guilty under the provision must have forged
the document himself or that the person independently charged for
forgery of the document must of necessity be convicted, before the
person using the forged document, knowing it to be a forged one
can be convicted. The Hon'ble Apex Court in A. S. Krishnan &
Anr.Vs.State Of Kerala reported in 2004 ALL MR (Cri) 2566
(S.C.) while interpreting the provision 471 of IPC observed that
"the expression 'fraudulently and dishonestly' are defined in
Sections 24 and 25, IPC respectively. For an offence under Section
471, one of the necessary ingredients is fraudulent and dishonest
use of the document as genuine. The act need not be both
dishonest and fraudulent. The use of document as contemplated by
Section 471 must be voluntary one. For sustaining conviction under
Section 471 it is necessary for the prosecution to prove that
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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."
22. The Hon'ble Apex Court further interpreted the phrases
"intention" or "knowledge" or "reason to believe" and observed that
the expression "knowledge" is an awareness on the part of the
person concerned indicating his state of mind. "Reason to believe" is
another fact of the state of mind. "Reason to believe" is not the
same thing as "suspicion" or "doubt" and mere seeing also cannot
be equated to believing. "Reason to believe" is a higher level of
state of mind. Likewise "knowledge" will be slightly on higher plane
than "reason to believe". A person can be supposed to know where
there is a direct appeal to his senses and a person is presumed to
have a reason to believe if he has sufficient cause to believe the
same. "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". What it means is that a person must have reason
to believe if the circumstances are such that a reasonable man
would, by probable reasoning, conclude or infer regarding the
nature of the thing concerned. Such circumstances need not
necessarily be capable of absolute conviction or inference; but it is
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sufficient if the circumstances are such creating a cause to believe
by chain of probable reasoning leading to the conclusion or
inference about the nature of the thing. These two requirements i.e.
"knowledge" and "reason to believe" have to be deduced from
various circumstances in the case.
23. In the light of the above observation of the Hon'ble
Apex Court if the factual aspect in the present case is taken into
consideration, the evidence laid by the prosecution i.e. evidence of
PW-1 Vimal Meshram who deposed vide Exh.13 and who proved
Exh.14 and 15. The mark-sheet Exh.15 wherein it by bare eyes it
reveals that marks 10 by overwriting the same converted as 18,
whereas the application form Exh.16 is also proved by the witness.
As far as the FTR Exh.21 accused No.1 had secured only 10 marks
in the compulsory English in revaluation against the Roll No.1655.
Before revaluation, she has secured only 5 marks in English and its
FTR is at Exh.21. Thus, the evidence of PW-1 is also supported by
Exhs.21 and 22. It is further corroborated by PW-2 Deorao
Kumbhare, Deputy Registrar Examination and PW-3 Anandrao
Bankar, Assistant Registrar of Revaluation of Nagpur University.
The notification Exh.36 is also on record which also sufficiently
shows that the overwriting in the said notification and marks 10 are
converted into marks 30.
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24. In substance, the evidence on record sufficiently shows
that there is a tampering of the mark-sheet. The said tampering is
also proved by the prosecution on the basis of concerned document
i.e. Exhs.15, 21, 22, 36 and 37. The accused is also charged for the
offence punishable under Sections 467 and 468 of the IPC. Section
467 of IPC relates to the forgery of such documents as valuable
securities and of other documents mentioned. Section 468 of the
IPC deals with the forgery for the purpose of cheating. The offence
is complete as soon as there was forgery with a particular intent.
Section 420 of the IPC deals with cheating and dishonestly inducing
delivery of property. The offence of cheating is made of two
ingredients. Deception of any person and fraudulently or
dishonestly inducing that person to deliver any property to any
person or to consent that any person shall retain any property. To
put it differently, the ingredients of the offence are that the person
deceived delivers to someone a valuable security or property, that
the person so deceived was induced to do so, that such person
acted on such inducement in consequence of his having been
deceived by the accused and that the accused acted fraudulently or
dishonestly when so inducing the person. To constitute the offence
of cheating, it is not necessary that the deception should be by
express words, but it may be by conduct or implied in the nature of
the transaction itself.
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25. The intention is an essential ingredient to constitute the
offence of abetment, it has to be shown that the accused had a
fraudulent dishonest intention at the time of committing the
offence. Thus, as far as the offence under Sections 420, 467, 468
and 471 of IPC are concerned, it is proved that accused No.1 forged
the documents intending to use for the purpose of cheating and she
also used them as genuine, and therefore all the offences are
proved against her.
26. The Hon'ble Apex Court in the case of A. S. Krishnan &
Anr.Vs.State Of Kerala referred supra observed that use of forged
mark sheet for securing admission in medical college, such types of
crimes deserve no leniency and deterrent punishment is necessary.
It is observed by the Hon'ble Apex Court that in a case when
students use forged mark sheets to obtain admission thereby
depriving eligible candidates to get seats and that too in a medical
course. The leniency or undue sympathy will be misplaced and
actually result in miscarriage of justice. It is further observed that
such types of crimes deserve as a matter of fact, deterrent
punishment in the larger interests of society. If at all, the case calls
for severe punishment.
27. In view of the above observation of the Hon'ble Apex
Court as offence punishable under Section 468, 471 and 420 is
made out against the present accused No.1, and therefore, no
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interference is called for as far as the punishment imposed by the
learned trial Court and confirmed by the Appellate Court is
concerned.
28. Now coming to the role of the applicants/accused Nos.2
and 3 are concerned. The evidence on record shows that the
accused No.2 was serving as Principal and accused No.3 was
serving as Clerk in the Aniket College of Social Work. The evidence
on record shows that they were charged with the duty to verify the
documents attached to the examination form, but they certified
falsely that they inspected the documents and found accused No.1
qualifying for admission to the examination and thereby they aided
accused No.1 in using forged document as genuine for securing
admission to the examination. If the evidence of PW-4 is
considered it shows that the accused No.2 was In-charge Principal
since 1997. Exh.16 examination form of BSW part-III bears the
signature of accused No.2 Principal at three places and also bears
the stamp of his College. Exh.37 bears the signature of accused
No.2 Principal at the rear side. It is a copy of notification issued by
the University. Supplementary form of examination filled by the
accused No.1 is at Exh.94 along with the Exh.94 there is an
admission card which is at Exh.95. There is one mark-sheet of
Summer 1997 BSW part-II of accused No.1 attested by the accused
No.2 Principal and it is at Exh.96. The original receipt of the
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examination fees issued by the College is at Exh.97. There is one
mark-sheet photocopy submitted by the accused No.1 attested by
accused No.2 Principal. The admission form of BSW-I of the
accused No.1 is also on record, it bears the signature of Smt. S.P.
Badge, who was the Principal and also signed at the time of seizure
by accused No.2.
29. Thus his evidence shows that the accused No.1 has
submitted the examination form as per the duty allotted. It has to
be accepted by the accused No.3, who also received the
examination fees from accused No.1. The accused No.3 after receipt
of the said form along with mark-sheet and certificate has to verify
the forms and certificates and mark-sheet attached to it and
thereafter he has to place before it to the Principal. In the
examination form there is declaration that examination form and
the documents are verified by the Principal and the accused No.2
had signed the said declaration at Exh.16. The examination form
along with documents have been sent to the Nagpur University by
the Principal. The cross-examination of this PW-4 shows that
whenever admission form is submitted it is to be verified by the
admission clerk and if he is having any difficulty or problem he has
to approach to the Superintendent. He also admitted that after
checking the form by him it was sent to the Principal. The
cross-examination further shows that on bare reading of the
cri.Revn.75 & 78.2019.Judgment.odt
notification, scoring, overwriting and tampering is visible. After
seeing the notification, scoring, tampering and overwriting were
noticed in the notification by him. He further admits that after
noticing the tampering in the notification the admission form was
sent to the Principal. He further admits that after checking the form
by the clerk and by him, the Principal thought that everything was
complied and hence, he signed on the same. He further admits that
the form was placed before the Principal after checking the same
and then the provisional admission was given. He admitted that
when the University found that the notification is tampered,
overwriting and scoring, then it was intimated to the College and
accordingly the Principal cancelled the admission of the accused
No.1. He further admits that after receiving the admission form,
there is a procedure which is not followed in this College and form
was not checked and it was forwarded.
30. Thus, the evidence of PW-4 shows that the clerk has to
verify the form thereafter he has to re-verify the same and
thereafter it is to be forwarded to the Principal. Considering the
evidence on record, admittedly there is no allegation that
applicants/accused Nos.2 and 3 have forged the documents Exhs.15
and 36. Only allegation against the present accused Nos.2 and 3 is
that they have not verified and without verifying the same, they
have endorsed the certificate that they have verified the same and
cri.Revn.75 & 78.2019.Judgment.odt
found to be correct. As without verifying and scrutinizing the
document they have endorsed, and therefore, it is alleged against
them that they have aided the accused No.1 in forging the
documents and forwarding the same to the University.
31. To charge someone on the charge of the abetment, the
prosecution must prove that the accused played the role in said
abetment. Section 107 of IPC explains to attract the abetment, the
accused has to either encourage the individual or to do the act
which would come with the purview of aid. Instigation is to goad,
urge forward, provoke, incite or encourage to do "an act". The
dictionary meaning of the abetment shows there should be intention
to provoke incite or encourage the doing of an act by the said
person. Abetment involves a mental process of instigating a person
or intentionally aiding a person in doing of a thing. Without a
positive act on the part of the accused to instigate or aid the
conviction or abetment is not maintainable. The intention of the
legislature and the ratio of the cases decided by this Court are clear
that in order to convict a person for abetment there has to be a
clear mens rea to commit the offence. It also requires an active act
or direct act which led the other accused to commit an offence. This
act must have been intended to push the accused in committing
such act.
cri.Revn.75 & 78.2019.Judgment.odt
32. In order to bring a case within the purview of Section
107 of IPC, there must be an evidence to show that the person have
abetted the commission of offence and have played an active role
by an act of instigation or aiding or by doing certain act to facilitate
the commission of the said offence. Therefore, the act of abetment
by the person charged with the said offence must be proved and
established by the prosecution. Thus, the requirement under
Sections 107 and 108 of IPC is a positive act on the part of the
accused to instigate or aid in committing the offence by the other
accused and in the absence of the same, the conviction cannot be
sustained. There has to be a clear intention to commit the offence.
The test which is to be applied is that on the basis of the material or
evidence on record it is to be ascertained whether there is anything
to indicate even prima facie that the accused intended to commit
said act. To attract the provisions what is to be shown is that the
accused have actually instigated or aided to the another co-accused
in committing the said act. There must be direct or indirect nexus
between the act of the accused as to the abetment and the act of
the other accused who committed the said offence. In the light of
above well settled legal position, if the evidence in the present case
is appreciated, the evidence of PW-1 shows that it was the duty of
the accused Nos.2 and 3 to verify the documents filed by the
accused No.1 and thereafter forward the same to the University,
which is not done by the accused Nos.2 and 3. The
cri.Revn.75 & 78.2019.Judgment.odt
cross-examination on behalf of accused Nos.2 and 3 also shows that
it was the accused No.1, who had misutilized the mark-sheet and
the notification by sending the examination form to the University.
It further shows that the notification of result of revaluation was
directly sent to the concern student. The evidence of PW-2 Deorao
Satbaji Kumbhare, who was serving as a Deputy Registrar
Examination in Nagpur University also states about the tampering of
the mark-sheet and notification and the entire allegation is levelled
against the accused No.1. He also deposed that the examination
form received from the accused No.1, there was a tampering in the
mark-sheet and the notification. His cross-examination also shows
that the notification of revaluation and mark-sheet of revaluation is
sent to the college and the student by the University. The evidence
of PW-3 Anandrao Govindaji Bankar who works as an Assistant
Registrar in Nagpur University also testified against the accused
No.1 and the evidence PW-4 Sanjay Wankhede who was serving as
the office Superintendent Aniket College of Social Work also shows
that on bare reading of the notification the scoring, overwriting and
tampering was visible. His admissions given during the
cross-examination shows that initially, the clerk has to check the
same, thereafter it is to be forwarded to the Superintendent and
after checking the same, it is to be forwarded to the Principal. He
admitted the procedure that the admission form is to be submitted
and checked by the admission clerk and if he is having any difficulty
cri.Revn.75 & 78.2019.Judgment.odt
then he has to approach to the Superintendent. Though the clerk
takes this admission form to the Principal to obtain the signature
before obtaining the signature, he has to verify all the aspects. His
evidence further shows that admission form of the accused No.1
shown to him by the admission clerk, prior to sending the same to
the Principal, he checked it and thereafter it was sent to the
Principal. He also admitted that the Principal might have signed on
it as it is verified by the accused No.3 as well as PW-4. Thus, there
is no evidence to prove that the applicants/accused Nos.2 and 3
either forged the documents or aided her for making forgery of
those documents, and therefore, it cannot be said that they have
committed an offence under Section 468 read with Section 109 of
IPC. The offence of abetment is also not made out against the
accused Nos.2 and 3. At the most, it can be negligence or
dereliction in duties, which is assigned to them. No criminal intent
can be attributed to them. Therefore, even if taking the allegation
as it is at its face value it cannot be said that the allegation would
amount to instigating or aiding the applicant/accused No.1 to
commit the offence. There is no reasonable nexus between the
present accused No.1 and accused Nos.2 and 3. At the most, it is
the negligence which can be attributed against the accused Nos.2
and 3, therefore, the conviction recorded by both the Courts against
the accused Nos.2 and 3 is liable to be quashed and set aside.
Accordingly, I proceed to pass following order:
cri.Revn.75 & 78.2019.Judgment.odt
ORDER
(i) Criminal Revision No.75/2019 is allowed.
(ii) The impugned judgment passed by the 2 nd
Additional Chief Judicial Magistrate, Nagpur in Regular
Criminal Case No.334/2002 and confirmed by the Additional
Sessions Judge-12, Nagpur in Criminal Appeal No.100/2007 is
hereby quashed and set aside.
(iii) The applicants/accused Nos.2 and 3 are hereby
acquitted from the charges punishable under Sections 420,
468 and 471 read with Section 34 of the Indian Penal Code.
(iv) The accused Nos.2 and 3 shall surrender their bail
bonds.
(v) The accused Nos.2 and 3 are set free.
(vi) Criminal Revision Application No.78/2019 is
dismissed.
(vii) The applicant/accused No.1 Vandana d/o
Laxmanrao Jumde shall surrender herself before the trial
Court within four weeks from today.
(viii) The record and proceeding of the Regular Criminal
Case No.334/2002 shall be sent to the lower Court forthwith
along with the copy of the judgment.
Both the revisions applications are disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 08/05/2025 19:54:09
