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Judgment
R.C. Chavan, J.—These appeals are directed against appellants'' conviction for various offences and sentences imposed upon them for those offences by the learned 2nd Additional Chief Judicial Magistrate, Nagpur, in Criminal Case No. 415 of 2002.
In the year 1999, a scandal of bogus degrees, mark-sheets and unwarranted increase of marks in revaluation at various examinations conducted by the Nagpur University surfaced. The University authorities reported the matter to police, by a number of FIRs on which some offences were registered. In course of investigation of those matters many more matters surfaced and they too were investigated. Initially by P.I. Sayyed and after him by P.S.I. Anil Lokhande. Initially chargesheet has been filed in respect of all irregularities and after separate trials were ordered, separate supplementary charge sheets for various offences came to be filed against several offenders.
The facts which led to prosecution and conviction of the appellants are as under:
Appellant Mohd. Ishaque Mh. Hafiz Suleman in Criminal Appeal No. 3 of 2007, original accused No. 1 before the trial Court, was a student of Bapurao Deshmukh College of Engineering, Sewagram, Wardha. He had appeared for Bachelor of Engineering, Part-I examination in Summer, 1996. His Roll Number was 6609. He has scored 28, 25, 14 and 25 marks respectively, in subjects Maths-I, Maths-II, Engineering Mechanics (E/M) and Electrical Engineering (E/T). It appears that there was also some complaints about use of unfair means by appellant Mohd. Ishaque in his Chemistry paper. An inquiry was held in that behalf by Yadav Kohchade, appellant in Criminal Appeal No. 2 of 2007. Yadav Kohchade was Assistant Registrar of Nagpur University. Since an inquiry into the use of unfair means had been ordered, the result of Mohd. Ishaque was withheld. The inquiry was completed and Yadav Kohchade exonerated the appellant Mohd. Ishaque. Thereafter Mohd. Ishaque''s result was declared and then on 27.11.1996 appellant Mohd. Ishaque applied for revaluation of papers Maths-I, Maths-II, E/M and E/T, by paying requisite fees.
Procedure for conduct of examinations is prescribed in Ordinance No. 9 issued by the Nagpur University. It provides, among other things, from Clause 57 onwards, for appointment of tabulators, scrutineers, etc., and their respective roles. This ordinance did not provide for revaluation, which facility was introduced by Ordinance No. 159. Ordinance No. 159 providing for revaluation merely gives sketchy procedure about revaluation. It does not lay down the procedure to be followed internally by the University administration. Therefore, it may be taken that the provisions of Ordinance No. 9 would apply mutatis mutandis to revaluation as well.
The practice, which was followed by the University officials for such revaluation has been deposed to by PW 1 Narayan Ghatole, an employee of the University in the Revaluation Section. According to him, 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.
The answer books of students in the Engineering faculty used to be taken by a special messenger to the examiners appointed for the purpose of revaluation. Normally, the answer book used to be taken to a College in another University, where the Principal or the Head of the Department in the College concerned, used to assign the task of revaluation to the examiners in the said College or University. They were not supposed to write the marks on the answer sheets itself. These examiners were provided with ''revaluation sheets''. These revaluation sheets contained columns of code number and marks assigned to each answer, with a column of total at the end. The revaluation sheet also provided for recording the subject of the question paper and its date. The revaluation sheet was to be signed by the revaluator. One revaluation sheet ordinarily contained 9 to 10 rows so that information in respect of 9 to 10 answer sheets revalued would be filled in. Since the examiners, who revalued the papers, had no access to the roll number, they would mention the code number and then fill up the marks allotted by them for each answer. Since the revaluation of each answer book used to be done by two revaluators, there used to be two such revaluation sheets (for the sake of easy reference, they would be hereinafter referred to as .R1. and .R2. sheets corresponding to revaluation done by the first and the second revaluator). The messenger, who took the papers for revaluation, used to bring back the answer books along with revaluation sheets to the University.
After receipt of answer books and revaluation sheets in the Revaluation Section of the University, the University employees used to de-mask the roll number on the answer sheet and used to fill up column No. (V) in the RTR by recording the relevant code number against the name of the student, his roll number and subject of the paper sent for revaluation.
After this was done by the University employees, the RTR along with R1 and R2 sheets used to be handed over to scrutineers. The scrutineers were select Professors of affiliated Colleges, who were assigned the task of entering marks obtained upon revaluation. The scrutineers used to work in pairs. Two Professors would be working as a team for entering marks in respect of one or more students. Column nos.(IX) and (X) for marks assigned by the two examiners used to be filled in by the scrutineers. They then calculated average marks and filled them up in column No. (XI). In column No. (XII), the scrutineers would mention whether there was a change or no change or an adverse change. In column No. (XIII), they were supposed to mention the percentage of increase or decrease and were expected to sign the entry in column No. (XIV). If there was a change of 5% or more over the original marks then the result of the candidate would change.
It is not in dispute that there is no authentic document to describe this procedure or to discern as to what was the standard procedure to be followed. However, according to Shri Ghatole, after the RTR was filled up, a notification was expected to be issued about change in the result upon revaluation. After this notification, necessary changes were made in the Final Tabulation Register (for short, hereinafter referred to as .the FTR.). The FTR in respect of an examination conducted by the University used to be drawn up after evaluation of answer books at the examination was over, and the result used to be declared on the basis of the FTR. The FTR is in the form of a computer printout since the record was computerised. Thereafter the students used to apply for revaluation. After revaluation, change, if any, in the marks used to be noted in hand in the FTR by the same set of scrutineers.
Accused No. 4 Madhukar Smarth and deceased Suresh Manmode (original accused No. 5) were the pairs of scrutineers, who were entrusted with the task of entering marks of accused No. 1 Mohd. Ishaque in the RTR as well as the FTR. Accused No. 3 Yadav Kohchade was the Assistant Register, Incharge of Revaluation Section at the relevant time. Original Accused No. 2 Banty S/o. Haridas Ukey, who has absconded, was acting as a middle man to connect the students with appellant Yadav Kohchade, Assistant Registrar, incharge of Revaluation.
The scrutiners were shown to have filled in the following marks against various subjects for which Mohd. Ishaque had applied for revaluation.
It is the case of the prosecution that Mohd. Ishaque was approached by or did approach the absconder Bunty Haridas Ukey, who put Mohd. Ishaque in the contact of appellant Yadav Kohchade. Yadav Kohchade caused code numbers to be filled in the RTR, these code numbers were fictitious. This led to filling of fictitious marks against the concerned subjects by the Scrutineers. These marks were possibly filled up by Scrutineer Suresh Manmode, original accused No. 5, allegedly at the instance of appellant Yadav Kohchade. In course of investigation the Investigating Officer secured necessary record from the University, recorded statements of witnesses, collected specimen handwriting of the participants in the conspiracy, sent specimen writing as well as disputed and admitted handwriting to the Examiner of State C.I.D., Pune and after getting information from the Expert and finding that the accused persons were involved in the aforementioned offences charge sheeted them.
Learned 2nd Additional Chief Judicial Magistrate, Nagpur charged two appellants along with scrutineer Madhukar Smarth and absconder Bunty Ukey of the offences punishable under Sections 420, 468, 409, 471 read with Section 109 and 34 of the Penal Code. Since the accused pleaded not guilty to the said charge they were put on trial, at which the prosecution examined in all seven witnesses. They are : P.W. 1 Narayan Ghatol an employee working in Revaluation Section, P.W. 2 Kishore Kanhe, Clerk from Bapurao Deshmukh College of Engineering, where Mohd. Ishaque was studying, P.W. 3 Gangaram Meshram, Assistant Registrar (Revaluation), who took over after the scam was unearthed, P.W. 4 Vishwas Ranjangaonkar, State Examiner of Questioned Documents, P.W. 5 Shri Jageshwar Sahariya, acting Vice Chancellor, who accorded sanction for prosecution of the appellant Yadav Kohchade, P.W. 6 API Laxman Khobragade, who registered office and P.W. 7 P.S.I. Anil Lokhande, who conducted the investigation.
After considering prosecution evidence, in the light of defence raised, the learned Second Additional Chief Judicial Magistrate held the appellants guilty of offences punishable under Sections 420, 468, 471 read with Sections 109 and 34 as well as Section 120-B of the Penal Code.
He sentenced them to suffer:
(a) rigorous imprisonment for three years and fine of Rs. 10,000/- or in default rigorous imprisonment for two months for the offence punishable u/s 420 of the Penal Code,
(b) Rigorous imprisonment for five years and fine of Rs. Fifteen thousand or in default to suffer R.I. for two months for the offence punishable u/s 468 of the Penal Code,
(c) Rigorous imprisonment for one year and fine of Rs. Five thousand or in default rigorous imprisonment for one month for the offence punishable u/s 471 of the Penal Code and
(d) Rigorous imprisonment for six months and fine of Rs. Five thousand or in default rigorous imprisonment for fifteen days for the offence punishable u/s 120-B of the Penal Code.
Appellant Yadav Kohchade was also convicted for the offence punishable u/s 409 of the Penal Code and sentenced to suffer rigorous imprisonment for three years and fine of Rs. Twenty Thousand or in default to suffer rigorous imprisonment for three months.
He directed that the sentences shall run consecutively. He acquitted original accused No. 4 Madhukar Smarth of all the offences charged and ordered separate trial with original accused No. 2 Bunty. As already recounted original accused No. 5 Suresh Manmode had died even before charge can be framed. Aggrieved by their conviction and sentence the appellants have preferred this appeal.
I have heard Shri M.B. Naidu, learned Counsel for appellant Yadav Kohchade, Shri A.M. Rizwy, learned Counsel for appellant Mohd. Ishaque and learned Additional Public Prosecutor Shri S.S. Doifode for the State. The learned Counsel for Mohd. Ishaque adopted arguments of Advocate Naidu. With the help of the learned Counsel for the parties, I have gone through the evidence tendered.
The learned Counsel for appellant Yadav Kohchade submitted that a false case has been filed on the basis of fabricated evidence, which ought to have been rejected at the threshold. He pointed out that there is absolutely no evidence about any deliberations, meeting or conspiracy between two appellants. The learned Additional Public Prosecutor submitted that conspiracy by its very nature is a secrete affair and therefore, it may be difficult to get direct evidence about such conspiracy. Therefore, the evidence about conspiracy would have to be inferentially found from the facts established. He submitted that it has not been disputed in this case that Mohd. Ishaque was facing inquiry for use of unfair means in another paper which inquiry was conducted by appellant Yadav Kohchade in which Yadav Kohchade exonerated appellant Mohd. Ishaque. Appellant Mohd. Ishaque had applied for revaluation in all four papers where he had failed he was shown to have scored marks which enabled him to clear those four subjects, as may be seen from the copy of Final Tabulation Register (FTR). Thus, it cannot be disputed that Mohd. Ishaque has been benefited by the result of revaluation.
In this case, the Professors who revaluated papers of Mohd. Ishaque have not been examined. R-1 and R-2 sheets signed by some Professors are at Exh.32 to 37. As per copy of RTR at Exh.26 code number allotted to Mohd. Ishaque for paper of E/T was 9225. Exh.32 is revaluation sheet filled in by Shri Zadgaonkar in respect of this paper of Electrical Engineering where Code No. 9225 appears. Second such sheet filled in by Professor K.S. Jadhav is at Exh.34. These two sheets show that paper bearing Code No. 9225 was assessed by two examiners who gave 12 marks each, against which 32 and 33 marks have been entered in the RTR.
The learned Counsel for the appellant submitted that non examination of the revaluators would raise a serious doubt as to whether the RTR sheets which have been proved at Exhs. 32 and 34 are in fact in respect of the paper of appellant evaluated by two examiners. He pointed out that there was no reason why revaluators were not examined and it would not be open for other witnesses to prove the writing and signatures of the revaluators. He submitted that two revaluation sheets also do not bear any dates on which the examiners signed the sheets. He pointed out that in this case since the result of Mohd. Ishaque had been with held and was declared only after the inquiry for use of unfair means was over Mohd. Ishaque could not have applied along with other students for revaluation. He submitted that it has not been disputed that code numbers used to be assigned randomly by numbering machine and after completing four digits, code numbers would again begin from 0001 and therefore, there can be two answer sheets with the same code number, if such code numbers were assigned with a gap of time. Therefore, according to him, Exhs. 32 and 34 can as well be of some other candidate whose answer book was also given Code No. 9225.
The learned Counsel for appellant Yadav next submitted that in respect of subject Maths-II, R-1 and R-2 sheets relied on by the prosecution are at Exhs. 33 and 35. They show that answer book bearing Code No. 2483 evaluated by two examiners who had assigned 19 and 20 marks respectively. As against this, 34 and 33 have been entered in the RTR. The learned Counsel for the appellants pointed out that neither Exh.33 nor Exh.35 can be said to reflect marks obtained by Mohd. Ishaque upon revaluation of his Maths-II paper. Exh.35 does not bear name of examination, subject, paper or date of examination. It also does not bear the date on which the sheet was filled in as also name of the examiner. There is only signature of the examiner. As far as Exh.33 is concerned, it seems to have been filled up by the examiner Shri A.V. Deshpande on 01.08.1996 and it is in respect of revaluation of First Year B.E. Applied Maths-II paper on 14.06.1996. The learned counsel wondered as to how examiner Shri Deshpande could have evaluated Mohd. Ishaque''s paper by 01.08.1996 when Mohd. Ishaque applied for revaluation on 27.11.1996. He, therefore, submitted that these R-1 and R-2 sheets at Exhs. 33 and 35 may relate to some other students and on the basis of such sheets the appellant is tried to be victimised.
In respect of Maths-I paper the prosecution possibly relies on R-1 and R-2 sheets at Exh.36 and 37. As far as R-1 Sheet at Exh.36 is concerned, it is filled up by Dr. D.D. Haladwanekar on 05.08.1996 before the appellant applied for revaluation. Therefore, according to the learned Counsel, it could not be in respect of the appellant''s Maths-I paper. Incidentally the candidate is shown to have secured 32 marks as per R-1 sheet where in 31 marks are filled in RTR at Exh.26 against Maths-I paper. R-2 sheet Exh. 37 shows that 33 marks were obtained by the candidate having Code No. 1293. This sheet does not bear any date or name of the paper etc. Presuming it to be R-2 sheet in respect of Maths-I paper of appellant Mohd. Ishaque, the marks do not tally with 32 marks mentioned in RTR. Thus in respect of this paper, marks filled in RTR Exh.26 are in fact less than those in R-1 and R-2 sheets at Exh.36 and 37. The learned Counsel for the appellant, therefore, submitted that there is reason to believe that R-1 and R-2 sheets, on the basis of which entries in RTR at Exh.26 are sought to be falsified are themselves not the relevant R-1 and R-2 sheets.
The learned A.P.P. referred to the evidence of Investigating Officer to explain this discrepancy. The Investigating Officer had stated that Code No. 1293 allotted to Mohd. Ishaque was already allotted to S.K. Saxena bearing Roll No. 1270. Saxena has applied for revaluation on 10th July, 1996. This would explain R-1 and R-2 sheets at Exh.32 to 37 since Exh.36 bears dated 05.08.1996 i.e. after Saxena applied for revaluation and before appellant Mohd. Ishaque applied for revaluation. Code No. 2483 given to appellant Mohd. Ishaque in Maths- II paper had already been given to Prasant Reddy Roll No. 8156 who had applied for revaluation on 6th July, 1996. Code No. 9225 given to the appellant for the subject of E/T had already been given to S.B. Kamble bearing Role No. 6254 since Kamble had applied for revlauation on 9th July, 1996. There can be no doubt that same code number may be again given to next bunch of answer sheets after the series is exhausted. Since, there was a gap of four months there could be similar numbers. However, even this leaved unexplained code No. 2028 assigned to E/M paper of Vishal Sharma and Mohd. Ishaque since both are shown to have applied for revaluation on 27.11.1996. Further this destroys the utility of R-1 and R-2 sheets produced on record to prove that wrong marks were entered against the name of Mohd. Ishaque.
It may be seen that in copy of RTR at Exh.26 against subject E/T Code No. 4021 has been assigned to E/T papers of candidate Iqbal Sheikh as well Vishal Sharma and both are shown to have secured different marks in the same paper. Code No. 2028 is assigned to Vishal Sharma and Mohd. Ishaque for subject E/M and both are shown to have secured different marks. The marks in respect of Code No. 4021 against the names of Iqbal Sheikh and Vishal Sharma had been recorded by scrutineer to show that two candidates had not gained anything out of the revaluation since there was no change in their initial result though marks entered were different.
P.W. 3 Gangaram Meshram, Assistant Registrar (Revaluation) has stated that if same code number is shown to have been given to different candidates in respect of the same paper, he would have cancelled the marks entered by the scrutineer. Shri Gangaram Meshram has stated in his evidence that from the original RTR, code No. 9225 given to Mohd. Ishaque in respect of subject E/T had also been given to one S.B. Kamble. Code No. 9224 given to Saurabh Gupta had also been given to Vijay Kumar Reddy in respect of the same subject. In view of this imbroglio in the absence of evidence to show that the marks entered against the name of Mohd. Ishaque were the ones he earned upon revaluation it would be risky to hold that the marks were entered by the scrutineers in order to favour Mohd. Ishaque at the instance of Mohd. Ishaque or somebody else acting on his behalf.
P.W. 7 PSI Lokhande stated that he had caused handwriting of the person concerned to be collected and sent to the handwriting experts.
P.W. 4 Shri Vishwas Ranjangaonkar, State Examiner of Questioned Documents. Specimen writing of appellant Yadav Kohchade was marked by him as A-1 to A-6. The State Examiner of Questioned Document concluded for red encircled figures marked Q-1 to Q-8 were written by writer who wrote A-1 to A-6 i.e. Yadav Kohchade. Thus, this opinion of the handwriting expert would show that double code numbers have been written in RTR sheets and Exh.26 by appellant Yadav Kohchade.
The learned A.P.P. submitted that this was deliberately done in order to create a confusion and in order to ensure that there can be no trace of the correct marks earned by the candidates concerned. He submitted that this conduct would indicate involvement of the appellants in conspiracy to favour appellant Mohd. Ishaque.
The learned Counsel for the appellant submitted that the opinion of handwriting expert in respect of the numbers only cannot be conclusive of the matter. The handwriting expert has been cross examined on behalf of the appellants at a great length and his examination of the document was assailed on the ground that he had not caused the documents to be photographed. He had also been asked as to whether the magnifying lens used by him bore mark of approval of the Government Bureau of Standards. In short, every attempt was made in order to discredit the evidence of examiner of document Shri Vishwas Ranjangaonkar who has proved his report at Exh.92 and the reasons at Exh.93. It has to be mentioned that P.W. 4 Vishwas is not shown to have any reason to falsely implicate the appellant Yadav Kohchade. It is also worthy of note that the learned Counsel for the appellant Yadva Kohchade submitted that when lacs of students apply for revaluation, entire staff has to work irrespective of rank, and everyone has to do everything, possibly implying that though the appellant Yadav Kohchade was Assistant Registrar, he too could have joined in nothing down the code numbers against the roll numbers in RTR.
The learned Counsel for the appellant had also placed reliance on the judgment of the Supreme Court in Gulzar Ali Vs. State of H.P., , where the Court observed that the modes of proof envisaged in Sections 45 and 47 of the Evidence Act are not exhaustive for proving the genuineness or authorship of the document. Non-exhaustive nature of modes of proof of authorship enumerated in Sections 45 and 46 cannot be equated to such modes bring inconclusive or being inadequate in themselves to prove the authorship. The observations of the Supreme Court would only mean that authorship could be proved by even modes which are not enumerated or included in Sections 45 and 47 of the Evidence Act.
In Alamgir Vs. State (NCT, Delhi), , the Supreme Court held that opinion of Handwriting Expert can be relied on when supported by other evidence, though there was no rule of law that without corroboration the evidence could not be accepted.
In Chandrakant Chimanlal Desai Vs. State of Gujarat, , the Court observed that the evidence of Handwriting Expert could not be decisive of the matter unless the prosecution version inspired confidence or was otherwise believable. In that case, the High Court had referred to the evidence of handwriting without examining the veracity of other prosecution evidence.
It may not be open to the Court to shut its eyes to the human probabilities in the circumstances unfolded. Appellant Yadav Kohchade was head of the Revaluation Section. Two entries of code numbers against the name of Mohd. Ishaque are found by the handwriting expert P.W. 4 Shri Vishwas Ranjangaonkar to be in the handwriting of Yadav Kohchade. There is no reason to disbelieve the word of P.W. 4 Viahwas. Therefore, it would be reasonable to infer that the said code numbers are in the handwriting of appellant Yadav Kohchade. The explanation on behalf of the appellant Yadav Kohchade that the code numbers might have been rightly entered and if proper R- 1 and R-2 sheets are traced out the marks obtained would tally, cannot hold water in face of the fact that Vishal Sharma and Mohd. Ishaque both of whom applied for revaluation on 27.11.1996 as per Exh.26 had been allotted code No. 2028 in the handwriting of appellant Yadav Kohchade. It is incomprehensible that the officer of the rank of Assistant Registrar would enter the same code number for papers of two students of the same subject. Only theory of conspiracy and deliberate entry of wrong code numbers can explain this conduct on the part of appellant Yadav.
P.W. 2 Kishore Kanhe has proved at Exh.69 application of appellant Mohd. Ishaque for admission to B.E. IInd year course filed on 04.07.1995 and B.E. IIIrd year course at Exh.70 filed on 15.07.1997. he has filed with this application marksheets Exh.72, which shows that he had scored 585 marks. This, marksheets show that he has scored 40 marks in Maths-I, 43 marks in Maths-II, 45 marks in Physics, 40 marks in English, 45 in Social Science, 31 in Engineering Mechanics, 43 in Engineering Drawing and 47 in Electrical Engineering. It is thus, clear that the marks in the marksheet on the basis of which the appellant sought admission, so far as they relate to the subjects for which revaluation was sought, tally with those in the FTR corrected upon revaluation results. Thus, it cannot be said that the appellant Mohd. Ishaque had not used his marksheet so obtained for getting admission to a higher class.
The learned Counsel for both the appellants submitted that drawing too many inferences based on too many assumptions amounts to entering into the area of conjectures and surmises. In Sarwan Singh Vs. The State of Punjab, , the Court held that mere suspicion, however strong, cannot take the place of proof. They, therefore, submitted that such conclusions are not permissible. While it would have indeed been eminently desirable that the prosecution should have tendered evidence in respect of each aspect of the matter and should have even found out as to how Mohd. Ishaque and Yadav Kohchade met or communicated, absence of such evidence, in itself, would not permit the Court to shut its eyes, again, to the normal course of human conduct. The learned APP brought to my notice the observations of the Supreme Court in Dhanaj Singh @ Shera and Others Vs. State of Punjab, , to the effect that if primacy is given to such designed or negligent investigation, to omissions or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. However since in the absence of evidence to show how many marks were scored by Mohd. Ishaque on revaluation it would not be possible to conclude that Mohd. Ishaque was benefited by change in his marks and he may get benefit of doubt. Appellant Yadav Kohchade cannot however, be believed to have innocently manipulated code numbers on the same page of RTR. As the learned APP points out this must be with the object of creating confusion. Therefore, the conclusions drawn concerning Yadav Kohchade cannot be faulted.
Relying on a judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, . The learned Counsel for the appellant submitted that in a case resting on circumstantial evidence, every circumstance has to be fully established and the circumstances so established must form a chain so complete as to leave no other conclusion but that of guilt of the accused. The observations in Sharad''s case by the Hon''ble Supreme Court in para 152 of the judgment may be usefully reproduced as under:
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In Orissa State Warehousing Corporation Vs. Commissioner of Income Tax, , the Supreme Court had held that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
There can be no doubt about the propositions which have been reiterated by the Apex Court from time to time in order to guide all the Criminal Courts while considering when conviction could be based on circumstantial evidence. The learned APP, however, rightly pointed out that human probability is important catchword in the judgment of Jaharlal Das. He submitted that the probabilities to be considered are not hypothetical probabilities or strained imaginative probabilities, but those, which would, in the circumstances established, normally be available.
It has to be borne in mind that non-availability of R-1 and R- 2 Sheets or non-examination of the revaluers would cast a shadow of doubt on the question whether appellant Mohd. Ishaque was at all benefitted and therefore, whether he had at all contacted Yadav Kohchade. However, in this case, appellant Yadav Kohchade has entered the same code number in respect of two students for the same subject on the same page of RTR, indicating a design to misguide and manipulate the whole process, which he was supposed to supervise.
The learned Counsel for appellant Yadav Kohchade submitted that Yadv Kohchade was Assistant Registrar and it was not his duty to preserve and hand over answer books, RTR and FTR, as also R-1 R-2 sheets. This was the job of Superintendent who has not been made an accused. Therefore, he submitted that appellant cannot be held guilty for acts beyond the scope of his responsibilities. First, it was argued on behalf of appellant Yadav that since lacs of revaluation cases were required to be handled everyone- irrespective of rank- had to work, justifying his dabbling. Secondly, whosoever may be actually assigned a particular task, as the Assistant Registrar, Yadav Kohchade cannot abdicate his responsibility to ensure that work in the section which he headed is carried on accurately and ethically. Thirdly, since offending entries are proved to be in his hand, there is no question of someone else being responsible.
The learned Counsel for the appellants submitted that conviction for offence punishable u/s 420 of the Penal Code is not justified, since there is no delivery of any property or valuable security.
The learned APP submitted that the conviction u/s 420 (as also u/s 409) of the Penal Code is justified, since the word .property. need not be given a restricted meaning to money or other tangible property. For this purpose, he cited some decisions of the Supreme Court.
In R.K. Dalmia Vs. Delhi Administration, , on which the learned A.P.P. relied, the Court had considered the meaning of the word ''property'' used in Sections 405 and 409 of the Penal Code. The Court observed that the word ''property'' is used in the Penal code in a much wider sense than the expression ''movable property''. The Court observed that there was no good reason to restrict the meaning of the ''property'' to movable property only. The Court held that whether the offence defined in a particular section of the Penal Code can be committed in respect of any particular kind of property will depend, not on the interpretation of the word ''property'', but on the fact whether that particular kind of property can be subject to the acts covered by that section. The learned A.P.P. submitted that in view of this judgment, the marks earned by the appellant-student and the mark-sheet issued to him would be a sort of property and therefore, the offence punishable u/s 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 non-transferable or non-expendable.
In Shivnarayan Laxminarayan Joshi and Others Vs. State of Maharashtra, , the Supreme Court again considered what constitutes ''property'' for the purpose of Section 409 of the Penal Code and held that chose in action is ''property''. This cannot help the prosecution in branding the registers which the scrutineers were supposed to fill up or the mark sheets which are appellant-students got to be property since the chose in action is indeed property recognised as such in law and is also transferable.
As far as forgery is concerned, Clause Secondly of Section 464 of the Penal Code makes dishonest or fraudulent alteration of a document without lawful authority to be forgery. The learned Trial Magistrate has convicted the appellants for offences punishable under Sections 468 and 471 of the Penal Code holding that the appellants are guilty of forgery for the purpose of cheating, as also of using as genuine a document, which he knows or has reason to believe to be forged. As far as appellant Yadav Kohchade is concerned, no fault can be found with this conclusion.
There was no charge for the offence punishable u/s 120-B of the Penal Code conviction for offence punishable under that section cannot be sustained. Since tampering cannot amount to breach of trust in respect of any property in light of the foregoing discussion conviction for the offence punishable u/s 409 of the Penal Code cannot be sustained. For the same reasons the appellant cannot be convicted for the offence punishable u/s 420 of the Penal Code since no property is involved. Appellant Yadav Kohchade cannot be held guilty of cheating since he is not shown to have used the forgeries, except for creating a confusion.
While there can be no doubt that the offences of these type ought to be dealt with sternly, it may be useful to bear in mind the necessity of proportionality in the matter of sentence. The learned trial Magistrate seems to have lost sight of this requirement and has dealt with appellants with a heavy hand as also even hand.
Appellant Yadav Kohchade was officer incharge of the University, who was supposed to supervise this revaluation process. Far from diligently discharging his duties, he abused his office to tamper with the record. Therefore, the sentence imposed upon him by the learned Magistrate appears to be just and does not warrant any interference, except, in respect of offences punishable u/s 120-B, 409 and 420 of the Indian Penal Code and the direction by the learned Magistrate that the sentence shall run consecutively.
As regards the direction of the learned Additional Chief Judicial Magistrate that the sentences shall run consecutively, the learned counsel for the appellants placed reliance on a Full Bench judgment of this Court in Queen-Empress v. Malu Argun and Anr. reported at 1 BLW 1899. In that case, a person had committed housebreaking in order to commit theft. The Court held that while awarding punishment under the provisions of Section 71 of the Penal Code, the Court should pass one sentence for either of the above offences and not a separate one for each offence. The Court also added that if two sentences were passed and the aggregate of them did not exceed the punishment provided by law for any one of the offences, or the jurisdiction of the Court, that would be an irregularity only, and not an illegality
Since one criminal act is made punishable under several sections it may be inappropriate to direct that the sentences shall run consecutively.
In view of this, Criminal Appeal No. 2 of 2007 is partly allowed and Criminal Appeal No. 3 of 2007 is allowed as indicated below:
Conviction of appellant Mohd. Ishaque for the offences punishable under Sections 420, 468, 471, 120-B read with Section 109 and 34 of the Penal Code and sentences imposed upon him are set aside and instead he is acquitted of those offences. Conviction of appellant Yadav Kohchade for the offence punishable u/s 409, 420 and 120-B of the Penal Code and sentence imposed upon him for those offences is set aside. Conviction of the appellant Yadav Kohchade for the offences punishable u/s 468 and 471 of the Penal Code are maintained. However, he is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. Fifteen Thousand or in default to undergo rigorous imprisonment for two months for two counts together. He shall surrender to his bail.