R.C. Chavan, J.
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.
II) Roll No.
III) Date and amount
IV) Name of candidates
V) Case No. /Code No.
VI) Subject paper
VII) Maximum marks
VIII) Original Marks
IX) Marks of 1st examiner in revaluation
X) Marks of 2nd examiner in revaluation
XI) Average marks in both
XII) Result/change or no change
XIII) % increase or decrease
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 crossexamination 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 12 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 Anr. reported at : 1980CriLJ965 . Therefore, though as held in Sarwan Singh Rattan Singh v. State of Punjab, reported at : 1957CriLJ1014 , mere suspicion, however strong, cannot take the place of proof, as observed in Jaharlal Das v. State of Orissa reported at : [1999]237ITR589(SC) , 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 : 2007CriLJ3257 , 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. Jyoti Wire Industries and Ors. reported at 2003 ALL MR (Cri) 2304, and Sharad Prabhakar Ambadkar and Anr. v. Arun Shardram Deshpande and Anr. 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 : [1963]1SCR253 , 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 intangible, non-transferable or nonexpendable.
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 : 2004CriLJ1807 , 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 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 Ors. v. The State reported at ; and that of Surai Prasad Sahu and Ors. v. State reported at : 38(1972)CLT506 .
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 AIR 2004 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.