Kerala High Court
A.S. Krishnan And Anr. vs State Of Kerala on 21 August, 1997
Equivalent citations: 1998CRILJ207
Author: N. Dhinakar
Bench: N. Dhinakar
JUDGMENT N. Dhinakar, J.
1. This Criminal R.P. is posted before this Bench for hearing on the orders of the Hon'ble The Chief Justice.
2. Petitioners are A1 and A2 and they were tried before the trial Court along with 2 others for charges under Sections 471, 420, 467, 468, 120-B and 201 read with Section 34, IPC. While the trial court acquitted the other two accused (A3 and A4) it convicted the petitioners for the charges under Sections 471, 420, 120-B and 201 read with Section 34, IPC and sentenced each of them to suffer rigorous imprisonment for a period of one year and 2 years for the offences under Sections 471 and 420, IPC respectively and 6 months each for the charge under Sections 120-B and 201 read with Section 34, IPC with a direction that the sentences shall run concurrently. The petitioner were acquitted of the charges under Sections 467 and 468, IPC. As stated earlier A3 and A4 were acquitted of all the charges framed against them. Aggrieved by the said order of conviction and sentence the petitioners preferred an appeal and the appellate court allowed the appeal in part by acquitting the petitioners for the charges under Sections 201 and 120-B read with Section 34, IPC and confirming the conviction and sentence imposed upon the petitioners for the charges under Sections 471 and 420 read with Section 34, IPC. Hence this revision.
3. Brief facts, shorn of unnecessary details, necessary to dispose of this revision can be summarised as follows : The 1st petitioner is the son of petitioner No. 2 and petitioner No. 2 was running a nursing home at Emakulam during the relevant period and the 4th accused in the case was an Asst. Registrar, Examination Wing, Kerala University. The 1st petitioner was a Pre-degree student during the academic years 1978-79 and 1979-80 in the Mar Ivanios College, Thiruvanathapuram, affiliated to the Kerala University. He appeard for the first year Pre-degree examination in April, 1979 and for second year Pre-degree examination in April/May, 1980 both with Register No. 152984. After the second year examination the 1st petitioner got a first class Pre-degree mark-list through the Mar Ivanios College with the following marks :
English : 204/300 Hindi : 109/150 Physics : 127/150 Chemistry : 131/150 Biology : 129/150 ---------------------------- Grand total : 700/900 ----------------------------
and the total for the optional subjects, viz. Physics, Chemistry and Biology is 387/450. The above mark-list issued by the Kerala University to the 1st petitioner through Mar Ivanios College, Thiruvananthapuram was received by both the petitioners with their acknowledgment in the mark-lists kept in the college. As both the petitioners were aware that the marks secured by the 1st petitioner were insufficient to get an admission in any medical college for the first year M.B.B.S. course in Kerala on merit they entered into a criminal conspiracy along with the 3rd and 4th accused on some day between 30-6-1980 and 10-10-1980 for forging a mark-list showing higher marks and pursuant to such conspiracy the 4th accused in the case procured a blank mark-list of Pre-degree examination and by fraudulent means and without the knowledge and authority of the Controller of Examinations (P.W. 1) got the impression of the facsimile signature of P.W. 1 and the University emblem seal affixed on the blank mark list form. The 4th accused wrote in his own handwritng falsely and fraudulently the following marks in the form as secured by the 1st petitioner in the Pre-degree final year examination :
English : 204/300 Hindi : 109/150 Physics : 142/150 Chemistry : 140/150 Biology : 138/150 ---------------------------- Grand total : 733/900 ----------------------------
showing a total of 420 marks out of 450 marks for the optional subjects, viz. Physics, Chemistry and Biology. It is also the case of the prosecution that the 4th accused in the case forged the initials of the concerned section assistant, who actually prepared the true mark list issued through Mar Ivanious College and received by the petitioners. The 4th accused also attested a true copy of the mark list (Ext. P27). He forged with his designation and seal and entrusted both the forged mark list and its true copy attested by him (Ext. P27) to the petitioners. Ext. D4 is the forged mark list. Petitioners 1 and 2 thereafter prepared an application form for admission to a medical college during the year 1980-81 with their signature by incorporating the marks found in Ext. D4, the forged mark list, fully knowing the forged nature of Ext. D4 and forwarded such application together with the attested true copy Ext. P27 of Ext. D4 to the medical college, Thiruvananthapuram with the fraudulent intention to make the concerned authorities to believe that the marks shown in the application are the real marks obtained by the 1st petitioner and thereby cheated the selection committee and obtained admission for the first year M.B.B.S. course on merit basis. It is further alleged that the petitioners with the intention of causing disappearance of the evidence of commission of the crime destroyed the true genuine mark list (the true copy of which is marked as Ext. D8 in this case) received by them from Mar Ivanious College and thus the petitioners and the other acqitted accused committed the offences.
4. When questioned under Section 313, Cr. P.C. with regard to the incriminating materials appearing against the petitioners, the 1st petitioner stated that he had nothing to do about the various procedures existing in the University in the conduct of the examination and that he made the applications for revaluation both in respect of first and second year examinations. The application for revaluation of the second year Pre-degree examination was entrusted to his father, with a view to have the revaluation for the 2nd year expedited as the result of his request for revaluation of the first year Pre-degree examination was not intimated to him even by then. According to him, the revalued mark list, Ext. D4 was brought to him by the 2nd petitioner. He stated that while he was studying at Mar Ivanious College he secured good marks in the first year and 2nd year Pre-degree examinations and believed that Ext. D4 is the genuine mark list received by him after revaluation of both the years. According to him, he believed that Ext. D4 was genuine and hence he applied with it for admission to medical college and had there been any doubt in his mind about the genuineness of Ext. D4 he would not have applied. According to him, after he received the mark list of first year Pre-degree examination he was not satisfied with the marks secured by him and hence sought for revaluation and was not informed by the University authorities about the result of the revaluation so sought by him of the first year Pre-degree course and under the circumstances he requested his father to find out the revaluation results of both the years. The 2nd petitioner in his statement, recorded under Section 313, Crl.P.C. stated that since the 1st petitioner was a bright student and the marks obtained were less he asked him to apply for revaluation of both the years and as the revaluation result of the first year was not received even on the date of the result of the publication of the second year Pre-degree examination and in order to try for admission to M.B.B.S. course for the 1st petitioner he requested the 4th accused to speed up the revaluation for the 2nd year who agreed to do the same. According to the 2nd petitioner he entrusted the revaluation forms and fees with the 4th accused and after 2 weeks when he went and enquired the 4th accused requested 10 more days. After ten days when he went and enquired with the 4th accused he was told that the revaluation mark list is ready and the same was handed over to him. According to him, he received Ext. D4 from the 4th accused on the belief that it is a genuine mark list. He also requested the 4th accused to give him a true copy of Ext. D4 attested by him and accordingly the 4th accused prepared a true copy of Ext. D4. attested the same and handed over both Ext. D4 and Ext. P27, the attested copy of Ext. D4. He stated that had he known that Ext. D4 was a forged one he would have taken steps.
5. The trial Court held that Ext. D4 is a forged mark list and it took the view that there is no conclusive evidence to establish the complicity of the 3rd and 4th accused in the case. It acquitted the 3rd accused on the ground that the 3rd accused introduced the 4th accused to the 2nd petitioner only in Dec. 1980 or in the first week of January, 1981 and therefore the meeting at the nursing home of the 2nd petitioner could not be for the purpose of procuring Ext. D4 and even otherwise the evidence of PW17 does not reveal at that time that there was any talk among them about the creation of Ext.D4. The 4th accused was acquitted as the trial Court took the view that there is no conclusive evidence to show that Ext. P27, a true copy of Ext. D4 was attested by A4. In this connection the evidence of PW 18, who according to the prosecution was familiar with the handwriting of A4 was not accepted and acted upon as PW 18 in his evidence has admitted that he cannot find any peculiarity in the handwriting of A4. The trial Court was of the view that there was no chance for PW 18 to look at the papers from the department manned by the 4th accused and hence he is no a competent witness to speak . about the alleged handwriting found in Ext. D4. The trial Court further held that there is no conclusive evidence to show that Ext. P48 contains the specimen writings of A4 in view of the unsatisfactory evidence of PW 63, the Crime Branch Supdt. of Police - the investigating officer died during trial - under whose supervision the investigation of this case was conducted. The trial Court found fault with the investigating agency in not obtaining the admitting writings of A4 and sending them to the handwriting expert. PW 57 to compare the handwritings in Ext. P27. On the above findings the 3rd and 4th accused in the case were acquitted.
6. While convicting the petitioners the trial Court took the view that the petitioners were aware of the normal procedure adopted by the Kerala University for making an application for revaluation as admittedly they sought revaluation earlier for the first year Pre-degree examination and the present plea of the petitioners that they approached A4 and handed over the application form in person along with the fee of Rs. 50/-seeking revaluation of the 2nd year examination could not be accepted as any application form for revaluation must be sent only by registered post. Relying upon the evidence of P.W. 1, the controller of Examinations, the trial Court held that a candidate applying for revaluation has to pay the prescribed fee after the result is published and the application form must be sent by registered post. If any benefit is obtained in the revaluation the same will be entered in the tabulation register, Ext. P2 and the candidate will be directed to surrender his original mark list which will be cancelled and a fresh mark list will be issued and that mark list will never contain the date of publication of the result. As per Ext P1 the date of publication of the result is 30-6-1980 and therefore Ext. D4 could never contain this date since it could be issued only long after the date of publication of results and after revaluation. Further, according to P.W. 1 whether there is change or no change a memo will be sent to the candidate intimating the said fact. According to P.W. 13 in the application for revaluation it should be specifically stated the subject for which revaluation is applied for and also the original marks obtained in that subject and on revaluation if the candidate has secured 10% or more marks benefit will be given to the candidate which will then be intimated to him by issuing a memo. If no benefit is obtained another memo will also be issued to the candidate with a statement that the original marks awarded will stand and also with a further statement "you are entitled to identify your answer books'. A candidate who obtains the benefit will thereupon surrender the original mark list and a fresh mark list will be issued with the date after the date of revaluation. Ext. P22 is a carbon copy of a memo issued to the 1st petitioner for revaluation of answer books of the first year Pre-degree examination wherein it is stated that the candidate has not obtained more than 10 marks. Ext. P22 (a) is the initial of P.W. 13 and as Per Ext. P22 the candidate (the 1st petitioner) was directed to appear and identify his answer papers before 7-2-1980 and accordingly the 1st petitioner appeared and P.W. 17, the Deputy Registrar made his writings in Ext. P22. According to the prosecution if there was any application for the year 1980 examination an application could have been naturally received in P.W. 13"s section and no such application from the 1st petitioner was received. According to P.W. 13 the 1st petitioner himself appeared for identifying the papers in respect of the first year Pre-degree examination as P.W. 17 the Deputy Registrar directly called her to bring the answer papers before him and accordingly it was she who herself carried the answer papers before the Deputy Registrar for identification by the candidate. Normally a candidate will approach her section directly and as the candidate in this case adopted a different course by going to P.W. 17, she stated that she remembers the first petitioner having come to the University to identify the answer sheets in respect of the first year Pre-degree examination. Though endorsement is to be made by the candidate in the memo, Ext. P22, it was not done by him because the candidate directly approached P.W. 17 as against the usual course. P.W. 13 further stated that speeding up of a revaluation could be done only by P. W. 1. In view of the evidence of P.W. 13 and P.W. 17 and Ext. P22 the trial Court was of the view that the present case of the petitioners that as there was delay in revaluation of the answer sheets of the first year Pre-degree examination they had to approach the 4th accused directly seeking his assistance to expedite the revaluation of the answer sheets of the 2nd year Pre-degree examination could not be accepted. It also took the view that the marks as found in Ext. D4 do not tally with the marks as found noted in Ext. P2, the tabulation register, maintained by the Kerala University and that Ext. D4 also does not contain the initials of the assistants in the concerned section. According to the trial Court petitioners 1 and 2 the son and father, have agreed or caused to be done an illegal act and to Commit an offence procured a forged mark list and used it as genuine and under the circumstances they are liable to be convicted for the offence of conspiracy. As the petitioners had no case that they surrendered the original mark list received by them from Mar Ivanious College, the trial Court also held that there cannot be any doubt that the original Pre-degree mark list which they received from the said college was destroyed and hence liable to be punished for the charge under Section 201 read with Section 34, I.P.C. As they used Ext. D4 for obtaining a seat in a medical college at Thiruvanathapuram they are also liable to be punished under Section 471, I.P.C. and consequently for the offence under Section 420, I.P.C. as well. In that view of the matter, the petitioners were convicted and sentenced as stated earlier.
7. The appellate Court concurred with the findings of the trial Court and held that as the petitioners did not apply for revaluation of the optional subject for the second year Pre-degree examination nor any fees for the said purpose had been remitted by them and that the marks found in Ext. P2 do not tally with Ext. D4 the petitioners are liable to be convicted under Sections 471 and 420 read with Section 34, I.P.C. The appellate Court in detail considered the procedure adopted by the Kerala University as proved by the prosecution through its witnesses and held that the petitioners are guilty of the two charges mentioned above. The appellate Court while convicting the petitioners for the charges under Sections 471 and 420 read with Section 34, I.P.C. held that they cannot be convicted for the offences under Sections 120(B) and 201 read with Section 34, I.P.C. as in the view of the appellate Court there could not have been any conspiracy between petitioners 1 and 2 who are the son and father respectively and that there is no evidnece to the effect that there was a conspiracy between the two. The appellate Court took the view that any conviction of the petitioners under Section 120(B) on the basis of surmises is bad in law. Similarly it held that the petitioners cannot be said to have caused disappearance of evidence of the real marks secured by the 1st petitioner as such marks can easily be proved by the registers maintained at the University and that there is no obligation on the part of the petitioners to produce the documents to disprove a charge. It held that the failure of the petitioners to produce the original mark list received by them through Mar Ivanious College will not make them liable for an offence punishable under Section 201 r/w 34, I.P.C. Accordingly the appellate Court acquitted the petitioners of the charges under Sections 120(B) and 201 read with 34, I.P.C.
8. Senior counsel appearing for the petitioners contends that the Courts below have erred in convicting the petitioners is view of the acquittal of A3 and A4 in the case. According to the petitioners' counsel, if the transaction of conspiracy and using a forged document are inseparable, and if the charge of conspiracy fails the charge under Sections 471, I.P.C. also has to fail. According to the petitioners, as the case of the prosecution is that document, Ext. D4 is forged the knowledge of the petitioners that it is a forged document is on the basis of conspiracy and not that they knew that Ext. D4 is forged in view of the circumstances noticed by the Courts below the conviction under Section 471, I.P.C. is bad. If conviction under Section 471, I.P.C. is bad in view of the failure of the prosecution to prove its case of conspiracy the resultant conviction under Section 420, I.P.C. also is bad. In short, the counsel contends, if the conspiracy as put forth by the prosecution was rejected by the Courts below the petitioners cannot be convicted for the charges under Sections 471 and 420 r/w Section 34, I.P.C.
9. We may at the outset say that whenever. there is a failure on the part of the prosecution to prove a charge of conspiracy it cannot be held that the other offences alleged to have been committed in pursuance of a conspiracy also have to be rejected. If the facts and circumstances prove an offence simpliciter without proving the charge of conspiracy the Courts can accept those facts and circumstances and hold that a person is liable to be convicted for the offence which was committed, though according to the prosecution, in pursuance of a conspiracy. There can be no dispute that an offence of conspiracy is an independent offence and a failure by the prosecution to prove the offence of conspiracy will not automatically result in acquittal of the other offences.
10. In Madan Lal v. State of Punjab AIR 1967 SC 1590 : 1967 Cri LJ 1401, two persons were tried before the trial Court for charges under Sections 409, 465, 477A and 120-B, I.P.C. on an allegation that they in pursuance of conspiracy committed breach of trust by misappropriating funds and the trial magistrate convicted them for the charges under Sections 409, 477A and 120B and awarded different sentences. On appeal, the appellate Court acquitted one of the accused of all the charges and acquitted the other accused of the charges under Sections 477A and 120B, I.P.C. but upheld the conviction under Section 409, I.P.C. and the High Court confirmed the said conviction under Section 409, I.P.C. simpliciter. A contention was raised before the Supreme Court that the charge as to criminal breach of trust against the appellant and the acquitted accused being one under Section 409, I.P.C. and Section 120B and there being no charge under Section 409, I.P.C. simpliciter, a conviction under Section 409, I.P.C. is not valid. It was further argued that as the charge of conspiracy has ended in acquittal, the appellant could not be convicted under Section 409, I.P.C simpliciter. Repelling the contention, the Supreme Court held that if the charge of conspiracy to commit criminal breach of trust is followed by a substantive charge of criminal breach of trust in pursuance of such conspiracy, there is nothing to prevent the Court convicting an accused under Section 409, I.P.C. even if the prosecution fails to establish conspiracy. Similarly in Babu Singh v. State of Punjab 1996 SCC (Crl) 730 : 1996 Cri LJ 2503 when one of the two accused was convicted for an offence under Section 302, I.P.C. simpliciter, though before the trial Court he was tried along with another under Sections 120B and 302, I.P.C. on an allegation that they conspired to kill their younger brother, which acquitted both of them of the charge under Section 120B, the Supreme Court while dealing with the contention, that the prosecution case being one of conspiracy between the two accused to murder their younger brother and in furtherance of conspiracy the appellant having Said to have assaulted the deceased by means of Takua and the charges of conspiracy having been not established by the prosecution evidence, the charge of murder against the appellant must also fail, held that merely because the charge of conspiracy failed the prosecution case so far as the actual assault being given by the appellant cannot be ipso facto thrown away and that there is no substance in the argument that the entire case of prosecution must fail if once the charge of conspiracy is not established. So we hold that to maintain the conviction of the petitioner for the charges under Sections 471 and 420 read with Section 34, I.P.C, a conviction under Section 120B, I.P.C. is not essential as they are independent of the offence of conspiracy.
11. In this case there is no dispute that Ext. D4 is a forged document and in fact counsel appearing for the petitioners admits that Ext. D4 is a forged document, but according to him the said document was brought into existence by the 4th accused as appears from the evidence and he must have played a fraud upon the petitioners by handing over a forged document to them. The petitioners could not have been in the knowledge of the procedure adopted by the Kerala University for them to know when they received Ext. D4 from the 4th accused that it is a forged document. The existence of the tabulation register, Ext. P2 maintained at the University which contains the true marks and the absence of initials of the assistants concerned in Ext. D4 cannot be put against the petitioners to show that the petitioners knew that Ext. D4 is a forged document, as there is no material to suggest that the petitioners knew about the said procedure. It is also the case of the petitioners, contends the counsel, that they never received the results of their request for revaluation of the first year Pre-degree examination and Ext. P22 marked by the prosecution will not further its case as Ext. P22 does not contain the signature of the first petitioner. Further, the petitioners' counsel contends that, the prosecution failed to produce the despatch register maintained at the University to conclusively establish that Ext. P22 was in fact sent to the 1st petitioner. The fact that the petitioners did not remit Rs. 50/- for each paper and the absence of an application form at the university seeking revaluation of the papers of the 2nd year Pre-degree examination cannot also be held against them, contends the counsel, as it is their case that they contacted the 4th accused in person and paid the amount to him with a view to have the revaluation of the 2nd year papers expedited. According to the counsel for the petitioners, on the evidence and in view of the findings of the Courts below petitioners are entitled for an acquittal. In support of his plea the learned counsel relies upon two judgments of the Supreme Court, one rendered in Bhagirath v. State of Madhya Pradesh AIR 1976 SC 975 : 1976 Cri LJ 707 and the other in Hari Dev Sharma v. State (Delhi Administration) AIR 1976 SC 1489 : 1976 Cri LJ 1176. In the first case cited supra the Supreme Court held that the prosecution can succeed by substantially proving the very story it alleges and must stand on its own legs. It cannot take the advantage of the weakness of the defence nor can the court on its own make out a new case for the prosecution and convict the accused on that basis. In the second case cited above, the Supreme Court held that if the vital part of the prosecution story is disbelieved and even if there are circumstances which are highly suspicious the court cannot convict a person if one part of the prosecution case is dependent on the other part.
12. We have given our anxious consideration to the contentions raised by the counsel. We are of the view that if the charge under Section 471 IPC stands proved, on the facts and circumstances of the case, independent of the charge of conspiracy then the petitioners can be convicted for the said charge under Section 471 IPC. It is not in dispute that Ext. D4 is a forged document and that the petitioners used Ext. D4 before the selection committee of a medical college to obtain a seat for the first petitioner in the first year M.B.B.S. course.
13. The next question is whether the petitioners knew or had reason to believe that Ext. D4 is a forged document when they used the same before the selection committee for the purpose of obtaining a seat in the medical college at Thiruvananthapuram.
14. Ext. D4 on the very face shows that it is a forged document and to attribute knowledge to the petitioners that it is a forged document a conviction for the charge of conspiracy, in our view, is not essential as the charge of conspiracy and the charge of using a forged document as genuine as contemplated under Section 471, I.P.C. are separable on the facts of this case and we now set out the reasons for the said conclusion.
15. It is not disputed that the petitioners have asked for revaluation of the first year Pre-degree answer sheets as they were not satisfied with the marks shown in the mark list and felt that the 1st petitioner must have obtained more marks. The evidence as let in by the prosecution shows that the optional subjects are in part II and they are Physics. Chemistry and Biology and the maximum one can get in any one of the above optional subjects is 150 marks and minimum to be obtained for a pass is 45 marks. Part I consists of English and language other than English.
16. In Part II (Optional subjects) each subject consists of Paper I, Paper II and Practical. The examination for Paper I is written in the first year i.e. in this case the first petitioner wrote his examination in the year 1979. Paper II is written in the second year of the Pre-degree course i.e. in this case it was written by the 1st petitioner in the year 1980. The total marks of 150 is split up as follows: 40 marks for Paper I (for first year). 60 marks for Paper II (for 2nd year) and 50 marks for Practicals and the total maximum marks of the above three is 150. As it is the admitted case of the petitioners that they knew the marks obtained by the first petitioner for the first year Pre-degree course i.e. for Paper I - Physics, Chemistry and Biology - and asked for revaluation for the said subjects immediately after the results were published for the first year Pre-degree course it is to be safely presumed that the petitioners knew that the first petitioner obtained 24 marks in Physics, 33 marks in Chemistry and 35 marks in Biology as is evident from Ext. P2. In fact in the statement recorded under Section 313, Crl. P.C. to question No. 27 the petitioners have admitted this fact. It is also not in dispute that the revaluation can be sought for theory paper as there is no provision for revaluation for practical examination. It is further made clear by Ext. P53 that there can be no revaluation for practical examinations. Any candidate who wants to apply for revaluation of his papers must first apply and obtain the detailed mark list so as to enable him to give the marks secured by him in the column meant for that in Ext. P. 53 and even if he has not filled it up as now claimed by the petitioners they must at least have known the marks obtained by the first petitioner in Paper I and Paper II as well as in practical examinations. The case of the petitioners itself is that they applied for revaluation only for Paper II as they have already applied for revaluation of Paper I and in fact to Question No. 64 in 313 Crl.P.C. statement they have stated that they have applied for the 2nd year also and that the result of revaluation of the first year was not communicated to them. It is also admitted by the petitioners that they earlier applied for revaluation of Paper I which means they knew the marks obtained by the 1st petitioner in the first year, and that there was no change in the marks even after revaluation in Paper I. So the excess marks shown in Ext. D4 over and above the marks shown in Ext. D8 (Ext. D8 is the true copy of the mark list containing the original marks obtained by the 1st Petitioner) can be referable only to Paper II. In other words the alleged revalued marks in Ext. D4 are the marks obtained in reference to Paper II of the 3 subjects of the 2nd year which means the marks obtained in practical examination and in Paper I are excluded. From the above discussion the following facts emerge :
Part II Qptional Subjects
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Maximum Marks: 150 Maximum Marks: 150 Maximum Marks: 150 Minimum Marks 45 Minimum Marks 45 Minimum Marks 45
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PHYSICS CHEMISTRY BIOLOGY
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Pager I Paper II Pratical Pager I Paper II Pratical Pager I Paper II Pratical 24 55 48 33 50 48 35 52 42 Grand total : 127 Grand total : 131 Grand total : 129
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So the grand total for Part II is 387 marks, but as per Ext. D4 total marks of 142 are shown for Physics, total marks of 14.0 are shown for Chemistry and total marks of 138 are shown for Biology and the grand total for Part II as per Ext. D4 is 420 marks, i.e., the excess marks in each subject after revaluation of Part II is as follows :
Physics : 142 - 127 = 15 Chemistry : 140 - 131 = 9 Biology : 138 - 129 = 9 So the excess marks total to 33.
17. As stated earlier, the maximum marks one can obtain in Paper II (i.e. in second year) for Physics. Chemistry and Biology is 60 marks in each subject. If the excess 15 marks, which the petitioners claim as the marks obtained by the 1st petitioner after revaluation is added to 55 marks secured by him before the revaluation in Part II it will be 70 marks for Physics which is more than the maximum of 60 marks one can get and similarly the excess 9 marks obtained after revaluation if added to 52 marks secured by him in Biology in Paper II before its revaluation it will be 61 marks which is once again more than the maximum of 60 marks and the excess 9 marks obtained after revaluation is added to 50 marks secured by him in Chemistry in Paper II before its revaluation it will be 59 marks out of a maximum 60 marks. The maximum marks that one can get in Paper II, even if he scores a centum in each subject in Paper II are 180 marks, but whereas as shown above the 1st petitioner has obtained 190 marks (70 + 61 + 59) which is impossible. The excess marks now found in Ext. D4 can only be in respect of Paper II as even according to the petitioners they were not informed about the result of revaluation of Paper I and if there had been a change in the marks in Paper 1 they would have been communicated though according to the prosecution the petitioners were informed that there was no change in the marks after revaluation of Paper I as seen from the evidence by P.W. 13. In view of the above the petitioners cannot claim ignorance by saying that they were not aware that Ext. D4 is a forged document when they used it before the medical college authorities to secure a seat and say that as A4 is acquitted the knowledge that the petitioners knew or had reason to believe that Ext. D4 is a forged document also has to be rejected.
18. P.W. 60 in his evidence has stated that the marks obtained in Paper I (for the first year) by the first petitioner in Physics, Chemistry and Biology is 24 + 33 + 35 respectively totalling to 92 marks. The marks obtained in practicals are 48 + 48 + 42 respectively totalling to 138 marks. Now even if we assume that the first petitioner has obtained centum in each of the three subjects in Paper II he could only obtain 180 marks and if the same is added to the marks obtained in Paper I and practical examination it could only be 410 marks (i.e. 92 + 138 + 180), but whereas Ext. D4 shows total marks of 420. This evidence of P.W. 60 is not controverted by any cross-examination on this aspect.
19. A mere perusal of Ext. D4 would have shown to the petitioners that it was impossible for the 1st petitioner to obtain more marks than the maximum prescribed for the said subject and it was not possible for the 1st petitioner to obtain more than 410 marks and the 420 marks shown in Ext. D4 must be only on account of forgery. If in spite of the knowledge that the first petitioner could not obtain more than 410 marks the petitioners have used Ext. D4 showing 420 marks for the purpose of obtaining a seat in a medical college at Thiruvananthapuram, they are certainly liable to be convicted under Sections 471 read with Section 34, I.P.C. as they knew or had reason to believe that Ext. D4 must be a forged document. Petitioners have also not disputed that Ext. D4 was used by them when they made an application to a medical college at Thiruvananthapuram and produced the same before the authorities when the first petitioner was called for an interview. It escapes our comprehension as to how the petitioners can claim ignorance that when they used Ext. D4 they were not aware that the said document was a forged document in view of the uncontroverted material extracted above. No special knowledge is required for the petitioners to know that one cannot get more than the maximum marks and the acquittal of the charge of conspiracy will not be a ground for the petitioners to be acquitted of the charges under Sections 471 and 420 read with Section 34, I.P.C. On the facts, the two judgments of the Supreme Court, referred to by the counsel, will not apply to this case.
20. It is also impossible for us to believe that the petitioners were not aware that Ext. D4 is a forged document when they used the same as it contains the date seal 30-6-1980. It is not in dispute that the results were published for the second year Pre-degree course on 30-6-1980 and the petitioners were furnished with the original of Ext. D8 bearing a date seal 30-6-1980. If as claimed by the petitioners they applied for revaluation of the marks for the second year then they certainly could not have obtained the revalued mark list bearing the date seal 30-6-1980 as admittedly Ext. D4 was given to them after they applied for revaluation of the marks. As Ext. D4 was admittedly received by them much later to 30-6-1980 it could not have contained the date seal 30-6-1980 and even on this score we feel the petitioners had knowledge or at least and reason to believe that Ext. D4 is a forged document and by using the same they have committed an offence punishable under Section 471 read with Section 34, I.P.C. In our view, the petitioners were rightly convicted for the offence under Sections 471 and 420 read with Section 34, I.P.C. and hence no interference is called for with the conviction. ,
21. Regarding the sentence we feel that we can take some lenient view in the matter. The occurrence took place in the year 1980 and 17 years have elapsed since the date of occurrence. It is stated that the 2nd petitioner is very sick and his movements are through a wheel chair. The 1st petitioner has committed the offence when he was a student and now he has a family of his own with wife and children. On the circumstances of this case, we feel that each of the petitioners can be sentenced to suffer rigorous imprisonment for a period of 3 months each for the offences under Sections 47 land 420 read with Section 34, I.P.C. with a direction that the sentences shall run concurrently and accordingly we order.
22. On the discussion made above we hold that there are no merits in this revision petition and the same deserves to be dismissed and it is accordingly dismissed with the above modification in sentence.