Bombay High Court
Hemant S/O Omkarnath Thakre vs State Of Maharashtra on 3 February, 2009
Author: R.C. Chavan
Bench: R.C. Chavan
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Appeal No.64 of 2007,
Criminal Appeal No.66 of 2007,
Criminal Appeal No.67 of 2007,
Criminal Appeal No.72 of 2007,
And
Criminal Appeal No.89 of 2007.
Criminal Appeal No.64 of 2007
Hemant s/o Omkarnath Thakre,
Aged about 44 years,
Resident of Laxmi Nagar,
New Water Tank,
Plot No.272-A,
Occupation - Service,
Vice Principal,
Yashwantrao Chavan College of
Engineering, Nagpur. ... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi, Nagpur. ... Respondent
Criminal Appeal No.66 of 2007
Rajendra s/o Bhaiyyalal Yadav,
Aged about 29 years,
Occu.: Presently Nill,
R/o Nagpur,
Tah. And Dist. Nagpur,
Presently lodged at Central Prison,
Nagpur. ... Appellant
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2
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
Nagpur. ... Respondent
Criminal Appeal No.67 of 2007
Prabhakar s/o Gangadhar Hejib,
Aged about 73 years,
Occu.: Retired,
R/o 160, Bajiprabhu Nagar,
Nagpur. ... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
Police Station, Sitabuldi, Nagpur. ... Respondent
Criminal Appeal No.72 of 2007
Shyamrao s/o Kisanrao Kalamkar,
Aged about 60 years,
Occu.: Retired,
R/o Misal Layout,
Near Dhamm Kuti Vihar,
Jaripatka, Nagpur,
Presently in Jail. ... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
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3
Police Station Sitabuldi, Nagpur. ... Respondent
Criminal Appeal No.89 of 2007
Madhukar s/o Wamanrao Smarth,
Aged about 72 years,
Occu.: Presently Nil,
R/o Pratap Nagar, Nagpur,
Presently lodged at Central Prison,
Nagpur. ... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi,
Nagpur. ... Respondent
Shri S.P. Dharmadhikari, Senior Advocate for Appellant in Criminal Appeal
No.64 of 2007.
Ms Sangeeta Gaikee, Advocate for Appellants in Criminal Appeal No.66 of
2007 and Criminal Appeal No.89 of 2007.
Shri S.S. Voditel, Advocate for Appellant in Criminal Appeal No.67 of 2007.
Shri S.P. Gadling, Advocate for Appellant in Criminal Appeal No.72 of 2007.
Shri S.S. Doifode, Additional Public Prosecutor for Respondent/State.
CORAM : R.C. Chavan, J.
Date of Reserving the Judgment : 23-1-2009.
Date of Pronouncing the judgment : -2-2009 ::: Downloaded on - 09/06/2013 14:18:41 ::: 4 Judgment : 1. 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.380 of 2002.
2. 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, whereupon Crime No.194 of 1999 was registered on 24-3-1999 on the complaint of Shri Prakash Mistry. Two other crimes were also reported. In course of investigation of these crimes, some more matters surfaced. On 21-6-1999, on a report by Shri Prakash Mistry, Crime No.346 of 1999 was registered against some students of the University. Eventually, in Crime No.348 of 1999, Shri Prakash Mistry was himself arrested by the police. Investigation into the crimes was conducted by PI Sayyad ::: Downloaded on - 09/06/2013 14:18:41 ::: 5 and after him by PSI Anil Lokhande. Originally one chargesheet was filed bearing Regular Criminal Case No.387 of 1999 and after separate trials were ordered, separate supplementary chargesheets for various offences came to be filed against various offenders.
3. Facts, which led to prosecution and conviction of the appellants are as under :
Appellant Rajendra Yadav in Criminal Appeal No.66 of 2007, who was accused No.1 before the Trial Court, was a student, who had appeared at Part I of BE Examination in Winter 1998. He failed in some of the subjects at the said examination.
The Nagpur University permitted revaluation of answer books in terms of Ordinance No.159 at the instance of such failed candidates. Therefore, accused No.1 Rajendra Yadav applied for revaluation of his paper of Physics, among others, by paying requisite fees.
4. 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 appointing ::: Downloaded on - 09/06/2013 14:18:41 ::: 6 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.
5. 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, and PW 6 Gangaram Meshram, the Assistant Registrar (Revaluation) of the University. According to them, 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 :
::: Downloaded on - 09/06/2013 14:18:41 ::: 7 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 ig 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.
::: Downloaded on - 09/06/2013 14:18:41 ::: 86. 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 ::: Downloaded on - 09/06/2013 14:18:41 ::: 9 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 refered 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.
7. 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.
8. 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 ::: Downloaded on - 09/06/2013 14:18:41 ::: 10 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.
9. 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 ::: Downloaded on - 09/06/2013 14:18:41 ::: 11 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.
10. Accused No.2 Madhukar Smarth and accused No.3 Prabhakar Hejib were the pairs of scrutineers, who were entrusted with the task of entering marks of accused No.1 Rajendra Yadav in the RTR as well as the FTR. Accused No.4 Hemant Thakre was a Professor in Yashwantrao Chavan College of Engineering and Dean of the Engineering Faculty.
11. In this case, Rajendra Yadav, accused No.1, had initially secured 25 marks out of 80 in the subject of Physics. He applied for revaluation. Examiner-I for the subject of Physics had assigned him 21 marks and Examiner-II had assigned 20 marks, thus ::: Downloaded on - 09/06/2013 14:18:41 ::: 12 average of marks came to 21. However, while noting the marks in the RTR, the marks assigned by Ist and IInd Examiners were entered by accused Madhukar Smarth in the RTR as 29 each, the average was shown as 29, and the change was shown as 5%.. In the FTR, the marks in theory were changed to 29, practical marks of 14 were added, and thus he was shown to have secured 43 marks, and got an exemption.
12. As far as change of marks in other subjects, there appears to be no grievance.
13. It is the case of the prosecution that accused No.1 Rajendra Yadav approached accused Nos.2 to 5 in order to get his marks changed and accused Nos.2 to 5 changed the marks in order to favour accused No.1, either actively indulging in making such changes or conniving at such changes or contriving to bring about changes by abetment, by engaging in conspiracy. It was further alleged that accused No.1 Rajendra Yadav used the said falsely prepared mark-list for getting admission to higher class, i.e. BE IInd Year. It was, therefore, alleged that accused No.1 had ::: Downloaded on - 09/06/2013 14:18:41 ::: 13 committed offence punishable under Section 420 of the Penal Code; accused Nos.2 to 5 had committed offences punishable under Sections 468 and 471 read with Section 34 of the Penal Code, and all the accused persons had committed offences punishable under Sections 420, 468 and 471 read with Section 109 of the Penal Code.
14. In course of investigation, the Investigating Officer secured the necessary record from the University, recorded statements of witnesses, had the disputed and admitted handwriting sent to the Examiner of Questioned Documents, State CID, Pune, and after getting an opinion from the Experts, and finding that the accused persons were involved in the aforementioned offences, chargesheeted them.
15. The learned 2nd Additional Chief Judicial Magistrate, Nagpur, charged all the appellants of offences punishable under Sections 420, 468 and 471 read with Sections 109 and 34 of the Penal Code and Section 409 read with Section 34 of the Penal Code. They pleaded not guilty to the said charge and hence were ::: Downloaded on - 09/06/2013 14:18:41 ::: 14 put on trial, at which the prosecution examined in all 11 witnesses in its attempt to bring home the guilt of the accused. They are :
PW 1 Narayan Ghatole, who was serving as Senior Clerk in the Revaluation Section, PW 2 Prof. Shaligram Anusaya, Revaluator 1, PW 3 Prof Chanabasvaiah, Revaluator 2, PW 4 Ravindra Kamble, Assistant Superintendent in Priyadarshni College of Engineering, where the accused was studying, PW 5 Kalidas, serving as Peon in the Revaluation Section, PW 6 Gangaram Meshram, Assistant Registrar (Revaluation) since 1999, PW 7 Bhalchandra Biradar and PW 8 Vishwas Ranjangaonkar, Examiners of Questioned Documents, State CID, PW 9 Adv. Dhananjay Dhondarkar, Panch on recovery and seizure, PW 10 Shri Jageshwar Saharia, Acting Vice Chancellor, and PW 11 Investigating Officer PSI Anil Lokhande.
16. After considering the evidence tendered before him, the learned 2nd Additional Chief Judicial Magistrate, Nagpur, held that the charges against all the accused were proved. He also convicted the accused of offence punishable under Section 120-B ::: Downloaded on - 09/06/2013 14:18:41 ::: 15 of the Penal Code. The conviction and sentence recorded by the learned Magistrate are as under :
(a) For offence punishable under Section 420 read with Section 34, accused No.1 Rajendra Yadao, accused No.2 Madhukar Smarth and accused No.3 Prabhakar Hejib were sentenced to rigorous imprisonment for four years and fine of Rs.2,000/- each, or in default RI for two months.
(b) For offence punishable under Section 420 read with Sections 109 and 34 of the Penal Code, accused No.4 Hemant Thakre and accused No.5 Shyamrao Kalamkar were sentenced to rigorous imprisonment for four years and fine of Rs.2,000/- each, or in default RI for two months.
(c) For offence punishable under Section 468 read ::: Downloaded on - 09/06/2013 14:18:41 ::: 16 with Sections 109 and 34 of the Penal Code, accused No.1 Rajendra Yadao, accused No.2 Madhukar Smarth, accused No.4 Hemant Thakre and accused No.5 Shyamrao Kalamkar were sentenced to rigorous imprisonment for three years and fine of Rs.15,000/-each , or in default RI for one month.
(d) For offence punishable under Section 468 read with Section 34, accused No.3 Prabhakar Hejib was sentenced to rigorous imprisonment for three years and fine of Rs.15,000/-, or in default RI for one month.
(e) For offence punishable under Section 471 read with Sections 109 and 34 of the Penal Code, accused No.1 Rajendra Yadao, accused No.2 Madhukar Smarth, accused No.4 Hemant Thakre ::: Downloaded on - 09/06/2013 14:18:41 ::: 17 and accused No.5 Shamrao Kalamkar were sentenced to rigorous imprisonment for one year and fine of Rs.5,000/- each, or in default, RI for one month.
(f) For offence punishable under Section 471 read with Section 34 of the Penal Code, accused No.3 Prabhakar Hejib was sentenced to rigorous imprisonment for one year and fine of Rs.5,000/-, or in default, RI for one month.
(g) For offence punishable under Section 120-B of the Penal Code, accused No.1 Rajendra Yadav, accused No.2 Madhukar Smarth, accused No.3 Prabhakar Hejib, accused No.4 Hemant Thakre and accused No.5 Shyamrao Kalamkar were sentenced to rigorous imprisonment for six months and fine of Rs.2,000/-, or in default, RI for fifteen days.::: Downloaded on - 09/06/2013 14:18:41 ::: 18
(h) For offence punishable under Section 409 read with Section 34 of the Penal Code, accused No.2 Madhukar Smarth, accused No.3 Prabhakar Hejib, accused No.4 Hemant Thakre and accused No.5 Shyamrao Kalamkar were sentenced to rigorous imprisonment for four years and fine of Rs.2,000/-
17. The learned Magistrate directed that all the sentences imposed upon the appellants were to run consecutively and not concurrently. Aggrieved thereby, the appellants have preferred these appeals.
18. I have heard the learned counsel appearing for the respective appellants and the learned APP for the State. With the help of all the learned counsel, I have gone through the evidence tendered.
19. The learned counsel for original accused No.3 Prabhakar Hejib submitted that the Investigating Officer ::: Downloaded on - 09/06/2013 14:18:41 ::: 19 committed gross error in taking cognizance of the matter without there being a report from the competent authority. He submitted that the Investigating Officer had no business to suo motu take cognizance of an alleged offence, which had not been referred to him by the authorities under the Maharashtra Universities Act.
The FIR in this case is at Exhibit 83. It is filed by Dr. Prakash Mistry, who was the Controller of Examinations.
ig This was in respect of mark-lists/degrees of four students, namely Philip Verghese, Bharadwaj Girdhar, Md. Ghouse Irshad and D. Sameer Kumar, which were found to be forged. On this report, Crime No.346 of 1999 was registered at Police Station Sitabuldi. The learned counsel for the appellant pointed out that this report does not make any reference to appellant Rajendra Yadav or any malpractice in respect of result of said Rajendra Yadav.
20. The learned counsel submitted that Section 18 of the Maharashtra Universities Act defines the duties of Controller of Examinations. Clause (e) of sub-section (3) of the said Section empowers the Controller of Examinations and vests him with the ::: Downloaded on - 09/06/2013 14:18:41 ::: 20 responsibility to postpone or cancel examinations, in part or in whole, in the event of malpractices, or, if the circumstances so warrant, and take disciplinary action or initiate any civil or criminal proceedings against any person or a group of persons, or a college, or an institution, alleged to have committed malpractices. Section 32 of the Maharashtra Universities Act enumerates powers and duties of the Board of Examinations in respect of the University examinations. In view of clause 5(b) of the said Section, the Controller of Examinations acts as Secretary of the Board. Clause 6(a) of the said Section empowers the Board of Examinations to constitute a committee of not more than five persons to investigate into and to take disciplinary action for, malpractices or lapses on the part of candidates, paper-setters, examiners, moderators, referees, teachers or any other persons connected with the conduct of examinations including the pre-examination and post-examination stages. Clause (b) of sub-
section (6) requires such committee to submit its report and recommendations to the Board of Examinations, which is expected ::: Downloaded on - 09/06/2013 14:18:41 ::: 21 to take disciplinary action in the matter as it deems fit.
21. The learned counsel submitted that if any malpractice in respect of examination at which Rajendra Yadav appeared was noticed, it ought to have been investigated by a committee constituted under Section 32(6)(a) and report of such committee ought to have been considered by the Board of Examinations under Section 32(6)(b).
ig Only thereafter, the Controller of Examinations, as Secretary of the Board, would have been entitled to report the matter to police. He submitted that these provisions of the Maharashtra Universities Act override the provisions pertaining to taking cognizance, which are generally applicable to crimes. For this purpose, he relied on a number of decisions, namely, Ratan Lal Adukia v. Union of India, reported at (1989) 3 SCC 537, State of M.P. v. Kedia Leather & Liquor Ltd. and others, reported at (2003) 7 SCC 389, Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupeshkumar Sheth and others, reported at (1984) 4 SCC 27, Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, ::: Downloaded on - 09/06/2013 14:18:41 ::: 22 reported at (1988) 2 SCC 271, Jasbir Singh v. Vipin Kumar Jaggi and others, reported at (2001) 8 SCC 289, Gaziabad Zila Sahkari Bank Ltd. v. Additional Labour Commissioner and others, reported at (2007) 11 SCC 756, U.P. State Electricity Board v. Banaras Electric Light and Power Co. Ltd., reported at (2001) 7 SCC 117, Kunwar Pal Singh (Dead) by LRs. v. State of U.P. and others, reported at (2007) 5 SCC 85, and Home Secretary, U.T. of Chandigarh and another v. Darshjit Singh Grewal and others, reported at (1993) 4 SCC 25.
22. The refrain of the learned counsel for accused No.3 is that a special procedure is prescribed by the Maharashtra Universities Act, which is irreconcilable with the procedure for taking cognizance by police and, therefore, Section 18(3)(e) of the Maharashtra Universities Act completely repeals the provisions of Section 190 of the Code of Criminal Procedure. According to him, in view of the decisions referred to above, since there is a direct conflict between the two provisions and since it is clear that the Legislature intended to lay down an exhaustive code for ::: Downloaded on - 09/06/2013 14:18:41 ::: 23 malpractices at University examinations, and since the two laws occupy the same field, there is an implied repeal of the provisions of Section 190 of the Code of Criminal Procedure by the provisions of Section 18(3)(e) of the Maharashtra Universities Act.
He further submitted that when a special enactment provides a special procedure, it would prevail over the general law contained in the Code of Criminal Procedure.
ig Therefore, the learned Magistrate could not have taken cognizance on a report by police in respect of alleged fraudulent preparation of documents, and that cognizance of such offence could have been taken only upon a complaint to Magistrate by authorized officer, namely Controller of Examinations. For this purpose, he relied on judgment in State of Kerala v. V.P. Enadeen, reported at AIR 1971 Kerala 193.
23. In Union of India and others v. L.D. Balam Singh, reported at (2002) 9 SCC 73, relied on by Advocate Shri Voditel, it was held in the context of a court marshal that if the court marshal was in relation to an offence punishable under the NDPS Act, safeguards contained in the said Act could not be diluted.
::: Downloaded on - 09/06/2013 14:18:41 ::: 24The learned counsel, therefore, submitted that safeguards in the Maharashtra Universities Act prescribing an enquiry before criminal action could be initiated would have to be applied to the present case.
24. In State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, reported at 2007 ALL MR (Cri) 555, the Supreme Court held that the requirement of an authorization by a Superintendent of Police in favour of an officer for conducting investigation into an offence under Section 17(1)(e) of the Prevention of Corruption Act was of a mandatory character and the burden was on the prosecution to prove that the investigation was carried on by the proper authority.
25. The learned APP contested this proposition. He submitted first, that there is no question of the provisions of Section 18(3)(e) of the Maharashtra Universities Act operating in the same field or occupying the same field as Section 190 of the Code of Criminal Procedure. Section 190 of the Code of Criminal Procedure pertains to taking cognizance by Criminal Courts. It ::: Downloaded on - 09/06/2013 14:18:41 ::: 25 does not lay down the procedure to be followed by a complainant in the position of Controller of Examinations before a complaint is filed. He further submitted that Section 18(3)(e) of the Maharashtra Universities Act empowers the Controller of Examinations to initiate civil or criminal proceedings. This does not imply that criminal proceedings must be initiated only by a complaint to Magistrate and not by making a report to police.
26. I have carefully considered the rival contentions. It may be seen that Section 18(3)(e) of the Maharashtra Universities Act read with Section 32 of the said Act, which provide for an enquiry by a Committee and a report to the Board of Examinations, do not necessarily exclude a report by the University authorities to the police or investigation by the police into such complaints. It may be seen that Section 18(3)(e) does not restrict the powers of a Criminal Court to take cognizance upon a police report by prescribing that cognizance shall not be taken unless the steps contemplated by the Maharashtra Universities Act are first taken.
Therefore, since the relevant provisions of the Maharashtra ::: Downloaded on - 09/06/2013 14:18:41 ::: 26 Universities Act and those under the Code of Criminal Procedure occupy different fields and control different aspects, there is no conflict and, therefore, no implied repeal. Consequently, there is no warrant for holding that the Controller of Examinations was not entitled to approach the police or police was not entitled to investigate or to file a report or that a Magistrate was not entitled to take cognizance on such a report.
ig The contention of the learned counsel for the appellants that when a special law prescribes a special procedure, it eclipses general provisions, is unexceptionable, but it has to be noted that the Maharashtra Universities Act does not prescribe any special procedure for carrying out investigation into the complaints about offences concerning the University examinations or for enquiries or trials for offences arising therefrom. Section 18(3)(e) of the Act on which much emphasis has been laid, is only an enabling provision, which would enable the Controller of Examinations to initiate criminal proceedings. Therefore, since there is no special procedure prescribed for investigation or trial of offences relating ::: Downloaded on - 09/06/2013 14:18:42 ::: 27 to examinations and since the procedure prescribed is only in relation to conducting an internal enquiry for the purpose of enabling the University authorities to decide appropriate course of action, it cannot be said that the report could not have been made by the Controller of Examinations.
27. Reliance on judgment of the Supreme Court in P. Sirajuddin etc v. The State of Madras etc, reported at AIR 1971 SC 520, regarding necessity of a preliminary enquiry before lodging FIR against a public servant charged of serious misconduct, is misplaced. In that case, the Court considered the necessity of a preliminary enquiry into the allegations against a person holding a top position in the department by a responsible officer, since lodging of a report on baseless allegations would do incalculable harm not only to the officer but to the department he belonged to.
There can be no doubt that when a department decides to lodge a report, it must first satisfy itself about existence of ingredients of crime, which is sought to be reported. In this case, it has to be seen that Dr. Prabhakar Mistry did not file a report particularly ::: Downloaded on - 09/06/2013 14:18:42 ::: 28 against appellant Prabhakar Hejib. As already recounted, his report was in respect of four students and University employees.
The names of appellants were not even mentioned in the report.
The complicity of the appellants came to light when the Investigating Officer and the University authorities started examining the University record once a fraud had come to light.
Since the learned counsel for the appellants could not show any rule of law, either in the form of enactment or a judgment holding the field, for the proposition that a police officer is obliged to shut his eyes and fold his arms even after coming to know that a cognizable offence has taken place till somebody wakes him up by filing a report, the action by the Investigating Officer in investigating into the complicity of the present appellants cannot be faulted. However, he should have followed the procedure of registering a separate crime, investigating it independently and filing a separate final report in respect of each malpractice. In view of this, the objections of the appellants on the ground of first, lack of competence in Dr. Prakash Mistry to make a report and ::: Downloaded on - 09/06/2013 14:18:42 ::: 29 secondly, absence of names of the appellants in the said FIR, cannot be upheld.
28. The learned counsel for accused No.3 next submitted that accused No.3 Prabhakar Hejib was appointed as Scrutineer by the University. He was not directly an employee of the University.
Yet, since he was appointed as Scrutineer, he could not have been prosecuted without the sanction from the authority competent to appoint him. He submitted that PW 10 Shri Jageshwar Saharia, who was given an additional charge of the post of Vice Chancellor of Nagpur University at the relevant time, had stated that permission had been asked from him to prosecute, among others, Prabhakar Hejib. He stated that he had not granted permission in respect of Prabhakar Hejib and others, who were not University employees and had granted permission in respect of Dr. Prakash Mistry, Yadav Kohchade, Hemant Thakre, Shamrao Kalamkar, and Dinkar Ingle, who were the employees of the University. He proved a communication to this effect by the Registrar of the University, Dr. S.S. Dara, who is no more. The learned counsel for ::: Downloaded on - 09/06/2013 14:18:42 ::: 30 accused No.3 submitted that if the Vice Chancellor was not an appointing authority in respect of Prabhakar Hejib, he was also not an appointing authority in respect of Hemant Thakre, who was the elected Dean of Engineering Faculty and not appointed by the Vice-Chancellor. On behalf of appellant Hemant Thakre too, Shri Saharia had been cross-examined at length on the question of his authority to sanction prosecution against Hemant Thakre.
29. The learned APP submitted that Section 10 of the Maharashtra Universities Act enumerates the officers of the University and Deans of Faculties are included in this enumeration and such is not the case of the Scrutineers. It is difficult to contemplate that because persons performing duties in the University in connection with the examination are actually employees of the affiliated Colleges, they cease to be public servants in respect of duties which they perform in the University.
However, this question need not detain the Court since the conduct attributed to the scrutineers in this case is not one, which they could be said to have performed in course of their duty, but ::: Downloaded on - 09/06/2013 14:18:42 ::: 31 one which amounts to subversion and a criminal activity.
Therefore, the question as to whether the sanction from the Vice Chancellor was necessary or whether it was at all given or given after appropriate application of mind, are not relevant.
30. Coming to the evidence tendered, PW 4 Ravindra Kamble, who was serving as Assistant Superintendent in Priyadarshni College of Engineering, stated that accused Rajendra Yadav was a student of the College where he was serving.
Rajendra Yadav had appeared for BE Part I Examination in Summer 1996 and again in Winter 1996. He failed in most of the subjects. In Winter 1997, he could pass only in one theory paper.
He again appeared in Summer 1998 and Winter 1998. He applied for revaluation of four papers of Winter 1998 Examination, which includes Physics. He cleared that and some other papers as a result of revaluation. He applied for admission to the BE IInd Year as per copies of admission forms at Exhibits 35 and 36 on the basis of his result of revaluation of, among others, subject of Physics.
::: Downloaded on - 09/06/2013 14:18:42 ::: 3231. In his statement under Section 313 of the Code of Criminal Procedure, Rajendra Yadav had curiously taken a stand that he does not know about the revaluation process. He thus seems to suggest that he had nothing to do with revaluation and he applied for admission on the basis of mark-list, which was issued by the University. The question, however, would remain that if he had not applied for revaluation, there would be no occasion for him to apply on the basis of result of revaluation.
Otherwise he was not eligible for admission.
32. The learned counsel for appellant Rajendra Yadav submitted that even if it is presumed that accused Rajendra Yadav did apply for revaluation and was declared to have cleared two subjects at revaluation, it does not follow that he had indulged in any malpractice.
33. PW 6 Shri Gangaram Meshram was the Assistant Registrar, Revaluation, after the scandal came to light. Various documents were made available by him to the investigating machinery. He had stated in his deposition that the revaluation ::: Downloaded on - 09/06/2013 14:18:42 ::: 33 sheets by Revaluators 1 and 2 used to be sent along with revaluation tabulation register to the Scrutineers. He identified them at Exhibits 15 and 16 and the answer book of accused Rajendra Yadav, Article 'C' at Exhibit 53. Exhibit 54 is the copy of counter-foil of the FTR.
34. Revaluator 1 Prof. Anusaya was examined as PW 2. She stated having received the answer paper of BE Part I (Physics) from the Nagpur University. After assessment of the paper, she allotted 21 marks against Code No.5502. She proved R1 sheet to be in her handwriting, which is at Exhibit 15. In cross-
examination on behalf of accused No.1, she stated that on the basis of the code number, she identified the answer sheet, as Article 'C'.
35. PW 3 Prof. Channabasvaiah stated that he had examined Physics paper of BE Part I Examination and had filled in R2 sheet Exhibit 16 on 16-2-1999 and that it bears his signature.
Against Code No.5502, he claims to have given 20 marks. He stated that he had received the answer sheet like Article 'C' for the ::: Downloaded on - 09/06/2013 14:18:42 ::: 34 purpose of revaluation and that on the said answer sheet, Code No.5502 is printed. He admitted that his specimen signatures were not obtained by the Nagpur University.
36. PW 1 Narayan Ghatole had also stated about the change in marks. He identified R1 and R2 sheets at Exhibit 15 and 16 and proved copies of the RTR and FTR at Exhibits 17 and 18. He stated that the student had initially scored 25 marks in Physics theory. The Revaluators had awarded 21 and 20 marks respectively. They were wrongly entered as 29 and 29 with average drawn as 29. He stated that these entries against the subject of Physics were in the handwriting of accused No.2 Madhukar Smarth. Change and percentage of increase or decrease were shown to be in the handwriting of accused No.2 Madhukar Smarth. PW 5 Kalidas Dale, a Peon working in Revaluation Section, stated that in the FTR, the entry against the name of Rajendra Yadav are attested by accused No.3 Prabhakar Hejib. He, however, could not identify the handwriting of the Scrutineers.
::: Downloaded on - 09/06/2013 14:18:42 ::: 3537. PW 1 Narayan Ghatole had stated that since he was working in Revaluation Section, he had the occasion to see their handwritings and signatures frequently and, therefore, could identify the signatures and handwritings of all the six Scrutineers.
Thus he identified the handwritings of accused No.2 Madhukar Smarth and accused No.3 Prabhakar Hejib on account of his having seen their handwritings.
38. PW 11 PSI Lokhande had conducted investigation in the matter. He stated in para 5 of his deposition about change of marks in the case of Rajendra Yadav. In paras 9 to 14 of this deposition, he stated that he had caused specimen handwriting of Dean Hemant Thakre, Scrutineers Madhukar Smarth and Prabhakar Hejib to be obtained and sent the samples along with the questioned writing to the Examiners of Questioned Documents. He had also caused handwriting of other persons involved in the scandal to be collected and sent to the Examiner of Questioned Documents. But he admitted in para 30 of his cross-
examination that the questioned writings pertaining to this case ::: Downloaded on - 09/06/2013 14:18:42 ::: 36 were not sent to the Experts.
39. PW 8 Vishwas Ranjangaonkar is the State Examiner of Questioned Documents, who stated about examination of documents referred to him. The evidence of the witness may be more useful for proving handwriting of accused Hemant Thakre.
But as discussion to follow would show, since Thakre admitted his authorship of chits, the evidence need not be discussed at length.
The length to which the cross-examining counsel proceeded could be gauged by the fact that the witness was also asked to state whether he had a certificate with hm to show that the lenses which he had used for magnifying the document were approved by the Government Bureau of Standard!
40. PW 7 Bhalchandra Biradar is the other Examiner of Questioned Documents examined to prove handwriting of accused No.2 Madhukar Smarth. The fact that he was allegedly trapped and a case under the Prevention of Corruption Act was filed against him in an unrelated matter is not relevant. His opinion would have to be tested for its worth on the basis of what he ::: Downloaded on - 09/06/2013 14:18:42 ::: 37 stated before the Trial Magistrate. He was similarly cross-
examined at length by the learned counsel for accused Prabhakar Hejib (and not accused Madhukar Smarth). But his evidence too is not of help, since Investigating Officer PW 11 PSI Lokhande had admitted that questioned documents in this case were not sent to the Expert. In spite of this admission of the Investigating Officer, the learned Trial Magistrate went on to make contrary observations in para 8 of the judgment. In view of this, it may not be necessary to discuss cases pertaining to appreciation of evidence of Handwriting Experts.
41. The learned APP pointed out that PW 1 Narayan Ghatole, who was conversant with the handwriting of Scrutineers had duly identified the said writing and there is no reason to disbelieve the word of PW 1 Narayan Ghatole. PW 5 Kalidas has identified signature of accused Madhukar Smarth. The learned APP also pointed out that the evidence that Scrutineers in this case were accused No.2 Madhukar Smarth and accused No.3 Prabhakar Hejib cannot be discarded as unbelievable. He pointed ::: Downloaded on - 09/06/2013 14:18:42 ::: 38 out that the evidence of PW 1 Narayan Ghatole also shows as to how the tabulation registers and R1 and R2 sheets used to be handled during the course of process of noting of result of revaluation. Therefore, according to him, there was no scope for concluding that the changes in the marks of accused No.1 Rajendra Yadav were made by anyone else, but accused No.2 Madhukar Smarth. He submitted that since one of the Scrutineers used to dictate the marks and others used to write, both accused No.2 Madhukar Smarth as also accused No.3 Prabhakar Hejib are involved in recording incorrect marks against the name of accused No.1 Rajendra Yadav.
42. In Mobarik Ali Ahmed v. State of Bombay, reported at AIR 1957 S.C. 857, on which reliance was placed by the learned Additional Public Prosecutor, the Court was considering the question of proof of authorship of the document in relation to Section 45 of the Evidence Act and the Court held that authorship may be proved by reference to internal evidence furnished by the contents of the document as well. It is however, not clear as to ::: Downloaded on - 09/06/2013 14:18:42 ::: 39 how this would help the prosecution in the present case.
43. The learned counsel for the appellants submitted that PW 1 Narayan Ghatole, on whose evidence prosecution relies for proving handwriting of Scrutineers had resiled from such a stand when he was examined as a witness in Criminal Case No.356 of 2002, arising out of the same scandal. He sought to produce for my perusal a certified copy of deposition of Narayan Ghatole examined as PW 1 Regular Criminal Case No.356 of 2002 at Exhibit 20. Narayan did state that he had no occasion to see the writing of any Scrutineer. He was declared hostile and cross-
examined by the Special Public Prosecutor in an attempt to control the damage. The learned counsel submitted that thereafter, without allowing the defence to cross-examine the witness, the Special Public Prosecutor withdrew the prosecution under Section 321 of the Code of Criminal Procedure and the learned Magistrate allowed the withdrawal and acquitted the accused in the said case. Therefore, according to him, there is no evidence to show that changes in marks were indeed made by accused Madhukar ::: Downloaded on - 09/06/2013 14:18:42 ::: 40 Smarth and consequently there is no reason to rope in accused Prabhakar Hejib as well.
44. The learned APP countered by submitting that volte face by PW 1 Narayan Ghatole in a subsequent case may be for a variety of reasons. This does not denude his deposition in the present case of its evidentiary value. Narayan Ghatole may have lied in Criminal Case No.356 of 2002 and that need not result in washing away the evidence in this case. He further submitted that the question whether change in marks of accused Rajendra Yadav was in the handwriting of accused Madhukar or not ought to be decided by referring to all the relevant factors. He pointed out that the fact that accused Madhukar was the Scrutineer (along with accused Prabhakar Hejib) assigned the work of filling up marks scored upon revaluation by Rajendra Yadav is duly established by the evidence of PW 1 Narayan Ghatole. The RTR itself contains numerous entries in the handwriting, with the initials of accused Madhukar Smarth, which would afford an opportunity for the Court itself to compare the writing, which the ::: Downloaded on - 09/06/2013 14:18:42 ::: 41 learned Trial Magistrate had in fact done.
45. Though the Society should not be allowed to gather an impression that the conclusions drawn in a Court of Law have to be "against the common reason of mankind", or "that springs of decision making in Judges are different from those of the common man", in this case there is absolutely no explanation as to why questioned handwriting of accused Madhukar Smarth was not referred to the Expert. It is not clear as to what prevented the prosecution to bring some better evidence to prove the writing of accused Madhukar than the word of PW 1 Narayan Ghatole and a Peon PW 5 Kalidas, who stated that he could identify only signatures.
46. Relying on the observations of the Supreme Court in Dhanaj Singh v. State of Punjab, reported at (2004) 3 SCC 654, the learned APP submitted that these lapses need not help the offenders. The Supreme Court had observed in that case that if primacy is given such such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, ::: Downloaded on - 09/06/2013 14:18:42 ::: 42 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.
47. PW 1 Narayan Ghatole's word would have undoubtedly been conclusive had he stated that he saw accused Madhukar make the offending entry. He does not even state that he actually had seen Madhukar Smarth write something. His evidence is inferential, based on his observations and comparison of offending writing with what he perceived to be Madhukar Smarth's natural writing. This may create a probability, which could have been turned into certainty only by corroboration from a disinterested Expert's word. While under Section 73 of the Evidence Act, the Court too can compare handwriting, and the learned Trial Magistrate claims to have so done, such comparison too would require some writing which is either admitted or proved to be the ::: Downloaded on - 09/06/2013 14:18:42 ::: 43 writing of accused Madhukar Smarth. Since the learned Magistrate chose to phrase his questions under Section 313 of the Code of Criminal Procedure in a long winded and bombastic fashion, the chance of ascertaining that some writing to be used for comparison was admitted writing of Madhukar Smarth was lost. And, there is no proved writing since PW 1 Narayan Ghatole does not claim to have seen Madhukar Smarth write a line which he could point out in his deposition. As to specimen writing collected during the investigation, suffice it to say that para 8 of the judgment of the Trial Court, where this aspect is discussed, there is a reference to specimen writing of Prabhakar Hejib, but not of Madhukar Smarth, though a conclusion is drawn. It cannot, therefore, be held as proved that the entry in question whereby inflated marks of accused Rajendra Yadav were entered, was in the handwriting of Madhukar Smarth..
48. The learned counsel for the appellants further submitted that the conviction could not have been based only upon proof of writing of marks, since there was nothing to show that the ::: Downloaded on - 09/06/2013 14:18:42 ::: 44 Scrutineers had in fact been provided with R1 and R2 sheets, Exhibits 15 and 16. Since the change itself is not proved to have been in the handwriting of accused Nos.2 or 3, it is not necessary to go into this question.
49. The learned counsel for appellant Rajendra Yadav submitted that there is no evidence that Rajendra Yadav had ever approached other accused persons or that other accused persons changed the marks to the advantage of Rajendra Yadav at the instance of Rajendra Yadav. He submitted that it may be possible that the change was unintentional, that is, without any motivation to make such a change, or could also have been at the instance of someone else and not necessarily Rajendra Yadav. Therefore, according to the learned counsel, since the nexus is not established, it would be wrong to hold that the accused persons had engaged in any conspiracy or that Rajendra Yadav had abetted in forgery or falsification of record by Scrutineers or that Rajendra Yadav had indulged in cheating by using as genuine, a mark-list, which was false.
::: Downloaded on - 09/06/2013 14:18:42 ::: 4550. The learned APP submitted that it would be too far fetched to imagine that the Scrutineers would increase the marks of Rajendra Yadav for no apparent reason, or without being approached by Rajendra Yadav or merely because he took a fancy for the name. However, since in this case the entry of marks in RTR is not proved to have been in the handwriting of Scrutineers, by omitting to send the questioned writing to Expert for opinion, and thus creating a hiatus between favourable entry and the favoured student.
51. The learned APP submitted that in course of investigation, accused No.5 Shamrao Kalamkar had been arrested.
He was interrogated by Investigating Officer PI Sayyad in presence of PW 9 Dhananjay Dhondarkar, who was called as panch. He stated that accused Shamrao Kalamkar stated that Dr. Prakash Mistry and accused No.4 Hemant Thakre and some others used to send chits to him to have marks increased and that he had preserved those chits. He stated that the chits were kept at his house and that he would hand over the chits to the police. A ::: Downloaded on - 09/06/2013 14:18:42 ::: 46 memorandum was accordingly made in presence of panch Dhananjay Dhondarkar as well as other panch Sudhir Shivdekar.
He proved the copy of memorandum from original, which was in record of Regular Criminal Case No.25 of 2001. He stated that then all of them procedded to the house of Kalamkar in a jeep.
Kalamkar's house was situated near Bouddha Vihar, Dhammapuri, Misal Layout, Jaripatka, Nagpur, which was shown by Kalamkar himself. Kalamkar called them inside the house and from the steel cupboard, took out some some chits. After sorting out the chits from the almirah, he handed over the chits to PI Sayyad, which included chits written by accused Hemant Thakre. There was also an envelope, which had been taken out. A seizure panchanama was drawn up and the chits were seized. Copy of the panchanama was proved by the witness at Exhibit 92. The chits and envelopes seized were proved at Exhibits 93, 94 and 95. They had been duly attested by the witness as also the officer effecting the seizure.
Three mark-lists were also seized from the almirah on being produced by Kalamkar, which are at Exhibits 96, 97 and 98.
::: Downloaded on - 09/06/2013 14:18:42 ::: 4752. The witness denied the suggestion that he had signed all the documents at the instance of DCP Sanjay Kumar in order to please the DCP. He also denied that the other Panch Sudhir Shivdekar was his client, but admitted that Sudhir Shivdekar became his client afterwards. The witness stated in cross-
examination that about fifteen minutes time was taken to record the memorandum at Exhibit 91 and that the recording was over at 8.15 a.m. He stated that he had received a telephonic message from the Police Station at about 7 to 7.30 a.m. and had reached the Police Station within five minutes from his residence on Central Avenue, which is about two and three-fourth kms from Sitabuldi Police Station. He stated that the seizure panchanama was completed between 8.30 a.m. and 11 a.m. About 25 minutes were taken for reaching the house of Shamrao Kalamkar and it took about 20 to 25 minutes for Shamrao Kalamkar to sort and hand over the chits to police. He had also stated that for writing the seizure panchanama, it took 1 to 1.45 hours. He could not tell the police as to the road by which they went to Jaripatka. He ::: Downloaded on - 09/06/2013 14:18:42 ::: 48 could not tell the area where the house of accused was situated or whether it was double storeyed or triple storeyed. He admitted that he did not make any effort to get a clarification whether the house belonged to the accused. He stated that after writing the memorandum, they boarded the jeep after fifteen minutes and then took 20 to 25 minutes to reach the house of accused Shamrao Kalamkar.
53. PW 11 PSI Anil Lokhande claimed to have been present at the time of memorandum and seizure though it was effected by PI Sayyad. The seizure panchanama makes a mention of presence of PSI Lokhande.
54. The learned counsel for the appellants submitted that the entire evidence of Dhananjay Dhondarkar is doubtful, since sequence of events and the time taken mentioned by him as also his absence of knowledge of surroundings of house of Shamrao Kalamkar cast a doubt as to whether Dhananjay Dhondarkar had actually participated in this process. It is not necessary to go into all these aspects as also the evidence of Handwriting Experts ::: Downloaded on - 09/06/2013 14:18:42 ::: 49 about the writing on the chits by accused No.4 Hemant Thakre, since accused No.4 had himself admitted having written and signed those chits. It would, therefore, be necessary to only see whether the explanation given by the accused about those aspects is plausible or not or whether it could be said that the chits were sent in order to secure an increase in marks for students who had approached accused No.4 Hemant Thakre.
55. The learned counsel for accused Hemant Thakre submitted that the Investigating Officer had admitted in his cross-
examination that Rajendra Yadav had applied for revaluation in six subjects. There was change of marks in subjects of Maths-I Maths-II, Physics, Chemistry and E/M. No discrepancy was found in R1 and R2 sheets and RTR in respect of subjects Chemistry and E/M. No case was filed in respect of subject Maths-II as R1 and R2 sheets were not found. Case is in respect of change in only Physics paper. He admitted that in the chit written by accused Hemand Thakre, subject Physics is not mentioned, against roll number of accused Rajendra Yadav and subjects Maths-I and II are ::: Downloaded on - 09/06/2013 14:18:42 ::: 50 mentioned though initially the witness stated otherwise. The learned counsel submitted that the theory of prosecution was that accused Rajendra Yadav approached accused Hemant Thakre, who, through accused Shyamrao Kalamkar influenced the Scrutineers to change marks. If that was so, the learned counsel wondered as to how Rajendra Yadav could have failed even after revaluation in Maths-I. ig Therefore, according to the learned counsel, if there is any mistake on the part of the University authorities to note down marks in Physics paper, it cannot lead to inference that it was done at the instance of accused Hemant Thare.
56. The learned counsel for all the appellants submitted that drawing too many inferences based on too many assumptions amounts to entering into the area of conjectures and surmises.
They, therefore, submitted that conclusions drawn by the learned Trial Magistrate are not permissible. In Sarwan Singh Rattan Singh v. State of Punjab, reported at AIR 1957 SC 637, the Court held that mere suspicion, however strong, cannot take the place of ::: Downloaded on - 09/06/2013 14:18:42 ::: 51 proof.
57. In Esher Singh v. State of A.P., reported at (2004) 11 SCC 585, in relation to offence under the TADA the Court was considering the ingredients of 'criminal conspiracy'. The Court observed that direct independent evidence of criminal conspiracy is jointly not available and in force have to be normal duties from the acts of the parties. The Court had referred to earlier judgment in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665]. The Court observed that privacy and secrecy are more characteristics of conspiracy and therefore, agreements have to be proved only by necessary implication.
58. In State (Delhi Admn.) v. V.C. Shukla and another, reported in 1980 Cri.L.J. 965(1), while considering the case of conspiracy, the Court held that it was well settled that in order to prove a criminal conspiracy, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence and that this clearly envisages that there must be a meeting of minds resulting in an ultimate ::: Downloaded on - 09/06/2013 14:18:42 ::: 52 decision taken by the conspirators regarding the commission of an offence. The Court observed that it was true that in most cases, it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
59. In Hari Ram v. State of H.P., reported at 1982 Cri.L.J. 294, a Division Bench of Himachal Pradesh High Court was considering conspiracy in the context of offence punishable under Section 467 of the Penal Code and reiterated that in case of conspiracy based on circumstantial evidence, the circumstances should be incapable of being reasonably explained on any other hypothesis than the guilt of the accused.
60. In State of A.P. v. I.B.S.P. Rao, reported at AIR 1970 SC 648, on which the learned APP relied, the Court was considering involvement of an accused in offence punishable under Section 120-B and 420 of the Penal Code. In that context the Court observed in relation to circumstantial evidence, in paragraph 7 of ::: Downloaded on - 09/06/2013 14:18:42 ::: 53 the judgment, as under :
"7. In regard to the question of the effect and sufficiency of circumstantial evidence for the purpose of conviction, it is now settled law that before conviction based solely on such evidence can be sustained, it must be such as to be conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence has remained unexcluded by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not far-fetched.
Further, it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the ::: Downloaded on - 09/06/2013 14:18:42 ::: 54 accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself, and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by itself is not decisive."
Facts unfolded in the case would have to be examined bearing in mind these principles.
61. Accused No.4 Hemant Thakre had admitted in response to question No.23 that in the chit, copy whereof was at Exhibit 92, roll No.7555 of Rajendra Yadav was in his handwriting. He ::: Downloaded on - 09/06/2013 14:18:42 ::: 55 submitted a written statement, which is at Exhibit 201, wherein he stated that he was the Dean of the Faculty of Engineering and Technology, when some revaluation results were declared, some students approached him to know as to why their revaluation results were not declared. Therefore, accused No.4 Hemant Thakre sent chits of roll numbers of concerned students with a request to enquire about delay in declaration of revaluation results. He denied that he had ever visited the Revaluation Section of the University at any time. He stated that he had been falsely implicated in the case.
62. The learned Senior Counsel for appellant Hemant Thakre submitted that revaluation results used to be declared in bits as and when revaluation in respect of some of the students was over. There used to be multiple notifications as and when results were ready. He pointed out that Investigating Officer Shri Lokhande had admitted in his cross-examination that the results were delayed. Therefore, according to him, there is nothing abnormal in the students approaching the Dean with a grievance ::: Downloaded on - 09/06/2013 14:18:42 ::: 56 that their results were not declared. Therefore, he sent chit Exhibit 94, which was signed, dated by him and addressed to the Assistant Registrar (Revaluation). He submitted that it would be ridiculous to conclude that a person in the position of a Dean of a Faculty desirous of indulging in clandestine increase of marks would write a chit and send it. He submitted that the chit was obviously handed over to the students concerned for being taken to the Revaluation Section. Had accused Hemant Thakre desired to secure increase in marks, he could have telephoned the officer giving the roll numbers or could have contacted the officer secretly. Therefore, according to him, sending the chits to the Assistant Registrar is consistent only with the innocence of the accused.
63. The learned Senior Counsel for appellant Hemant Thakre pointed out that the Investigating Officer had admitted that except for chits Exhibits 93 and 94 and envelope Exhibit 94, accused Hemant Thakre was not concerned with the case. The Investigating Officer had also admitted that it was the duty of the ::: Downloaded on - 09/06/2013 14:18:42 ::: 57 Board of Examinations to declare the result and the Dean was the member of the Board. He admitted that chit Exhibit 94 is not concerned with the examination of Winter 1998. In para 35 of the deposition, the Investigating Officer stated that the two chits Exhibits 93 and 94 contain roll numbers of 14 students. Out of them, cases have been filed only against seven students. The Investigating Officer volunteered that since no discrepancy was found in R1 and R2 sheets and RTR and FTR, cases were not filed against remaining seven students. He had admitted that even in respect of Rajendra Yadav, R1 and R2 sheets of Maths-I subject were available and no discrepancy was found. R1 and R2 sheets of Maths-II subject were not available. He admitted that in chit Exhibit 93, against roll No.7555, subjects of Maths-I and Maths-II are mentioned and subject Physics is not mentioned. It may be recalled that the allegation of increase in marks was in respect of subject Physics and not the subjects of Maths-I and Marhs-II.
64. The Investigating Officer admitted that except chit Exhibit 93, there was no other document on record to connect ::: Downloaded on - 09/06/2013 14:18:42 ::: 58 accused Hemant Thakre to the crime. He admitted that z accused No.5 Shamrao Kalamkar told him that in the paper of Physics, marks were increased at the instance of Hemant Thakre, Hemant Thakre has been made an accused in the case, because the Investigating Officer believed the information given by Shamrao Kalamkar as true and correct.
65. The learned Senior Counsel for appellant Hemant Thakre submitted that it may be a mistake on the part of the Investigating Officer to rely on statement of co-accused and to chargesheet a person. But he wondered as to how the learned Trial Magistrate could forget that such a statement of an accused made to a Police Officer is inadmissible and a conviction could not be based on such a statement. The learned Senior Counsel submitted that the evidence of the Investigating Officer clearly shows that he had roped in accused Hemant Thakre only on what the Investigating Officer understood to have been communicated by Shamrao Kalamkar and on no other basis.
66. Further cross-examination of the Investigating Officer in ::: Downloaded on - 09/06/2013 14:18:42 ::: 59 para 37 is also interesting. According to the Investigating Officer, in the chit Exhibit 93, where five roll numbers are mentioned and out of which cases have been filed against two students. There were some figures in the chit, which, according to the Investigating Officer, showed as to how many marks were required to be given to the students so that they could pass. Upon cross-examination, however, he admitted that he could detect nothing about figure '29' in respect of subject Maths-I. He stated that in the investigation, it was revealed that the cross marks and tick marks in Exhibit 93 were made by Shamrao Kalamkar. He admitted that such cross marks or tick marks are not in the copies supplied to the accused and he could not assign any reason for the same. The learned Senior Counsel submitted that this would indicate that those cross marks and tick marks were in fact made subsequently after the copies meant for delivery to the accused were prepared and, therefore, would rule out Shamrao Kalamkar making tick marks or cross marks.
67. The entire cross-examination of the Investigating Officer ::: Downloaded on - 09/06/2013 14:18:42 ::: 60 would show that there was absolutely no reason to rope in appellant Hemant Thakre except what Shamrao Kalamkar was allegedly told to the Investigating Officer, which cannot be a part of the evidence.
68. The learned Senior Counsel submitted that since the chit was in respect of only Engineering students and since the appellant was the Dean of Engineering Faculty, it is reasonable to infer that the chit was sent because the students came with a grievance that the revaluation result was delayed. He pointed out that the fact that there was no irregularity in respect of half of the numbers of the chits, would rule out the possibility that the chit was sent in order to secure increase in the marks or to influence the result. The learned Senior Counsel submitted that in a case resting on circumstantial evidence, unless it is shown that the circumstances are incompatible with the innocence of the accused, conviction could not be handed down.
69. Relying on a judgment of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, reported at AIR 1984 ::: Downloaded on - 09/06/2013 14:18:42 ::: 61 SC 1622. The learned counsel 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 drawn in Sharad's case by the Hon'ble Supreme Court in para 152 of the judgment may be usefully reproduced as under :
"152. 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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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."::: Downloaded on - 09/06/2013 14:18:42 ::: 62
(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.
70. In Jaharlal Das v. State of Orissa, reported at AIR 1999 SC 1388, on which the learned counsel for the accused placed reliance, 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 ::: Downloaded on - 09/06/2013 14:18:42 ::: 63 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.
71. In Abdulla Mohammed Pagarkar etc. v. State (Union Territory of Goa, Daman and Diu), reported at AIR 1980 SC 499, the Court held that even strong suspicion created against the accused, and failure of the accused to repel the same, is not sufficient to convict the accused of offences punishable under Section 5(1)(d) of the Prevention of Corruption Act and Sections 420 and 471 of the Penal Code.
72. In Harendra Narain Singh, etc. v. State of Bihar, reported at AIR 1991 SC 1842, the Supreme Court held that in a murder case resting on circumstantial evidence, if, upon appreciation of evidence, two views are possible, one pointing to the guilt of the accused and another to the innocence of the accused, the Court should adopt the latter view, since it is the basic rule of criminal jurisprudence.
73. There can be no doubt about the propositions which ::: Downloaded on - 09/06/2013 14:18:42 ::: 64 have been reiterated by the Apex Court from time to time in order to guide all the Criminal Courts while considering whether conviction could be based on circumstantial evidence.
74. Viewed in this light, the only circumstance established in this case is that accused Rajendra Yadav had failed in Physics theory, among other subjects. An application for revaluation had been made. At the revaluation, he had secured 20 and 21 marks respectively, which were changed to 29 while noting the marks in the RTR. This entry is not proved to have been in the handwriting of accused Madhukar Smarth, since the handwriting was not sent to the Handwriting Expert for no explicable reason, leading to an inference that the entry was not sent because the prosecution feared that the entry would not be proved to be in the handwriting of accused No.2. The evidence does not show as to who made the entry in the RTR changing marks of Rajendra Yadav to 29. Accused Hemant Thakre was the Dean of the Engineering Faculty. Result of revaluation was unduly delayed.
Accused No.4 Hemant Thakre did send chits containing roll ::: Downloaded on - 09/06/2013 14:18:42 ::: 65 No.7555 of accused Rajendra Yadav, but mentioned subjects Maths-I and Maths-II and not subject Physics in the said chit.
Rajendra Yadav is not shown to have been favoured in the subjects of Maths-I and Maths-II. Half of the students whose roll numbers are mentioned in the chits have not at all been benefitted. Considering all this, it would be difficult to hold that complicity of appellants in a conspiracy to increase the marks of appellant Rajendra Yadav in the subject of Physics is established.
The circumstances established can also be explained simply as a mistake in entering marks of subject Physics. Had there been a conspiracy to increase the marks of accused Rajendra Yadav, he would not have miserably failed in the paper of Maths-I, which subject was specifically mentioned against roll number of Rajendra Yadav in the chit sent by accused Hemant Thakre.
75. It is not that there may be no design in favourably changing the marks of Rajendra Yadav. However, the foundation of conspiracy of changing marks was Rajendra Yadav's approaching Hemant Thakre and Hemant Thakre's influencing the ::: Downloaded on - 09/06/2013 14:18:42 ::: 66 other authorities to change marks, which has factually been found to be improbable, because Hemant Thakre's chit did not mention the subject in which Rajendra Yadav was favoured. On the other hand, it mentioned a subject in which Rajendra Yadav miserably failed. Since this foundation of conspiracy is demolished, the charges would have to be held as not proved though there is obviously a dereliction of duty on the part of appellant Shamrao Kalamkar, who was the Assistant Registrar (Revaluation), in ensuring that there was no mistake in entering marks scored by the students at the revaluation. It would not be open to a person in the position of the Assistant Registrar (Revaluation), who headed the Revaluation Section, to say that policies were laid down by the higher-ups, which left loopholes and so he was helpless in the matter and the implementation of the policies was done by the subordinates and others and after mistakes occurred in the implementation and so he was not responsible. He should have realized that it was his duty to ensure that the policies laid down by the University authorities were implemented in the ::: Downloaded on - 09/06/2013 14:18:42 ::: 67 manner which will leave no room for mischief. It would not be open to a person in such high position to show that since marks were being entered in respect of thousands of answer sheets, it was physically not possible for him to ensure accuracy and that he was obliged to look into the matter only if some complaint was made to him. He was expected, as responsible officer to carry out appropriate checks to keep movement register and record to note down how documents and registers moved from person to person in order to ensure that there was no scope for any fraud.
However, his not having done so would not result in his being fastened with criminal liability, since this breach of trust is not in respect of any property in spite of the learned APP's submission that even this amounts to breach of trust in relation to property.
76. In R.K. Dalmia v. Delhi Administration, reported in AIR 1962 SC 1821 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 ::: Downloaded on - 09/06/2013 14:18:42 ::: 68 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 ::: Downloaded on - 09/06/2013 14:18:42 ::: 69 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 non-
expendable. The University authorities would obviously take appropriate action for lapses on the part of Shamrao Kalamkar, since those lapses cannot be dealt with by Criminal Court.
77. It is true that public confidence in administration of justice is shaken when lapses in investigation result in failure of prosecution. However, in our anxiety to ensure that public confidence in administration of justice is not shaken, if we go on overlooking lapses in investigation, what results is slapping the Court with chargesheets mechanically filed. An erosion in efficiency of investigating has set in which has brought the situation to this pass when neither investigator nor prosecutor would check up whether this is a case to put accused to trial. It seems that in this case in order to quieten the public outcry about scandal of increase in marks, the administration came up with a chargesheet in every case where an increase in marks was noticed ::: Downloaded on - 09/06/2013 14:18:42 ::: 70 without bothering to check up as to how that increase could be attributed to criminal acts of persons concerned. This knee jerk response to public outcry leading to filing of number of chargesheets, effecting number of arrests and mindless investigation without bothering to check up the premises on which the accusations are made, results, borrowing Shakespear's words, in making a scarecrow of law on which birds of prey merrily perch.
78. In the result, all the appeals are allowed.
The convictions of the appellants for offences punishable under Sections 420, 468, 471, 120-B and 409 read with Sections 109 and 34 of the Penal Code and sentences imposed upon them are set aside. The appellants are acquitted of those offences.
Judge pdl ::: Downloaded on - 09/06/2013 14:18:42 :::