Bombay High Court
Yadav S/O Nathoba Kohchade vs The State Of Maharashtra on 6 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.87 OF 2008
WITH
CRIMINAL APPEAL No.88 OF 2008
WITH
CRIMINAL APPEAL No.90 OF 2008
CRI.APPEAL No.87 OF 2008.
Yadav s/o Nathoba Kohchade,
aged about 55 years, Occupation: Nil,
R/o University Quarters,
Behind Subhedar Layout, Ramnagar,
Nagpur.
... APPELLANT.
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Sitabuldi , Nagpur.
... RESPONDENT.
Shri Amol S. Mardikar, Advocate for Appellant.
Shri P.D.Kothari, Additional Public Prosecutor for Respondent.
WITH
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CRI.APPEAL NO.88 OF 2008.
Mahendra S/o. Kisanrao Gote,
aged about 35 years, Occu.: Advocate,
R/o. Nagpur (In Jail)
... APPELLANT.
Versus
The State of Maharashtra,
through P.S.O., Sitabuldi
Police Station, Nagpur.
... RESPONDENT.
Shri R.M. Patwardhan, Advocate for Appellant.
Shri P.D.Kothari, Additional Public Prosecutor for Respondent.
WITH
CRI.APPEAL NO.90 OF 2008.
Madhukar S/o. Wamanrao Smarth
aged about 74 years, Occu.: Presently Nil,
R/o Pratap Nagar, Nagpur.
Presently lodged at Central Prison,
Nagpur.
... APPELLANT.
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station Sitabuldi, Nagpur.
... RESPONDENT.
Mrs. Sangeeta Gaikee-Jachak, Advocate for Appellant.
Shri P.D.Kothari, Additional Public Prosecutor for Respondent.
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CORAM : R.C. CHAVAN, J.
Date of Reserving the Judgment : 21-01-2009.
Date of Pronouncing the judgment : 02-2009.
JUDGMENT :
1. These appeals are directed against appellants' conviction for offences punishable under Sections 420, 468, 471 read with Sections 109/34 of the Penal Code, Section 120-B and Section 409 of the Penal Code and sentences imposed upon them for those offences by the learned 2nd Additional Chief Judicial Magistrate, Nagpur, in Criminal Case No.361 of 2002.
2. The facts which led to prosecution and conviction of the appellants are as under :
Appellant Mahendra Gote in Criminal Appeal No.88 of 2008, original accused No.1 before the trial Court, was a student of LL.B. Final Year degree course. He had appeared for final year examination in Summer of 1996 and his Roll No. was 6302. He seems to have failed in all the seven subjects and had applied for revaluation in those subjects.::: Downloaded on - 09/06/2013 14:19:25 ::: 4
3. Procedure for conduct of examinations is prescribed in Ordinance No.9 issued by the Nagpur University. It provides, among other things, from Clause 57 onwards, for appointment of tabulators, scrutineers, etc., and their respective roles. This ordinance did not provide for revaluation, which facility was introduced by Ordinance No.159. Ordinance No.159 providing for revaluation merely gives sketchy procedure about revaluation. It does not lay down the procedure to be followed internally by the University administration.
Therefore, it may be taken that the provisions of Ordinance No.9 would apply mutatis mutandis to revaluation as well.
4. The practice, which was followed by the University officials for such revaluation has been deposed to by PW 1 Narayan Ghatole, an employee of the University in the Revaluation Section. According to him, after a candidate applied for revaluation after paying the prescribed fee, an entry used to be taken in the Revaluation Tabulation Register (hereinafter referred to as "the RTR" for the sake or brevity).
The RTR contains the following columns :
::: Downloaded on - 09/06/2013 14:19:25 ::: 5 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 14:19:25 ::: 65. The answer books of students used to be sent to the revaluers who used to record marks, not on the answer sheet itself, but on a revaluation sheet (for the sake of brevity, referred to hereinafter as "R1/R2" for the two revaluers). Upon receipt of result of revaluation from the revaluers Roll Number of the candidates on the answer sheet used to be unmasked and the code number printed on the answer sheet used to be entered against the roll number of the candidate concerned in Revaluation Tabulation Register (RTR). After this R1/R2 sheets used to be handed over to scrutineers who would then enter the marks assigned by two revaluers, draw average, note whether there was any change or adverse change and what was the percentage of change. If there was a change or adverse change in excess of 5% the scrutineers would make note and eventually such change used to be noted in the Final Tabulation Register (FTR) as well, on the basis of which mark sheets were prepared.
6. The marks scored by appellant Mahendra Gote initially and upon revaluation in various papers are as under :
::: Downloaded on - 09/06/2013 14:19:25 ::: 7Code Subject Marks of Marks of Average Result Percenta No. 1st 2nd Marks Change/ ge of Examiner Examiner No change increase decrease (As per ord.) 4504 Cr.P.C. 28 36 32 Change 9.00% 4138 CPC 51 48 50 Change 18.00% 5323-A Interpre 27 74 51 Change 20.00% 4793 Admin 05 38 17 11 Adv.change 10.00% 5321-A Drafting 31 69 50 Change 15.00% 5316-A Evidence 27 73 50 Change 28.00% 4939 Trust 49 ig 52 51 Change 5.00%
7. It is the case of the prosecution that in the subject of C.P.C.
Revaluer-I, Advocate Santosh Akolkar had allotted 31 marks which were changed to 51 while entering them in RTR. Revaluer-2 Advocate Usha Tanna had allotted 48 marks, which were correctly entered in RTR. Average was drawn up as 50 instead of 44. The student was thus, shown to have passed. This change was allegedly done as a part of conspiracy. It was the prosecution case that original accused No.5 Dinkar Ingle used to keep in touch with the students on behalf of appellant Yadav Kohchade, original accused No.4, who was Assistant Registrar of Revaluation Section. He used to in turn influence the scrutineers to change marks in the RTR and FTR. Appellant Madhukar ::: Downloaded on - 09/06/2013 14:19:25 ::: 8 Smarth, original accused No.3, and original accused No.2 Suresh Manmode, who had expired even before charges could be framed, were the two scrutineers who are alleged to have made wrong entries of marks in order to favour appellant Mahendra Gote. On the basis of this change in marks appellant Mahendra Gote obtained marksheet of having passed the examination and a degree, enrolled himself as an Advocate and is reportedly practicing in District and Sessions Court at Nagpur.
8. Fraud came to light and an offence was registered initially on the report by one Prakash Mistry. In course of investigation, police officers seized necessary documents, caused them to be sent for expert examination, recorded statements of witnesses and sent up a chargesheet, which was eventually split up and supplementary charge sheets were filed for each instance of fraudulent enhancement of marks. This is how three appellants, along with deceased accused No.2 Suresh Manmode and acquitted accused No.5 Dinkar Ingle, came to be chargesheeted.
::: Downloaded on - 09/06/2013 14:19:25 ::: 99. Learned 2nd Additional Chief Judicial Magistrate charged the appellants and accused Dinkar Vyankat Ingle for the offence punishable under Section 420, 468, 471, 120-B read with Sections 109 and 34 of the Penal Code. Since all the accused pleaded not guilty to the said charges, they were put on trial at which the prosecution examined in all five witnesses. P.W. 1 Narayan Ghatole is a clerk in Revaluation Section of Nagpur University who was familiar with the procedure as also the facts of the case. P.W. 2 Advocate Shri Santosh Akolkar and P.W. 3 Advocate Usha Tanna are the revaluers, who examined paper of the Code of Civil Procedure. P.W. 4 S.K. Moinuddin Sheikh is a clerk of City Branch of University College of Law where appellant Mehendra Gote was taking education. P.W. 5 PSI Anil Lokhande is the Invetigating Officer. After considering the evidence tendered in light of defence raised by the appellant, the learned 2nd Additional Chief Judicial Magistrate held the appellants guilty of various offences and sentenced them as under :
a) Appellant Mehendra Gote was convicted for offence punishable under Section 420 read with Section 34 of the Penal Code and appellant Madhukar Smarth and Yadav ::: Downloaded on - 09/06/2013 14:19:25 ::: 10 Kohchade were convicted for the offence punishable under Section 420 read with Sections 109/34 of the Penal Code and they were sentenced to suffer rigorous imprisonment for four years and fine of Rs.Twenty Thousand or in default rigorous imprisonment for two months.
b) appellant Mahendra Gote, Madhukar Smarth and Yadav Kohchade were convicted for the offence punishable under Section 468 read with Section 109/34 of the Penal Code and were sentenced to suffer rigorous imprisonment for three years and fine of Rs.Fifteen Thousand or in default rigorous imprisonment for one month.
c) appellant Mahendra Gote, Madhukar Smarth and Yadav Kohchade were convicted for the offence punishable under Section 471 read with Section 109/34 of the Penal Code and were sentenced to suffer rigorous imprisonment for one year and fine of Rs.Five Thousand or in default rigorous imprisonment for one month.
d) all the three appellants were convicted for the offence punishable under Section 120-B of the Penal Code and were ::: Downloaded on - 09/06/2013 14:19:25 ::: 11 sentenced to suffer rigorous imprisonment for six months and fine of Rs.Two Thousand or in default rigorous imprisonment for fifteen days.
e) appellant Madhukar Smarth and Yadav Kohchade were convicted for the offence punishable under Section 409 read with Section 34 of the Penal Code and were sentenced to suffer rigorous imprisonment for four years and fine of Rs.Twenty Thousand or in default rigorous imprisonment for two months.
10. The learned Magistrate directed that the sentences shall run consecutively. He also directed that mark sheets of LL.B. Final Year as well as degree certificate of appellant Mahendra Gote be confiscated and intimation of the judgment be given to Bar Council of Maharashtra. He had acquitted accused Dinkar Vyankat Ingle of all the offences for which he was charged. As already pointed out, original accused No.2 Suresh Manmode had expired before the charge could be framed. Aggrieved by their conviction and sentence the appellants have preferred this appeal.
::: Downloaded on - 09/06/2013 14:19:25 ::: 1211. I have heard Advocate Shri Amol S. Mardikar for appellant Yadav Kohchade in Criminal Appeal No.87 of 2008, Advocate Shri R.M.Patwardhan for appellant Mahendra Gote, appellant in Criminal Appeal No.88 of 2008, Advocate Mrs. Sangeeta Gaikee-Jachak for appellant Madhukar Smarth, appellant in Criminal Appeal No.90/2008 and learned Additional Public Prosecutor Shri P.D.Kothari for the State.
With the help of the learned counsel for the parties, I have gone through the entire record.
12. The learned counsel for the appellants submitted that in this case the prosecution came up with a story of conspiracy of getting marks increased through original accused No.5 Dinkar Ingle. The learned trial Judge has acquitted said Dinkar. Therefore, according to the learned counsel, since crucial link in the conspiracy has been snapped the theory of conspiracy must itself fail and the appellants would be entitled to acquittal.
13. The learned Additional Public Prosecutor contested this submission by relying on the judgment of the Supreme Court in Anicete ::: Downloaded on - 09/06/2013 14:19:25 ::: 13 Lobo Vs. State (Goa, Daman & Diu), reported at AIR 1994 SC 1613.
While considering the involvement of accused in offences punishable under Sections 467, 468, 420 and 120-B of the Penal Code, arising out of encashment of a forged bank draft, the Court held that acquittal of one of the accused would be of no consequence on the complicity of the other accused persons, all of whom were allegedly involved in the conspiracy. In view of this, acquittal of accused Dinkar Ingle need not vex the Court.
14. The learned counsel for the appellant next submitted that appellant Mahendra had applied for revaluation in seven subjects, out of which he had cleared five papers, including the paper of the Code of Civil Procedure, in which mischief is alleged to have been committed.
He submitted that if the appellant Mahendra can clear four out of seven papers without there being any mischief, there is no reason to infer that there was mischief in the remaining fifth paper. The learned Additional Public Prosecutor submitted that this contention is fallacious. He pointed out that appellant's alteration of marks in one paper of the Code of Civil Procedure has been firmly established. But ::: Downloaded on - 09/06/2013 14:19:25 ::: 14 this does not mean that as far as other papers are concerned, there is no room for doubt of mischief being played. The learned A.P.P. submitted that the papers which were being examined were of final year law examination. Law is not something which is uncertain or where assessment can drastically vary. He pointed out that in the subject of Interpretation of Statutes, appellant Mahendra Gote had initially secured 31 marks. Revaluer-1 had given him 27 marks.
Revaluer-2 had given 74 marks, though about the digit 7 in the figure of 74 there can be some doubt. He submitted that this drastic variation in the assessment of the same paper of a subject of law by two revaluers is itself distressing. In the paper of Drafting, the appellant had secured 35 marks initially. Revaluer-1 gave him 31 marks, whereas Revaluer-2 has given him 69 marks. This drastic disparity speaks volume about the rot that had set in the examination system.
Sir James Fitzjames Stephen the author of Evidence Act, would wonder as to how his Evidence Act has become so uncertain that one examiner assessed the performance of appellant Mahendra by giving him 22 marks. First Re-valuer gave him 27 marks and second re-valuer gave him 73 marks. It appears that the marks given by first valuer in all ::: Downloaded on - 09/06/2013 14:19:25 ::: 15 these cases conformed to initial valuation of Mahendra's paper. The marks allegedly given by second revaluers are possibly unjustifiably inflated. Therefore, not much need be made about appellant's clearing five subjects out of seven in which revaluation was sought. for the legal fraternity, it is definitely not a matter of pride, if not decidedly a matter of being ashamed.
15. It is the contention of the learned counsel for the appellant Mahendra that he had received the marksheet by post and therefore, had no idea as to how his marks came to be increased. This argument had been advanced time and again by the counsel for students like Mahendra Gote whose appeals were heard together. A scrutineer is unlikely to take a fancy for the name of a student and increase his marks unwarrentedly unless the scrutineer had been induced to do so.
In this case, the evidence of P.W. 2 Advocate Santosh Akolkar and P.W. 3 Usha Tanna clearly shows that the marks allotted by Advocate Akolkar which were 41 had been changed to 51 in order to favour the candidate. No other inference is possible than that this increase was at the behest of the appellant who was beneficiary. It was also argued on ::: Downloaded on - 09/06/2013 14:19:25 ::: 16 behalf of appellant Mahendra Gote that he was a student of City Branch of Law College, which was far away from the Main Branch of the Law College, where accused No.5 Dinkar Ingle, link in the conspiracy, was serving. It was suggested that, therefore, there would have been no occasion for Mahendra Gote to contact said Dinkar Ingle.
This submission has to be rejected, because within the same city distances really do not matter. Also, when a person has to get his work done, it is not necessary that the miscreants must be known to the seekers of favour. A seeker of favour would either himself be turn to the miscreants or the miscreants may go in search of such customer. In any case, since Dinkar Ingle has been acquitted, it is not necessary to deal with this aspect at length. Therefore, the theory sought to be propounded that this change of marks may be merely a mistake and not a part of conspiracy, has to be rejected. It may be useful to recall again, that the drastic disparity in the marks assigned to the appellant in subject Interpretation of Statutes, Drafting and Evidence Act, also create a suspicion, though it cannot form the foundation for a criminal charge.
::: Downloaded on - 09/06/2013 14:19:25 ::: 1716. It was submitted that for proving conspiracy it is necessary to show that there was a meeting of minds, some conference which led to the mischief. As rightly pointed out by the learned A.P.P., conspiracy is not something of which direct evidence would be available since, it is a secret arrangement. Therefore, considering the human probabilities, conclusion as to whether there has been a conspiracy would have to be drawn. The learned counsel for the appellant submitted that mere suspicion, however, strong, cannot take place of proof and for this purpose relied on the celebrated judgment of the Supreme Court in Sarwan Singh Vs. State of Punjab, reported at A.I.R. 1957 S.C. 637. There can be no doubt that there is lot of distance to be travelled from may be to must be, from suspicion to proof. However, it would not be open to shut one's eyes to the human probabilities while considering as to how an incident could have occurred. In view of this, the increase in marks of appellant Mahendra Gote in the paper of the Code of Civil Procedure to favour him cannot be imagined to have been a windfall from heaven and must be held to be handy work of unscrupulous scrutineers at the instance of Mahendra Gote.
::: Downloaded on - 09/06/2013 14:19:25 ::: 1817. Relying on the judgment of the Supreme Court in Abdul Karim Vs. State of Mysore, reported at AIR 1979 SC 1506 the learned counsel for the appellant Mahendra Gote submitted that Mahendra Gote had no reason to believe that the mark sheet which he had received was prepared as a result of forgery. This contention has to be rejected. There would have been no reason for the scrutineers to alter the marks of Mahendra Gote to his advantage if he had not approached them, and therefore, necessary knowledge that marks shown in the mark sheet were not the real marks earned by him ought to be attributed to him.
18. The learned counsel for the appellant submitted that the Investigating Officer P.W. 5 Anil Lokhande had admitted that he had randomly picked up few cases from RTR where he noticed overwriting.
The learned counsel submitted that this is one such case and therefore, it will be improper to victimise appellant Mahendra Gote on account of such randomly picked up instance of overwriting. As already observed, since it is not shown that though randomly picked up, the change in marks of appellant Mahendra Gote was an innocent mistake, this argument would have to be rejected.
::: Downloaded on - 09/06/2013 14:19:25 ::: 1919. This takes me to the question of complicity of the other appellants. P.W. 1 Narayan Ghatole stated that entries in the FTR are in the handwriting of appellant Madhukar Smarth. He also stated that the entires in the RTR in respect of the marks in R1 and R2 columns and average are written by appellant Madhukar Smarth and rest of the entires are in the handwriting of deceased scrutineer Suresh Manmode.
It seems that the remaining entries to which P.W. 1 Narayan refers to are column of result i.e. "change" or "no change", percentage of increase or decrease and remarks. The learned Additional Public Prosecutor submitted that since Narayan Ghatole was familiar with the handwriting of appellant Madhukar Smarth, the learned trial Magistrate has rightly believed his evidence and held that the offending entry was in the handwriting of Madhukar Smarth, apart from comparison under Section 73 of the Evidence Act.
20. In this case, handwriting expert has not been examined.
The offending handwriting was in fact not at all sent to the handwriting expert. Special Public Prosecutor sought to file vide pursis ::: Downloaded on - 09/06/2013 14:19:25 ::: 20 Exh.72 certified copy of an application Exh.61 in Regular Criminal Case No.372/2002, whereby the Special Public Prosecutor had given notice to admit documents in that case. By this notice specimen and sample handwriting of appellant Madhukar, natural handwriting of Madhukar Smarth, questioned handwriting from RTR, request letter to the handwriting expert and handwriting expert Shri Biradar's opinion pertaining to appellant Madhukar Smarth's handwriting were tendered to the defence counsel in that case. The learned Magistrate had ordered the accused in that case to admit or deny. Accused Nos. 1 and 3 in that case had endorsed that they had no objection and therefore, the learned Magistrate had allowed admission of those documents in that case i.e. Regular Cri. Case No.372/2002. A copy of the said notice had been exhibited as Exh.73 in the present case. It may be seen that behind pursis Exh.72 Ms. Gaikee, learned counsel for appellant No.3, has specifically endorsed that 'Q-1' and 'Q-2' questioned handwriting pertained to Jitendra Yadav and Jyoti Chhabra and the opinion did not pertain to the case in hand. The learned Magistrate passed an order below pursis Exh.72, specifically noting that the handwriting in the present case was not sent to the handwriting expert. Yet he allowed ::: Downloaded on - 09/06/2013 14:19:25 ::: 21 filing of the documents and referred to the power of the Court under Section 73 of the Evidence Act to compare the handwriting.
21. This seems to be the fourth case in which questioned handwriting of appellant Madhukar Smarth was not sent to the handwriting expert. While there can be nodoubt that the Court would have power to compare the handwriting under Section 73 of the Evidence Act and come to appropriate conclusion, it has also to be borne in mind that when it was possible to take help of expert, and when help of such expert was taken in respect of handwriting of the same appellant in other cases, failure to send the questioned handwriting in this case would lead to drawing of an adverse inference.
It has also to be noted that P.W. 1 Narayan Ghatole had not stated that the entire entry in respect of the Code of Civil Procedure paper of appellant Mahendra was in the handwriting of appellant Madhukar Smarth. He has stated that the only entry of marks assigned by first and second revaluer and the average marks are in the handwriting of Madhukar Smarth. Percentage of increase or decrease and, may be, even the signature is not of the appellant Madhukar, but that of ::: Downloaded on - 09/06/2013 14:19:25 ::: 22 deceased scrutineer Suresh Manmode. In this context, it would be improper to rely on the word of the witness who had not actually seen the appellant entering the offending marks, but is so concluding merely on the basis of his familiarity with the handwriting. Therefore, corroboration from an independent expert would have helped in bridging the gap from 'may be' to 'must be'. In this case, appellant Madhukar had specifically denied having made, offending entry in his statement under Section 313 of the Code of Criminal Procedure. In view of this, it cannot be held conclusively that the entry in question was made by appellant Madhukar Smarth.
22. This takes me to the question of complicity of appellant Yadav Kohchade. P.W. 5 Investigating Officer PSI Anil Lokhande, the Investigating Officer, stated in very first paragraph of the cross-
examination on behalf of appellant Yadav Kohchade i.e. paragraph 23 of his deposition, that there was no incriminating document concerning appellant Yadav. Since Yadav was Assistant Registrar (Revaluation) his name was mentioned in the chargesheet, and except the substance in chargesheet, statement of no other witness has been recorded to show ::: Downloaded on - 09/06/2013 14:19:25 ::: 23 concern of appellant Yadav Kohchade with this case. Now, if this certificate of innocence is given by the Investigating Officer himself, no further scrutiny is warranted. Otherwise too, the evidence of P.W. 1 Narayan Ghatole, who was an employee in the Revaluation Section, Revaluers P.W. 2 Advocate Santosh Akolkar, P.W. 3 Advocate Ms.Tanna, as also evidence of P.W. 4 Sheikh Moinuddin an employee of University College of Law, Dighori Branch, does not help in connecting appellant Yadav Kohchade to the change of marks of Mahendra Gote in the paper of the Code of Civil Procedure. It is not clear as to what causation led the learned Magistrate to conclude otherwise.
23. The prosecution makes it appear that they treat everyone even handedly and send every suspect for trial to let the Court decide as to who is the offender. This is, however, a mere camouflage for shirking the responsibility to decide as to who cannot be put to trial because of insufficient evidence, or rather inability to collect adequate evidence. (Such inability may be due to genuine pressure on time and prioritizing activities, though such priorities may not be always set on ::: Downloaded on - 09/06/2013 14:19:25 ::: 24 the touchstone of call of duty and political or other extraneous consideration may weigh). Even handedness in treatment to all suspects was alas, not noticed in cases pertaining to this scandal. This can be said since 22 appeals arising out of convictions in this scandal were heard together and so a comparison became possible. As already observed, it is a strange coincidence that questioned writing of Scrutineer Madhukar Smarth was not referred to Examiner of Questioned Documents in these bunch of cases. May be in cases which are still being tried his questioned writings might have been sent for examination. But in spite of this, the Prosecutor too mindlessly "pelted" evidence relating to examination of handwriting at the Court without as much bothering to find out its relevance. In this case, the learned counsel for accused had endorsed on the pursis by the learned Special Public Prosecutor to tender such evidence that it was irrelevant.
Yet the learned Special Public Prosecutor did not feel the need to ensure that the disputed writing was actually examined and evidence of the expert was tendered thereafter. And strangely, the learned Trial Magistrate readily bit the bait by relying on such irrelevant evidence.
Thus were the blind led by blind.
::: Downloaded on - 09/06/2013 14:19:25 ::: 2524. This is not all. In some cases, two Handwriting Experts were examined without ascertaining whose evidence was vital for establishing guilt, and in some cases, none was examined. In some cases, the acting Vice Chancellor was examined to prove a sanction to prosecute, while in some others (like this case), he was not examined, though officer put to trial Yadav was same. This pick and choose is distressing in the background of the boasts of securing convictions, which cannot withstand appellate scrutiny, making one wonder if this too is a gimmick of silencing public outcry, while at the same time ensuring that wrong-doers do not really suffer, a trick to direct elsewhere the public ire for one's own sins of omission and commission.
25. Since what has happened in these bunch of cases is symptomatic of a wider malady possibly affecting our criminal justice system, it became necessary to record this. An old University of repute, having a full-fledged Law faculty is the victim in this case. Rather than a departmental post mortem by the Director of Prosecution or top police brass, a research - a case study - into the manner in which these cases were investigated and prosecuted, vis-a-vis powers and duties of ::: Downloaded on - 09/06/2013 14:19:25 ::: 26 authorities concerned, may usefully provide policy makers with required inputs to prepare our systems to effectively deal with such scams and scandals in future.
26. The path of choosing a populist option may have been open to the learned Trial Magistrate, but it is decidedly closed to a court of record, since it will give an undesirable turn to the course of law and may jeopardise liberty of the common man - throwing him at the mercy of the police and the prosecution. For, if the course adopted by the learned Magistrate were to be approved, whether there be evidence to establish guilt or not, if same ragtag chargesheet is filed and irrelevant evidence is tendered, yet a conviction would have to be handed down. Rather than playing to the gallery, a criminal Court must perform its classical role of zealously guarding the liberty of a citizen.
27. This takes me to the question as to what offences, if any, are proved against appellant Mahendra. The learned counsel for the appellants submitted that conviction for offence punishable under ::: Downloaded on - 09/06/2013 14:19:25 ::: 27 Section 420 of the Penal Code is not justified, since there is no delivery of any property or valuable security. The learned APP submitted that the conviction under Section 420 (as also under Section 409) of the Penal Code is justified, since the word "property" need not be given a restricted meaning to money or other tangible property. For this purpose, he cited some decisions of the Supreme Court.
28. 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 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 ::: Downloaded on - 09/06/2013 14:19:25 ::: 28 covered by that section. The learned A.P.P. submitted that in view of this judgment, the marks earned by the appellant-student and the mark-sheet issued to him would be a sort of property and therefore, the offence punishable under Section 420 of the Penal Code as also 409 of the Penal Code would be attracted. It is not possible to accept this submission. In the case which the Supreme Court was considering, the question was of entrustment that dominion over funds of Bharat Insurance Company and in that context the observations came. It cannot be held that the property for the purpose of Section 420 or 405 of the Penal Code would be non-corporeal property. It will have to be either movable or immovable property or the property which is transferable, consumable or capable of being spent, and not one of the type of mark-sheet which is non-transferable or non-expendable.
29. In Shivnarayan v. State of Maharashtra, reported at AIR 1980 SC 439, the Supreme Court again considered what constitutes 'property' for the purpose of Section 409 of the Penal Code and held that chose in action is 'property'. This cannot help the prosecution in branding the registers which the scrutineers were supposed to fill up or ::: Downloaded on - 09/06/2013 14:19:25 ::: 29 the mark sheets which are appellant-students got to be "property" since a chose in action is indeed a property recognised as such in law and is also transferable. Therefore, the presentation by appellant Mahendra of mark list on the basis of wrong marks for getting an exemption in the subject of C.P.C. while appearing for remaining papers would amount to offence punishable under Section 417 of the Penal Code and not Section 420 of the Penal Code.
30. Relying on judgment In Hardeep Singh and others v. State of Haryana, reported at AIR 1008 SC 3113, where, while considering the provision of Section 34 of the Penal Code, the Court observed that the provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was played by each of them, the learned counsel for the appellants assailed conviction by resorting to Section 34 of the Penal Code. In that case, the Court further held that for applying Section 34, it is not necessary to show that there was some overt act on the part of the accused. In Shiv Prasad Chuni Lal Jain and another v. State of ::: Downloaded on - 09/06/2013 14:19:25 ::: 30 Maharashtra, reported at AIR 1965 SC 264, the Court held that when an accused person was not present when various offences were committed by the co-accused, he could not be convicted with the help of Section 34 of the Penal Code. Therefore, there can be no question of conviction of appellant Mahendra Gote with the help of Section 34 of the Penal Code. His conviction, as far as forgery is concerned, would have to be by recourse to Section 109 of the Penal Code, since it was on his abetment that the scrutineers changed his marks.
31. The learned counsel for the appellant Mahendra Gote submitted that the learned Magistrate had been unduly harsh in the matter of sentence. While there can be no doubt that such offences may be dealt with sternly there has to be a sense of proportionality in the sentence to be imposed. It has to be borne in mind that in a moment of indiscretion in his youth, appellant Mahendra Gote opted for the easy path of getting his marks increased so as to enter the Bar. His conviction would cast a stigma and eclipse his whole career as a lawyer. Considering this consequence, as also the fact that appellant Mahendra Gote was convicted on 12.02.2008 and was released on ::: Downloaded on - 09/06/2013 14:19:25 ::: 31 03.05.2008 and was, thus, in jail for a little over two months, it may not be necessary to send the appellant to suffer a further prison term.
As far as cancellation of his degree is concerned, the University Authorities would take appropriate steps and Bar Council too would take note of this conviction. Cancellation of degree was beyond the scope of powers of the learned Magistrate.
32. In view of this, Criminal Appeal Nos. 87 of 2008 and 90 of 2008 are allowed.
Conviction of these appellants for the offences punishable under Sections 420, 468, 471, read with Section 109 and 34 Section 409 read with Section 34 and 120-B of the Indian Penal Code and sentences imposed upon them are set aside. They are acquitted of those offences.
33. Criminal Appeal No.88 of 2008 is partly allowed.
Conviction of the appellant Mahendra Gote for the offence punishable under Section 420 of the Indian Penal Code is altered to one for the offence punishable under Section 417 of the Penal Code ::: Downloaded on - 09/06/2013 14:19:25 ::: 32 and he is sentenced to suffer rigorous imprisonment for the period already undergone and to pay a fine of Rs.Twenty Thousand or in default suffer rigorous imprisonment for the period of two months.
His conviction for the offences punishable under Sections 468 and 471 read with Section 109 of the Indian Penal Code is maintained, but sentence is altered to rigorous imprisonment for the period already undergone and fine of Rs.Twenty Thousand or in default rigorous imprisonment for further period of two months for both the offences, punishable under Sections 468 and 471 of the Indian Penal Code.
The order directing cancellation of marksheet of LL.B. Final Year and Degree Certificate is set aside. University Authorities as well as Bar Council would be at liberty to take appropriate action.
JUDGE RR ::: Downloaded on - 09/06/2013 14:19:25 :::