TMI Blog2004 (3) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... nd A-4 was an Assistant Registrar, Examination Wing, Kerala University. A- 1 was a Pre-degree student during the academic years 1978-79 and 1979-80 in the Mar Ivanios College, Thiruvananthapuram, affiliated to the Kerala University. He appeared for the first year Pre-degree examination in April, 1979 and for second year Pre-degree examination in April/May 1980. After the second year examination, A-1 got following marks as indicated in the mark list issued by the Mar Ivanios College: English : 204/300 Hindi : 109/150 Physics : 127/150 Chemistry : 131/150 Biology : 129/150 Grand total : 700/900 Total for the optional subjects, viz. Physics, Chemistry and Biology was 387 out of 450. The above mark list issued by the Kerala University to A-1, through Mar Ivanios College, Thiruvanthapuram was received by both the appellants with their acknowledgement in the mark lists kept in the college. As both appellants were aware that the marks secured by the A-1 were insufficient to get an admission in any medical college for the first year MBBS course in Kerala on merit, they entered into a criminal conspiracy along with A-3 and A-4 on some day between 30.6.1980 and 10.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enal Code, 1860 (in short the 'IPC') read with Section 34 IPC. The case was tried by the Special Court for trial of Mark list Cases, Trivandrum. Sixty three witnesses were examined and 65 documents were marked. The accused persons pleaded innocence, examined one person as DW-1 and exhibited documents. The trial Court found that the accusations were established so far as A-3 and A-4 were concerned. It held the appellants A-1 and A-2 guilty of offences punishable under Sections 471, 420, 120B and 201 read with Section 34 IPC and sentenced to suffer imprisonment for one year and two years for the offence under Sections 471 and 420 respectively and six months each for the charge under Section 120B and 201 read with Section 34 IPC. The accused appellants were acquitted of the charges of the offence under Sections 467 and 468 IPC. By the impugned judgment the High Court found that the conviction was in order so far as the offences relatable to Sections 471, 420 read with Section 34 were concerned, but set aside the conviction for the offences punishable under Sections 120B and 201 IPC. Custodial sentence was reduced to three months each for the offences punishable under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is 'reason to believe' and not 'reason to suspect' which are conceptually different. When the documents were handed over by A-4, there was no scope for either A-2 or A-1 entertaining any doubt, because the source from which the document came is that of Assistant Registrar who is authorised to issue the certificate. The criminal intent is totally eliminated by he factual scenario. The natural reaction would have been to believe the document to be correct. No knowledge can be attributed to A-1 when the forgery or alleged conspiracy is not established. When charge of conspiracy has been not held to be proved, the knowledge cannot be traced to the accused persons. Since no conspiracy has been found in A-1 and A-2, by necessary implication Section 34 is eliminated. Even otherwise, the incident took place more than quarter of a century back when A-1 was a student and aged about 17 years, and this is a fit case for extending the benefit under the Probation of Offenders Act 1958, (in short the 'Probation Act'). In response, learned counsel for the State submitted that clean and cogent evidence show that the actual mark sheets were received by appellant no.1 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by A-1 in the first year for Paper I were known. What they had done was to ask for revaluation. A-1 had obtained 24, 33 and 35 marks in Physics, Chemistry and Biology (as evidenced by Ext. P2). There is no provision for seeking revaluation for practical examination and it is only restricted to theory papers. Unless one knows the marks secured in a particular examination, the question of seeking revaluation does not arise. Though a claim was made that the result of revaluation was not known so far as Ist year is concerned, the evidence on record clearly proves to the contrary. In the communication relating to results of revaluation it had been clearly indicated that there was no change in the marks. Obviously, the marks shown in excess of the actual in Exh.D-4 can be related to Paper II. The excess marks are 33, i.e. 15, 9 and 9 in Physics, Chemistry and Biology respectively. As per Exh. D-4 the marks indicated are 142, 140 and 138 for the aforesaid three subjects. The High Court has taken pains to analyse that for the second year in respect of Paper II the maximum marks are 60 in the aforesaid three subjects. If by way of illustration, Physics marks are taken, originally be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression 'fraudulently and dishonestly' are defined in Sections 25 and 24 IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission of offences punishable under sections 409, 465, 477-A and 120B IPC. Though the accusations under Section 120B were set aside, the High Court confirmed the conviction under Section 409 simpliciter. A contention was raised before this Court that if the charge relating to criminal breach of trust was along with the charge of conspiracy, conviction simpliciter for criminal breach of trust would not be valid. This Court held that if the charge of conspiracy is followed by substantive charge of another offence there is nothing to prevent the Court convicting an accused for the substantive charge even if the prosecution had failed to establish conspiracy. Looked at from any angle the judgment of the High Court does not suffer from any infirmity to warrant interference. So far as the question of sentence is concerned, we find that the High Court has already taken a liberal view so far as A-2 is concerned. In a case when students use forged mark sheets to obtain admission thereby depriving eligible candidates to get seats and that too to a medical course and a doctor is involved in the whole operation, uncalled for leniency or undue sympathy will be misplaced and actually resul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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