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CASE NO.: Appeal (crl.)  916 of 1997

PETITIONER: A.S. Krishnan and Anr.  

RESPONDENT: State of Kerala  

DATE OF JUDGMENT: 17/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

The appeal presents a strange scenario where the  accusation is that appellant No.2, a doctor doctored  documents so that his son appellant No.1 would get admission  to a medical college and become a doctor. Allegations were  to the effect that they manipulated mark sheets and on the  basis of forged mark sheets he got admission which otherwise  would not have been available to him. The mark sheets  related to the two pre-degree examinations of the Kerala  University conducted in 1978-79 and 1979-80, for two years  i.e. Ist and IInd year respectively.  They faced trial with  two others.  For the sake of convenience they are described  as A-1 and A-2 and the other two who were acquitted as A-3  and A-4.

       Prosecution version as unfolded during trial is  essentially as follows:

A-1 is the son A-2, who was running a nursing home at  Ernakulam during the relevant period and 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

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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 10.10.1980 for forging  a mark list showing higher marks and pursuant to such  conspiracy A-4 in the case procured a blank mark list of  Pre-degree examination and by fraudulent means and without  the knowledge and authority of the Controller of  Examinations (PW-1) got the impression of the facsimile  signature of PW-1 and the University emblem seal affixed on  the blank mark list form. A-4 wrote in his own handwriting  falsely and fraudulently the following marks in the forms to  have been secured by A-1 in the Pre-degree final year  examination:

       English         : 204/300         Hindi           : 109/150         Physics         : 142/150         Chemistry               : 140/150         Biology         : 138/150         Grand total     : 733/900

In addition total of 420 marks out of 450 marks was shown  for the optional subjects, viz. Physics, Chemistry and  Biology. A-4 forged the initials of the concerned section  assistants, who actually prepared the true mark list issued  through Mar Ivanios College and received by A-1 and A-2. A-4  also attested a true copy of the mark list (Ext.P27). He   forged with his designation and seal and entrusted both the  forged mark list and its true copy attested by him (Ext.P27)  to A-1 and A-2. Ext.D-4 is the forged mark list. A-1 and A-2  thereafter prepared an application form for admission to a  medical college during the year 1980-81 with their  signatures by incorporating the marks found in Ext.D-4, the  forged mark list fully knowing the forged nature of Ext.D-4  and forwarded such application together with the attested  true copy Ext.P-27 of Ext. D-4 to the medical college,  Thiruvanthapuram with the fraudulent intention to make the  concerned authorities to believe that the marks shown in the  application are the real marks obtained by A-1 and thereby  cheated the selection committee and obtained admission for  the first year M.B.B.S. course on merit basis. Appellants  with the intention of causing disappearance of the evidence  of commission of the crime destroyed the true genuine mark  list/the true copy of which is marked as Ext.D-8 in this  case received by them from Mar Ivanios College and thus the  appellants and the other acquitted accused committed the  alleged offences. A-3 was an associate of A-2.        

Information was lodged with the police. Investigation  was undertaken and on completion thereof charge sheet was  filed indicating commission of offence punishable under  Sections 120B, 466, 468 and 471 of the Indian Penal 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

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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 471 and 420 read with  Section 34 IPC.

       In support of the appeal Mr. U.R. Lalit, learned senior  counsel submitted that after the acquittal of A-3 and A-4  who were primarily alleged to be responsible for the  forgery, conviction cannot be maintained so far as the  appellants are concerned. A-4 had given not only the alleged  forged mark sheet but also himself attested a copy thereof.  There was no reason for the present appellants to suspect  the correctness thereof. There was specific charge of  conspiracy relating to forged mark sheet and to commit an  illegal act. The forgery was alleged so far as A-4 is  concerned. Sections 463 to 471 require as an essential  ingredient the existence of a forged document and use  thereof. It cannot be said that the document in question is  a forged document. The father (appellant No.2) took a  document from A-4 and handed it over to A-1 who used it. The  son (A-1) could not have entertained doubt that the document  handed over to him by the father was a forged one. Unless  there is conspiracy or common intention, Section 34 would  have no application. Even in the instant case, charge of  offence punishable under Section 201 was set aside and there  was acquittal of the charges relatable to Sections 467 and  468. The document cannot be said to be a forged one and when  charges of forgery were not established, there was no  question of a forged document being there. On hypothetical  basis the High Court has proceeded to conclude that the  document was forged as it attributed knowledge of the  forgery and manipulation of the documents to the appellant.  All non-genuine documents are not forged. They must be  covered by the conditions indicated in Sections 463 and 464.  There is no mens rea involved. Unless the part allegedly  played by A-4 is established, there cannot be a forged  document. The prosecution has failed to prove the minimum  requirements of law. It is a case of prosecution having not  proved its case. Even if it is assumed that the document was  forged, A-1 cannot be said to have knowledge or to have used  it fraudulently or dishonestly. There must be a reason to  believe that it was a forged one. The expression ’reason to  believe’ is defined in Section 26 IPC. When the facts of the  case in the background of Section 26 are noted, it cannot be  said that the appellants had reason to believe that the  document was forged. The expression used 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

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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 from the college.  There is no evidence to show that he had applied for re- valuation for the second year. The procedure to be adopted  for seeking re-valuation is admittedly known to the  appellant, because A-1 had applied for the previous year.  The result on revaluation was communicated so far as first  year is concerned. The High Court has analysed the evidence  to show that as required in the declaration form A-2 had  signed the application. Therefore, it cannot be said that  neither A-1 nor A-2 had any knowledge about the forgery. It  has been conceded before the High Court that Exh.D-4 was a  forged document. Even if A-3 and A-4 have been acquitted  and/or conspiracy has not been established, charge under  Section 471 does not get affected.  

       Certain factual aspects need to be noted in the present  case. Though criticism was levelled against the analysis  made by the High Court to find out how on the basis thereof  it was held that the document was forged one, we find no  substance therein. It was clearly conceded before the High  Court that D-4 was a forged document. What was urged before  the High Court was that even if it is forged, the appellants  had not used it deliberately or intentionally as a forged  document. A comparison of the mark sheet filed by A-1 with  the marks register shows great variance. The High Court has  noticed that the appellants had asked for revaluation of the  first year pre degree answer sheets as they were not  satisfied with the marks shown in the mark list and claiming  that A-1 should have obtained more marks.  Evidence was let  in by the prosecution to indicate that in Part II  Examination, optional subjects are there and the subjects  are Physics, Chemistry and Biology and the maximum  one can  get in one of the above optional subjects is 150 marks and  45 marks were required to  be obtained to pass. Part I  consists of English and language other than English. As  noticed by the High Court, Part II (optional subjects) each  subject consists of Paper I, Paper II and practical. The  examination for Paper I is conducted in the first year,  where A-1 appeared in 1979. Paper II is written in the  second year of the course and A-1 undisputedly appeared in  the year 1980. The total marks of 150 are split as follows:                 Paper I (Ist year)      40 marks                 Paper II (2nd year)60 marks                 Practicals 50 marks

It has not been disputed by the appellants that the marks  obtained 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

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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 before revaluation the mark  secured by A-1 was 55 and if excess 15 marks are added to  it, as the allegedly forged document shows the total comes  to 70 marks. If the total marks for a paper are 60, there  cannot be even a shadow of doubt that A-1 could not have  secured 70 marks. Similar is the case of Biology, where the  marks would be 61 against a total maximum marks of 60. Of  course in Chemistry 59 marks are shown as against maximum 60  marks. If a student gets cent percent marks in paper II in  each subject the total would come to 180, whereas on the  basis of D-4 it comes to 190. This impossible difference  would have attracted notice of A-1 and A-2. They are not  illiterate persons. As claimed by learned counsel for the  appellants, A-1 was a brilliant student and A-2 was a  reputed doctor and that they would miss this simple aspect  in mark list is not only possible, to believe, but also  would be against normal human experience. The High Court  also on the basis of evidence tendered by PW-60, came to  conclude that in the first year for Paper I the total marks  secured by A-1 was 92 and practical marks were 138. Even if  it is conceded for the sake of arguments, as submitted by  learned counsel for the appellant, that A-1 secured cent  percent marks in Paper II the total marks would have come to  92+138+180 which would make a total of 410, and not 420 as  Ext.D-4 shows.  

       Another interesting feature has been noticed by the  High Court to show how it would have been impossible for A-1  and A-2 to overlook something tainted appearing to even  naked eyes. Exh.D-4 is dated 30.6.1980. It was not disputed  before the High Court that the results were published for  the first year degree course on 30.6.1988. If the results  were published on 30.6.1980, Exh.D-4 which is purported to  have been drawn up after revaluation could not have  indicated a date seal of 30.6.1980. These factors clearly go  to show that A-1 and A-2 had sufficient knowledge that there  was forgery and they had used the document knowing it to be  forged. The pretended ignorance stood belied and self  condemned on the indisputable materials on record. The plea  of innocence as presently advanced has no substance.  

       The essential ingredients of Section 471 are (i)  fraudulent or dishonest use of document as genuine (ii)  knowledge or reasonable belief on the part of person using  the document that it is a forged one. Section 471 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

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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 document to be a forged one. Whether the  accused knew or had reason to believe the document in  question to be a forged has to be adjudicated on the basis  of materials and the finding recorded in that regard is  essentially factual.  

Under the IPC, guilt in respect of almost all the  offences is fastened either on the ground of "intention"  or "knowledge" or "reason to believe". We are now  concerned with the expressions "knowledge" and "reason to  believe". "Knowledge" is an awareness on the part of the  person concerned indicating his state of mind. "Reason to  believe" is another facet of the state of mind. "Reason to  believe" is not the same thing as "suspicion" or "doubt"  and mere seeing also cannot be equated to believing.  "Reason to believe" is a higher level of state of mine.  Likewise "knowledge" will be slightly on higher plane than  "reason to believe". A person can be supposed to know  where there is a direct appeal to his senses and a person is  presumed to have a reason to believe if he has sufficient  cause to believe the same. Section 26 IPC explains the  meaning of the words "reason to believe" thus:

       26 - "Reason to believe": A person is said to have  ’reason to believe’ a thing, if he has sufficient cause to  believe that thing but not otherwise."

In substance what it means is that a person must have  reason to believe if the circumstances are such that a  reasonable man would, by probable reasoning, conclude or  infer regarding the nature of the thing concerned. Such  circumstances need not necessarily be capable of absolute  conviction or inference; but it is sufficient if the  circumstances are such creating a cause to believe by chain  of probable reasoning leading to the conclusion or inference  about the nature of the thing. These two requirements i.e.  "knowledge" and "reason to believe" have to be deduced  from various circumstances in the case. (See Joti Parshad v.  State of Haryana (AIR 1993 SC 1167)  

       As noticed by the High Court in great detail, the  factual position leaves no manner of doubt that the accused  appellants had not only the knowledge, but also had reason  to believe that the document was a forged one before they  used it.  

       Acquittal of some of the co-accused from the charge of  conspiracy cannot really affect the accusations under  Section 471 IPC. In Madan Lal v. The State of Punjab (AIR  1967 SC 1590) two persons were tried for alleged commission  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

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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  result in miscarriage of justice. Such types of crimes  deserve as a matter of fact, deterrent punishment in the  larger interests of society.  If at all, the case calls for  severe punishment. We find no substance in the plea relating  to sentence or extending the benefits of the Probation Act.  The appeal fails and is dismissed.