Criminal Revision No.1395 of 2005(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.1395 of 2005(O&M) Dharam Pal ... Petitioner VERSUS State of U.T. Chandigarh ... Respondent and Criminal Revision No.1396 of 2005(O&M) Sarabjit Singh and another ... Petitioners VERSUS State of U.T. Chandigarh ... Respondent Decided on : October 27, 2010 CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.APS Deol, Senior Advocate assisted by Mr.Vishal Rattan Lamba, Advocate for the petitioner (in Criminal Revision No.1395 of 2005) Mr.S.P.Laler, Advocate for the petitioners (in Criminal Revision No.1396 of 2005) Mr.Rajiv Sharma, Advocate for the Union Territory Chandigarh. A.N.JINDAL, J.- This judgment shall dispose of two petitions; CRR No.1395 of 2005 filed by Dharam Pal and CRR No.1396 of 2005 filed by Sarabjit Singh and Daljit Kumar as both have arisen out of the same judgment. Criminal Revision No.1395 of 2005(O&M) [2] The present case involves a big scandal with regard to issuance of false matriculation certificates, which was unearthed by the police of Police Station Central, Chandigarh, whereby, a charge report was submitted against eight accused, out of whom, Rakesh Kumar, Suresh Kumar and Balwan Singh were declared as proclaimed offenders and the remaining five were tried for the offences under Sections 420, 465, 471 and 120-B of the Indian Penal Code 1860 and vide judgment dated 28.2.2000, accused Dharam Pal, Sarabjit Singh, Shamsher Singh, Arvind Kumar and Daljit Kumar were convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.300/-, each, under Section 474 IPC and to undergo further rigorous imprisonment for three months and to pay fine of Rs.200/-, each, under Section 120-B IPC. However, in the respective appeals by the accused, the sentence of four accused, except Shamsher Singh was reduced to nine months under Section 474 IPC, while the appeal of accused Shamsher Singh was dismissed in toto. Factual matrix of the case is that on 27.11.1986, Inspector Surjit Singh, Sub-Inspector Amarjit Singh and other police officials were present near DAV College Sector-10, Chandigrh in Government vehicle, then they received a secret information that Sarabjit Singh – accused r/o Mandi Dabwali was issuing forged certificates of the Board of School Education Haryana to many students, out of whom Rakesh Kumar had taken admission in class XI in DAV College, Sector-10, Chandigarh on the basis of that certificate. Similarly, accused Dharam Pal was studying in Swami Vivekanand College by taking admission on the basis of a forged certificate as issued by Sarabjit Singh. On the basis of this information, a Criminal Revision No.1395 of 2005(O&M) [3] ruqa was sent to the Police Station. Consequently, case was registered against the accused. On 27.11.1986, the police party comprising of the aforesaid officials raided House No.39, Sector-15-A, Chandigarh and found Rakesh Kumar (since proclaimed offender) there. He was arrested. On 1.12.1986, Dharam Pal was arrested and from his custody a matriculation certificate was recovered. The accused Sarabjit Singh was also arrested on the same day and a matriculation certificate, purported to have been issued to Baje Singh was recovered from his custody. On 2.12.1986, accused Suresh Kumar (since proclaimed offender) was arrested at the instance of Sarabjit Singh and twenty blank matriculation certificates of Board of School Education, Haryana were recovered from him. On 3.12.1986, the accused Shamsher Singh was arrested from Jind and 32 certificates of Board of School Education Haryana were recovered from him. On the same day, accused Balwan Singh was arrested from village Kachrana, Jind and a block used for printing the certificates was recovered from him. The block as well as the certificates were sealed. Accused Arvind Kumar was arrested from village Shamli, district Muzaffarnagar (UP) and from his possession, 240 blank certificates, block and a printing machine were recovered. All the blocks and certificates, so recovered, were taken into possession and were sent to Forensic Science Laboratory, Chandigarh in order to know as to whether the certificates had been printed with the help of blocks recovered during investigation. On completion of the investigation, the accused were challaned and charged under Sections 420, 467, 468, 471 and 120-B IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Criminal Revision No.1395 of 2005(O&M) [4] Inspector Tirath Singh (PW1), Jasbir Singh (PW2), Ved Parkash Sharma (PW3), Mohan Lal (PW4), DSP Surjit Singh (PW5), Swaran Singh Oberoi (PW6), R.C.Gupta (PW7), ASI Kishore Chand (PW8), ASI Sohan Lal (PW9), Sub-Inspector Rajinder Pal (PW10) and K.S.Arya (PW11). The case relates to the forgery of the matriculation certificates and it was registered on the basis of a secret information. The prosecution in order to prove that the certificates Ex.P1 to P11 were not issued by the Board of School Education, Haryana has examined Swaran Singh Oberoi (PW6) Superintendent from the office of the Board, who stated that as per the gazette prepared by the Board for year 1984, the certificates Ex.P1 and P2 bearing Roll No.576256 and 981296 were never issued by the Board. As regards certificate Ex.P3 bearing Roll No.434218 also, he has confirmed that no such certificate was issued to any candidate in the year 1984 by the Board. He has also authenticated this fact vide letter Ex.PW6/A that certificates Ex.P1 to P3 were forged to the knowledge of the accused. As regards the recovery of the forged certificates, DSP Surjit Singh (PW5) has proved that certificate Ex.P1 was recovered from the possession of Rakesh Kumar vide recovery memo Ex.PW2/A. Similarly, ASI Kishore Chand (PW8) has proved the recovery of certificates Ex.P2, P3 and P8 vide recovery memos Ex.PW5/F and PW5/G. Thus, it is duly proved that certificate Ex.P2 was recovered from accused Dharam Pal. As regards the certificates Ex.P3 and P8, it is duly proved that these certificates were taken into possession from accused Sarabjit Singh. ASI Kishore Chand (PW8) besides proving the recovery of certificate Ex.P2 from Dharam Pal, certificate Ex.P8 from Sarabjit Singh, has also proved the Criminal Revision No.1395 of 2005(O&M) [5] recovery memo Ex.PW5/G in respect of these certificates. It has also been proved from the evidence that 32 certificates were recovered from accused Shamsher Singh; one block of Board of School Education Haryana was recovered from accused Arvind Kumar. DSP Surjit Singh (PW5) has also deposed that the accused Sarabjit Singh supplied the forged and fabricated certificates to other accused. However, the prosecution has not led any evidence to connect accused Daljit Kumar with the crime. Even on minute scrutiny of the evidence, nothing incriminating is found against him. Thus, the courts below appear to have made incorrect observation naming all the five accused, including Daljit Kumar, to have hatched a criminal conspiracy. The record reveals that accused Dharam Pal and Arvind Kumar were issued forged certificates by Shamsher Singh and Sarabjit Singh, on the basis of which with the intention that they could use the same knowing fully well that the same were forged one. Dharam Pal and Arvind Kumar also knew fully well that the said certificates are forged documents. The conclusion reached by both the courts below that though the prosecution has failed to prove the offence under Section 420, 467 and 468 IPC, yet all the accused except Daljit Kumar could be convicted for the offences under Section 474 read with Section 120-B IPC as they were found in possession of the forged documents with the intention to use them fraudulently and dishonestly. However, in the absence of any evidence with respect to the role of Daljit Kumar in the crime, the conviction and sentence recorded against him is liable to be set aside. The contention raised by the counsel for other two accused that since they were not charged for the offence under Section 474 read with Criminal Revision No.1395 of 2005(O&M) [6] Section 120-B IPC, therefore, they could not be convicted for the same in the absence of any such charge is without any merit. Having pondered over this contention, I reiterate that accused Rakesh Kumar and Dharam Pal were found in possession of the forged certificates since they had not qualified for clearing the matriculation examination and they had not in fact cleared the matriculation examination, therefore, it was their duty to explain as to how they came in possession of the said certificates. Though, the prosecution was negligent in establishing that the accused had actually used those certificates for getting benefit by deceitful means and in order to cheat the institution of education, yet the possession of the certificate would itself indicate that the intentions of the accused were to use the same dishonestly and fraudulently considering them as a genuine. Lastly, Shamsher Singh and Sarbjit Singh – accused were found in possession of large number of forged certificates and blank forms, which also indicate that they had dishonest and fradulent intention. The implied inference from the possession of the blank certificates, unaccompanied by any plausible explanation would be that they had kept such blank certificates for dishonest and fradulent use, may be for selling the same to the needy persons by forging the same. Though, it may not have been proved as to who was the forger, but possession of the forged documents stands established. Section 222 of the CrPC permits under certain circumstances conviction under a charge different from the original charge, provided the accused was not, in any way prejudiced. Before invoking the said provision, this court must make sure that the ingredients of the offence, Criminal Revision No.1395 of 2005(O&M) [7] under which the court proposes to convict an accused of an offence without any charge form part of some material ingredients of any other charge already framed. The principle is that the graver charge gives notice to the accused of all the circumstances going to constitute the minor one of which he may be convicted. If the ingredients that constitute the offence under which the court proposes to convict an accused do not constitute some of the main ingredients of the offence for which the accused already stood charged, the provision in Section 222 CrPC cannot be invoked. In the instant case, the main ingredients of the charge framed are similar to that of the charge for which the accused have been convicted. Though, the accused could not be indicted under Section 420, 467 and 471 IPC for want of evidence, yet all could be convicted for this minor charge as they were found in possession of such incriminating documents, ,which could only be issued by a competent authority and not by an ordinary person and the accused have failed to establish if the said certificates, which were recovered from the accused, were issued to them by the competent Authority. Again at the cost of repitition, Section 222 of the Code of Criminal Procedure, 1973 entitles a Court to convict a person for an offence, which is minor in comparison to one for which he is tried. The golden thread running through the conviction for a different charge is that the accused must not be prejudiced for convicting for the offence, for which he was not charged. In the instant case, the accused were charged for various offences relating to the forgery of those documents. Ultimately, from the Criminal Revision No.1395 of 2005(O&M) [8] facts and circumstances, the charge under Section 474 IPC, which also relates to the forgery of the documents stood proved. Therefore, the accused cannot be said to have no notice of such accusations and, thus, cannot be said to be prejudiced. It was observed in case Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand), 2006 (4) RCR (crl.) SC 603 as under:- “26. A three-Judge Bench of this Court in Shamnsaheb M.Multtani v. State of Karnataka 2001(1) RCR(crl.) 617 had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paras 16, 17 and 18 of the judgment, which read as under: (SCC P.584) “16. What is meant by `a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence Criminal Revision No.1395 of 2005(O&M) [9] vis-a-vis the other offence. 17. The composition of the offence under Section 304- B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the word `cruelty' is explained as including, inter alia, `harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.' 18. So when a person is charged with an offence under Section 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, the situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted Criminal Revision No.1395 of 2005(O&M) [10] in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?” The crux of the matter is that when main ingredients of the two offences are similar, in that situation, in case major charge is not proved, the accused could be convicted for minor charge, though he has not been charged for that offence. Thus, the judgment passed by the first appellate court cannot be condemned only for the reason that the accused have been convicted and sentenced for minor offence when acquitted for major offences. Faced with the above situation, the counsel for accused has made endeavour to submit for extending the benefit of the Probation of Offenders Act to the accused keeping in view that the incident relates to the year 1986 and the accused have been suffering the protracted proceedings since then. On consideration of all the facts and circumstances of the case, only accused Dharam Pal, who is a student and a young boy at the threshold of his career is deemed fit to get the benefit of the Probation of Offenders Act. This Court is informed that he appeared in the matriculation examination and after clearing the same got issued regular matriculation certificate from the Board, therefore, it would not be in the fitness of things to spoil his career at this stage. He is also not a habitual offender. For the aforesaid reasons, CRR No.1396 of 2005 is partly accepted. Accused Daljit Kumar is acquitted of the charges framed against Criminal Revision No.1395 of 2005(O&M) [11] him, while the conviction and sentence of Sarabjit Singh is upheld. CRR No.1395 of 2005 is dismissed with the modification in the sentence to the extent that accused Dharam Pal is extended the benefit of probation under Section 4(1) of the Probation of Offenders Act, 1958 on his executing bond in the sum of Rs.5000/- with one surety, in the like amount to the satisfaction of the Trial Court for a period of one year within which period he will continue to be of good behaviour and keep peace and in case of breach of conditions of the bonds, he will be ready to serve the sentence as and when called for. However, this order of probation would not affect his future career prospects. October 27, 2010 ( A.N.JINDAL ) `gian' JUDGE