Criminal Revision No.1917 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1917 of 2005 Date of decision 24.09.2010. Subhash and another ...... Petitioners. versus State of Haryana ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. R.S.Rai, Senior Advocate with Mr. Karan Pathak, Advocate for the petitioners. Ms. Shalini Attri, D.A.G. Haryana for the respondent. K.C.PURI, J. Subhash son of Balbir Singh and Bhanwar Singh son of Tara Chand have preferred this revision petition against judgment dated 30.9.2005 passed by Shri Kuldip Jain, Additional Sessions Judge, Kurukshetra vide which their appeal against the judgment dated 14.1.2004 and sentence order dated 16.1.2004 passed by Shri D.N.Bhardwaj, Judicial Magistrate Ist Class, Kurukshetra was dismissed. The revisionist were sent by the police of police Station Criminal Revision No.1917 of 2005 2 Thanesar for facing trial under Sections 419 read with Section 120-B of the Indian Penal Code ( in short - the IPC). The law was set in motion on a complaint dated 1.8.1994 sent by Shri S.K.Gupta. It is mentioned that Entrance Test for admission in LLB course of Kurukshetra University was held on 31.7.1994 in which one boy who impersonated Subhash Chauhan, who was allotted Roll No.1149 for appearing in entrance test for admission in LLB course held on 31.7.1994. The address was given by Subhash Chauhan son of Balbir Singh resident of village Amin District Kurukshetra. He was allotted the seat in Room No.10 in Law Department Centre. Some boy impersonated in his place, who was caught red handed by the supervisory staff on duty in the room concerned as the admit card did not bear the signatures of the applicant. When his signatures were obtained on the admit card, it was discovered that signatures did not tally. His photograph was also compared and was found to be of different person. On questioning, he confessed that he was appearing in place of Subhash Chauhan son of Balbir Singh. His photograph was taken by videographer process. When he was being taken to another room for recording of his statement, he ran away by climbing over the stair case and jumping over the boundary wall of the Law Faculty building and could not be caught by the security staff. Four documents i.e. admit card bearing roll No.1149 duplicate admit card form No.2528, title page of booklet No.539 and answer sheet were also appended with the complaint. From the act of the accused, an offence punishable under Section 419 read with Section 120-B of the IPC was made out. During investigation, it was revealed that Bhanwar Singh had appeared on behalf Criminal Revision No.1917 of 2005 3 of Subhash Chauhan. On completion of the investigation, challan under Section 419 read with Section 120-B of the IPC was presented against the accused. Copies of the challan were supplied to the accused free of costs and they were charge-sheeted under Section 419 read with Section 120-B of the IPC and to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined S.K.Gupta (PW-1), A.N.Sharma (PW-2), Constable Shamsher Singh (PW-3), SI Gurdial Singh (PW-4), Bhim Singh Chahal (PW-5) and Khem Chand Nirwani (PW-6) and thereafter, the evidence of the prosecution was closed by order as the prosecution failed to conclude the same after availing a number of opportunities including the last one. The accused were examined under Section 313 of the Code of Criminal Procedure wherein they alleged their false implication. In their defence, the accused also examined Rajinder Kumar as DW-1 and closed the defence evidence. The learned trial Court after appraisal of the evidence found the accused guilty under Section Section 419 read with Section 120-B of the IPC and sentenced them to undergo imprisonment and fine as narrated above. Feeling dissatisfied with the aforesaid judgment of conviction dated 14.1.2004 and the sentence order dated 16.1.2004, the revisionists preferred first appeal, which was heard by Shri Kuldip Jain, learned Additional Sessions Judge, Kurukshetra and vide judgment dated 30.9.2005, the appeal preferred by the revisionists was dismissed. Criminal Revision No.1917 of 2005 4 Still feeling dissatisfied with the judgment dated 14.1.2004 and conviction order dated 16.1.2004 and vide judgment dated 30.9.2005, vide which the appeal preferred by the petitioners was dismissed, the petitioners have preferred the present revision petition. Learned counsel for the revisionists has submitted that Controller of Examination has recommended cancellation report but that has not been accepted. The Controller of examination has categorically stated that it is on account of enmity of Subhash Chauhan with other group of students that some unknown student is appearing in his place in the Entrance Test. Subhash Chauhan had gone to Shimla on 31.7.1994 concerning his admission. So, in these circumstances, both the Courts below should have treated the complaint as withdrawn. I have carefully considered the said submission but do not find any force in that submission. Both the Courts below have dealt in this aspect of the case and reached to the conclusion by reading that Ex.DW1/A that the Controller of Examination has admitted the fact that some one else has appeared on behalf of Subhash Chauhan. There is nothing on the file that revisionist Bhanwar Singh has any enmity with Subhash Chauhan. Both the Courts below have rightly held that it is only due to the connivance of both the petitioners that Bhanwar Singh appeared in place of Subhash Chauhan. No evidence has been produced by the petitioners that Subhash Chauhan was at Shimla on the date of Entrance Test. Learned counsel for the petitioners has submitted that Shri H.K.Sharma, Invigilator has not been produced by the prosecution. The Criminal Revision No.1917 of 2005 5 authenticity of photograph and videograph is not proved on the file. So, it is contended that prosecution has failed to prove the ingredient of Section 419 read with Section 120-A of the IPC. I have carefully considered the said submission but do not find any force in that submission. It is not disputed that Subhash Chander, who was the candidate for admission had not appeared in test but some one else appeared on his behalf in the test and he was caught and videography was done. There was no reason for the staff holding examination to falsely implicate the revisionists. There is concurrent finding of both the Courts below that the prosecution has been able to prove offence punishable under Section 419 read with Section 120-B of the IPC. That finding recorded by both the Courts below remained unassailable as there is nothing on the file to disbelieve the prosecution story. Learned counsel for the revisionists has further submitted that there is material contradictions between the statements of the witnesses and on that account the prosecution story is doubtful. I have carefully considered the said submission but do not find any force in that submission. No pointed attention in respect of any material contradiction has been brought to my notice during the course of arguments by the learned counsel for the revisionists. Lastly, the learned counsel for the revisionist has submitted that in case the Court does not incline to accept the prayer for acquittal, in that case prayer has been made for reduction of sentence. It is submitted Criminal Revision No.1917 of 2005 6 that both the petitioners have already undergone incarceration for a period of two months and nine days out of the substantive sentence of one year. The occurrence relates to the year 1994. The petitioners have been facing protracted trial for the last more than 16 years and as such prayer has been made for reduction in sentence. I have carefully considered the said submission and find force in that submission. The occurrence relates to more than 16 years back. As per custody certificate, both the petitioners have undergone incarceration for a period of two months and nine days out of the substantive sentence of one year. They are on bail for the last more than five years. So, keeping in view the totality of the circumstances, the ends of justice would be met in case their sentence is reduced to the already undergone by them. However, the sentence of fine is enhanced by Rs.5000/- each more in respect of offence under Section 419 of the IPC. The said amount be paid/deposited within two months from today failing which the petitioners shall undergo the sentence awarded by the trial Court. The revision petition stands disposed of with the above modification in the sentence. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 24 , 2010 sv