IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.297 & 305 of 2006 Date of decision : May 11, 2011 Cr.A No.297/2006 Madan Gopal ….Appellant. Versus State of H.P. …Respondent. Cr.A No.305/2006 Surinder Mohan Katwal …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant(s) : Mr. Rajnish Maniktala, Advocate, in Cr.A No.297 of 2006. Mr. N.K. Thakur, Advocate, in Cr.A No.305 of 2006 For the Respondent : Mr. R.P. Singh, Assistant Advocate General. Surjit Singh, Judge(Oral) These two appeals, one by appellant Madan Gopal and the other by appellant Surinder Mohan Katwal, are directed against the same judgment, i.e. judgment dated 28th August, 2006, of learned Special Judge, Hamirpur, whereby the appellants, in both the appeals, have been convicted and sentenced of offences of criminal conspiracy, forgery and criminal misconduct, has Whether reporters of the local papers may be allowed to see the judgment? …… ..2… been assailed. So, they are being disposed of by a common judgment. 2. Appellant Surinder Mohan Katwal has been convicted of offences, under Section 13(2) of the Prevention of Corruption Act and Sections 466, 468, 471 and 120-B of the Indian Penal Code, while appellant Madan Gopal has been convicted of offences, under Sections 466, 468, 471 and 120-B of the Indian Penal Code. They have been sentenced as follows: Appellant Surinder Mohan Katwal Sr. No. Offences under which convicted. Sentence awarded 1. 466, 488, 471 & 120-B IPC Rigorous imprisonment for a period of two years and fine of `2,000/-, in default of payment of fine to undergo simple imprisonment for a further period of six months, for each of the offences. 2. 13(2) of the Prevention of Corruption Act Rigorous imprisonment for a period of three years and fine of `5,000/-, in default of payment of fine to undergo simple imprisonment for a further period of six months. Appellant Madan Gopal Sr. No. Offences under which convicted. Sentence awarded 1. 466, 488, 471 & 120-B IPC Rigorous imprisonment for a period of two years and fine of `2,000/-, in default of payment of fine to undergo simple imprisonment for a further period of six months, for each of the offences. …… ..3… 3. Case of the prosecution, as it emerges from the evidence on record, may be stated thus. Surinder Mohan Katwal, appellant in Criminal Appeal No.305 of 2006, was the Chairman of Himachal Pradesh Subordinate Service Selection Board, during the year 2002. There were some vacancies of TGT (Non-medical), for which appellant Surinder Mohan Katwal was required to recommend the names, after following the due selection process. A large number of candidates applied for the said vacant posts. One of the candidates was Madan Gopal, appellant in Criminal Appeal No.297 of 2006. Written test was held, in which appellant Madan Gopal scored 111 marks. He alongwith various other candidates, who had qualified the written test, was called for interview. His interview was held on 30th October, 2002. 4. List, indicating the score in the written test as also the interview and the total marks, was prepared. That list is Ex. PW-2/C-14. In this list, score in viva-voce, in respect of appellant Madan Gopal, was written as “12” and his rating was written as “average”, under the Remarks column. With score as “12”, in the interview or viva-voce test, appellant Madan Gopal was not going to be included in the Select List. Therefore, his score was raised to “18” and word “above” had been added by pre- fixation to word “average” already written in the column …… ..4… pertaining to Remarks. Because of these interpolations, regarding increase in the marks scored in interview and the addition of word “above” before the word “average”, appellant Madan Gopal got included in the list of selected candidates. 5. Appellant Surinder Mohan Katwal, after making the aforesaid interpolations, appears to have felt that a new sheet was required to be prepared, as the interpolations made by him were easily detectable. So, he wanted to destroy this sheet, Ex. PW-2/C-14. He asked one of his Clerks, namely Shri Surinder Kumar, who was a co-accused, in this case, before the trial Court, to rewrite sheet Ex. PW-2/C-14. Said Suridner Kumar prepared another sheet, which is Ex. PW-2/C-15, in which score of appellant Madan Gopal was shown to be “18” in the column regarding Interview and in the Remarks column words “above average” were written by appellant Surinder Mohan Katwal, in his own hand. 6. Some pseudonymous complaint was received by the Vigilance Department of the State. On the basis of that complaint, case was registered and investigation conducted. Investigation revealed that in Ex. PW-2/C-14, initially score of appellant Madan Gopal, in interview, was written as “12”, but by overwriting it was raised to “18” and word “above” had been prefixed to word “average”, which was originally written in Remarks column. …… ..5… Handwriting Expert also gave the opinion in the aforesaid terms. 7. Present appellants and Surinder Kumar, Clerk, employed in the Board, were challaned. Learned trial Court, after complying with the requirement of Section 207 of the Code of Criminal Procedure and hearing the learned Public Prosecutor and the learned defence counsel and perusing the record, charged the appellants, under various penal provisions of the Indian Penal Code and Prevention of Corruption Act, including the provisions under which the appellants have been convicted, and on their pleading not guilty proceeded to try them. 8. Prosecution examined 50 witnesses and also proved various documents to bring the charge home to the appellants. 9. Appellant Surinder Mohan Katwal did not deny that another sheet Ex. PW-2/C-15 had been got prepared, for sheet Ex. PW-2/C-14, but he pleaded that this was necessitated because of Ex. PW-2/C-14 having got torn. He denied that the score in Ex. PW-2/C-14 had been changed from “12” to “18” or that word “above” in the said sheet had been added to word “average” against the name of appellant Madan Gopal, in the Remarks column. 10. Learned trial Court did not accept the explanation offered by appellant Surinder Mohan Katwal and held him guilty of tampering with the record and …… ..6… convicted and sentenced him, as aforesaid. Because appellant Madan Gopal was the direct beneficiary of the aforesaid interpolations in the list, trial Court held him guilty of offence of criminal conspiracy, under Section 120-B, read with various offences, falling under the definition of forgery. 11. I have heard learned counsel for the appellants as also learned Assistant Advocate General and gone through the evidence. 12. Though, the prosecution examined a large number of witnesses and produced voluminous record, the relevant record is the aforesaid two mark-sheets, one in which interpolations are there and the other, which was rewritten, at the instance of appellant Surinder Mohan Katwal, on the basis of interpolations in the original list Ex. PW-2/C-14. 13. It is not in dispute that initially marks-sheet Ex. PW-2/C-14 was prepared. Explanation offered by appellant Surinder Mohan Katwal, for preparing another version of this list, which is Ex. PW-2/C-15, is that list Ex. PW-2/C-14 got torn and because of that list Ex. PW- 2/C-15 had been got prepared on the right side, in place of list Ex. PW-2/C-14. List Ex. PW-2/C-14 is, in fact, not torn. What is torn in this sheet is the top portion, on which nothing is written. Even the printed material on this sheet, on the top, indicating that the sheet was …… ..7… printed for Himachal Pradesh Subordinate Service Selection Board, Hamirpur, is intact and moreover the unwritten torn portion on the top is repaired by pasting a white paper slip on the reverse of it. 14. In any case, evidence on record clearly indicates that the score of appellant Madan Gopal, in the column regarding Interview, has been changed from “12” to “18”. Also, word “above” has been added to word “average”, initially written in Remarks column. Word “above” is written in a pen and ink different from those with which word “average” is written, in the Remarks column of Ex. PW-2/C-14. This is clear to the naked eye. Opinion of the Handwriting Expert, namely PW-39 Dr. Minakashi Mahajan, is also to the same effect. Also, the Export has opined that word “above” is in the hand of appellant Surinder Mohan Katwal. Appellant Surinder Mohan Katwal also does not deny this fact. So is the case with respect to the change of initial figure “12” into “18”, against the name of appellant Madan Gopal, in column regarding Interview, in Ex. PW-2/C-14. Digit “2” has been changed into “8” and a bare look at the figure, under this column, makes it clear that score has been changed to “18” from “12”. Opinion of Expert, PW-39 Dr. Minakashi Mahajan is also on the same basis. Appellant Surinder Mohan Katwal says that he had written the score as “18”, in the first instance, itself. That is not correct. …… ..8… 15. Learned counsel representing appellant Surinder Mohan Katwal has urged that the total of score of appellant Madan Gopal has remained unchanged, which is 129, after adding 18 marks, awarded in interview, to the score of 111 in the written test and this fact alone is enough to conclude that score of appellant Madan Gopal was recorded as 18, under the column Interview, in the beginning itself. Though, in the first blush, submission appears to be impressive, a closer scrutiny of the document suggests that total in case of all the candidates in Ex. PW-2/C-14 had been recorded subsequently, in a different pen and ink. Therefore, simply for the reason that the total of marks, which is recorded as 129, is not interpolated and that it represents the correct total, after adding 18 marks, under the column Interview, to 111 marks, under column Written Test, cannot be taken to be a ground for holding that marks for interview have not been raised from “12” to “18”. This is especially so when word “above” is also been proved to have been added to the initially written word “average”, under the Remarks column. 16. A reading of result sheets, including Ex. PW- 2/C-14, shows that candidates, who scored upto 10 marks, in interview, were being graded as “below average”. Those with marks above 10 and upto 15 were graded as “average” and the candidates with higher …… ..9… score, that is to say marks more than 15 were graded as “above average”, in the Remarks column. In the present case, the fact that appellant Madan Gopal was initially graded as “average” suggests that his score was not recorded as “18” initially, but was raised to that figure by overwriting figure “12” and then word “above” had also been prefixed to word “average”. 17. Learned counsel representing appellant Madan Gopal says that there was no evidence of appellant Madan Gopal having played any role in the increase of marks and the grading having been raised from “average” to “above average”, by interpolations, in Ex. PW-2/C-14 and, therefore, he is entitled to acquittal. Appellant Surinder Mohan Katwal made the aforesaid interpolations not to derive any benefit for himself, rather by making these interpolations, he knew that he had been exposing himself to atleast some serious allegations, if not criminal prosecution and despite that he made the interpolations and also got the sheet changed. He must have not taken this risk, without having been approached to help appellant Madan Gopal. Ultimate beneficiary of this act of appellant Surinder Mohan Katwal was appellant Madan Gopal and, therefore, it can legitimately be presumed that there was a criminal conspiracy between the two appellants and the object of …… ..10… that conspiracy was to ensure selection of appellant Madan Gopal as TGT (Non-medical). 18. In view of the abovestated position, acts of appellant Surinder Mohan Katwal amount to offences, punishable under various provisions of the Indian Penal Code, under the category of crime of forgery. The acts amount to forgery, under Section 466, 468 and 471 of the Indian Penal Code. Also, his acts amount to offence, under Section 13(2) of the Prevention of Corruption Act. As already held, there was a criminal conspiracy between the two appellants. 19. As a result of the above discussion, appeal filed by appellant Surinder Mohan Katwal, challenging his conviction, is dismissed. However, taking into account his age and the fact that criminal acts were committed by him to favour just one candidate, sentence is reduced to one year rigorous imprisonment and fine of `5,000/-, in respect of each of the offences, he has been convicted of by the trial Court. In case of default in payment of fine, he shall undergo simple imprisonment for a further period of three months. 20. As regards appellant Madan Gopal, his appeal so far as it challenges his conviction, under Section 120-B of the Indian Penal Code, is dismissed. He has not committed any offence of forgery. So, his conviction for offences, under Section 466, 468 and 471 of the Indian …… ..11… Penal Code, as also the sentences for those offences are set aside. His conviction for offence, under Section 120- B, read with Sections 466, 468, 471 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, is maintained. However, his sentence is also reduced to one year rigorous imprisonment and fine of `5,000/-, in default of payment of fine simple imprisonment for a further period of three months. 21. Appellant Surinder Mohan Katwal has been sentenced in two other cases also. In all the three cases, sentences of substantive imprisonment shall run concurrently. Both the appeals stand disposed of accordingly. May 11, 201(sd) ( Surjit Singh ), J