IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 598 of 2000. Judgment reserved on: 29.2.2008 Date of decision: 1.3.2008 State of H.P. …….Appellant Vs. Parveen Kumar ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. A.K. Bansal, Additional Advocate General. For the Respondent : Mr. Inder Bhardwaj, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgment dated 17.2.2000 passed by learned Judicial Magistrate Ist Class, Court No.2, Mandi, acquitting the respondent under Section 7 of the Himachal Pradesh Prevention of Malpractices at University, Board or other specified Examinations Act, 1984 ( for short Act). 2. The brief facts of the case are that the respondent was sitting in B.A. Part-II final examination under roll No.118987 on 19.4.1995 at Govt. College, Mandi. At about 2.30 PM on 19.4.1995 the examination centre where the respondent was appearing was checked by flying squad of the university consisting of Rajender Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Singh Chauhan, H.C. Sharma and Madan Lal Korla etc. On checking, it was found that the respondent was in possession of supplementary answer book containing hand written objectionable material which was smuggled into the examination hall for the purpose of copying. The respondent on being caught by the flying squad ran away from the examination hall leaving behind his answer book and supplementary answer book. The matter was reported to the Police Station, Sadar Mandi by the Centre Superintendent vide application dated 19.4.1995 and on that basis FIR No.173/95 came to be registered at Police Station, Sadar Mandi under Section 7 of the Act. After completion of the investigation challan was filed, notice of accusation was put to the respondent under Section 7 of the Act, to which he pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statement of respondent was recorded under Section 313 Cr.P.C. and he pleaded his innocence. The learned trial Magistrate acquitted the respondent as noticed above, hence this appeal 3. I have heard Mr. A.K. Bansal, learned Addl. Advocate General and Mr. Inder Bhardwaj, learned counsel for the respondent. The learned Addl. Advocate General has submitted that learned trial Magistrate has not properly appreciated the material on record. The prosecution has proved the case against the respondent beyond reasonable doubt. The learned trial Magistrate has not drawn proper inference from the evidence and has erred in acquitting the respondent. Per contra learned counsel appearing on behalf of the …3… respondent has submitted that no fault can be found with the judgment of acquittal recorded by learned trial Magistrate. The prosecution has failed to establish the case against the respondent. On the basis of allegations made by the prosecution no case under Section 7 of the Act is made out against the respondent. 4. In order to appreciate the respective contentions of the learned counsel appearing for the parties, it is necessary to refer the prosecution evidence. PW-1 O.P. Kaushik, Principal Govt. College, Karsog has stated that on 19.4.1995 he was Centre Superintendent at Mandi college. Flying squad from H.P. University came, Professor R.S. Chauhan searched the accused who was writing B.A. Part-II examination, a supplementary answer sheet was recovered from his possession which was containing incriminatory material which could help in solving the question paper. The accused ran away from the examination centre. Ex.P-1 is the answer book and Ex.P-2 is the supplementary answer book. 5. PW-2 Dharam Pal, Lecturer Physical Education Degree college, Mandi has stated that he was on duty in the examination centre on 19.4.1995. Flying squad came and caught one boy, he came to know his name later on as Parveen. In cross-examination he has stated that he can not identify the boy. PW-3 Dharampal Kapoor, Lecturer Hindi Degree College, Mandi has stated that he was on duty on 19.4.1995 in afternoon session as invigilator for B.A. Part-II paper Sociology. The Flying Squad of the University consisting of Dr. S.C. Sharma, Professor Guleria and Mr. Chauhan came. Later on he …4… came to know that flying squad caught respondent present in the Court. He has not stated what was recovered from the respondent. PW-4 Prem Singh S.I. has proved application Ex.PA on the basis of which he recorded FIR Ex.PB. PW-5 Gopal Guleria has produced the record to the police. He did not support the prosecution and was cross-examined. PW-6 Ganshyam, Sr. Assistant office of the DEO, Mandi has stated that during investigation some papers were taken by the police. He did not support the prosecution and was declared hostile. PW-7 Rajender Singh Chauhan Professor, H.P. University, Shimla has stated in the year 1995 his duty was in the flying squad of the university for checking examination centres at Kangra, Mandi. He along with Professor H.C. Sharma, Madan Korla etc. raided the college hall at Mandi. He and Dr. H.C. Sharma came in the main hall. Dr. Korla went in the other room. During this a boy who was appearing under roll No.118987 for B.A. 2nd year was searched, the boy Parveen kumar was found having supplementary answer sheet Ex.P-2. They took the boy to the Superintendent but the accused after leaving the room ran away. They could not overpower the accused. They handed over that answer sheet to Superintendent as well as another answer sheet Ex.P-1. The question paper is Ex.PC. In cross-examination he has stated that he does not know Parveen Kumar personally nor he can recognize him in the Court. PW-8 Mast Ram Saini, Lecturer Govt. Degree College, Mandi has stated that on 19.4.1995 he was on duty in the examination centre, Mandi. The flying squad of the university all of a sudden came and …5… caught one boy whom he can not recognize. He was declared hostile and was cross examined. PW-9 ASI Mastana Ram is the Investigating Officer 6. PW-1 O.P. Kaushik has not identified the respondent in the Court at the time of making his statement. PW-2 Dharam Pal has also stated that he cannot identify the respondent. PW-3 Dharampal Kapoor has stated that he came to know later on that flying squad caught respondent. It means he is also not an eye witness to the incident. PW-4 is a formal witness. PW-5 and PW-6 have not supported the prosecution and they were declared hostile. PW-7 Rajender Singh has stated that he does not know the respondent personally nor he can identify the respondent. PW-8 Mast Ram Saini has not supported the prosecution and was declared hostile. PW-9 ASI Mastana Ram is the Investigating Officer. The respondent in his statement under Section 313 Cr.P.C. has submitted that nothing was recovered from him on 19.4.1995 when he was appearing for BA Part-II examination under roll No.118987. Therefore, the identity of the respondent has not been established. In addition to this Section 7 of the Act is as follows:- “Whoever is found in or within the periphery of 500 metres of an examination hall by the Invigilator or any other person appointed to supervise the conduct of the examination, copying answers to the question paper set at a examination, from any book, notes or answer paper of other candidate, or appearing at the examination for any other candidate or using any other unfair means, shall , on conviction, be punished with imprisonment for a …6… term which may extend to three months, or with fine which may extend to five hundred rupees, or with both”. 7. The perusal of Section 7 would show that, copying of answers of question paper set at an examination, from any book, notes or answer paper of other candidate, or appearing at the examination for any other candidate or using any other unfair means has been made punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. The offence under Section 7 is made out only if the ingredients of Section 7 are established. The prosecution case is of recovery of supplementary answer book Ex.P-2 from respondent. It is not the prosecution case that respondent was copying from Ex.P-2 for answering the question paper. Except for bald statement of PW-1 O.P. Kaushik, that supplementary answer sheet could help in solving the paper, it has not been proved on record that in what manner the supplementary answer book Ex.P-2 was helpful to respondent for solving the question paper. It has not been pointed out which material from supplementary answer book Ex.P-2 was helpful for solving the question paper Ex.PC. In absence of proof that the offending material was helpful in solving the question paper it cannot be said that respondent has committed offence under Section 7 of the Act. The expression ‘unfair means’ has not been defined in the Act. It has not been proved beyond reasonable doubt that the material recovered from respondent was useful in the examination. This is in addition to the fact that identity of the respondent has not …7… been established. The learned trial Magistrate has properly appreciated the material on record. The inference drawn by him cannot be said to be wrong, no case for interference has been made out. Resultantly, the appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge March 1, 2008 (sks)