IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 6 of 2004. Judgment reserved on : 4.11.2011. Decided on: November 23rd, 2011. _____________________________________________________ Ram Saran Dayal ……..Appellant. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Mr. Neeraj Sharma, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH, J: The appellant has challenged his conviction and sentence passed in Corruption Case No.7-S/7 of 1995 by the learned Special Judge (F), Shimla, on 17.12.2003, for the offences punishable under Sections 420, 465, 468, 471 read with Section 120-B of the Indian Penal Code and also Section 13(2) of the Prevention of Corruption Act, whereby, he was sentenced under each of the sections, as follows:- Whether reporters of the Local papers are allowed to see the judgment? - 2 - OFFENCE UNDER SECTION SENTENCE 420 IPC Rigorous Imprisonment for a period of three years and a fine of `3,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of nine months. 465 read with Section 120-B IPC Rigorous Imprisonment for a period of two years and a fine of `2,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of six months. 468 read with Section 120-B IPC Rigorous Imprisonment for a period of three years and a fine of `3,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of nine months. 471 read with Section 120-B IPC Rigorous Imprisonment for a period of two years and a fine of `2,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of six months. 13(2) of Prevention of Corruption Act. Rigorous Imprisonment for a period of one years and a fine of `1,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months. All the sentences are ordered to run concurrently and further the period of detention, if any, undergone by the appellant during the investigation, inquiry or trial was ordered to be set-off against the imprisonment imposed against him. 2. In nut-shell, the facts giving rise to the present appeal can be stated thus. The appellant referred as “the accused” hereafter, started his career - 3 - on and w.e.f. 17.1.1956 as Junior Auditor in District Cooperative Supply Department and retired as Deputy Director, Food & Supply. It is alleged that he had tampered with the date of birth in the service record in service particulars in collusion with his co- accused showing his date of birth as 27.1.1937, whereas his actual date of birth was 27.1.1933. On its basis, departmental inquiry was held. During the inquiry, following facts came to light: (i) Accused belongs to village Sakoh, Tehsil Sarkaghat, District Mandi, H.P.; (ii) He got his education in Government Lower Middle School Tira, where he studied upto 6th standard; (iii) Thereafter on 2nd January,2004 B.K., he obtained School Leaving certificate (Ext.PW5/A) wherein his date of birth was recorded as 27.1.1933; (iv) On 12.1.2004 B.K., he applied for admission in Govt. High School Sarkaghat by submitting application Ext.PW5/B alongwith School Leaving Certificate Ext.PW5/A aforesaid; (v) He got the admission in Govt. High School Sarkaghat against admission No.3158 and passed 10th standard from Punjab University in the month of March, 1951 under Roll No.25756; and (vi) The result of the accused was notified through matriculation examination gazette Notification No.51-E/3 of the Punjab University in the year - 4 - 1951 (Ext.PW9/A). Its page No.130 (Ext.PW9/C) recorded the entry of the date of birth of the accused as 27th January, 1933. 3. The prosecution alleged that the accused by hatching conspiracy mutilated the birth entry in connivance with one Santokh Singh Pathania, the then Assistant Registrar of Punjab University. Thus, on the report of inquiry FIR Ext.PW14/B was registered and the investigation started. 4. PW15 Jia Lal , Inspector of Anti Corruption Department, Shimla took up the investigation. During investigation he seized application for admission (Ext.PW5/B), School Leaving Certificate (Ext.PW5/A) and the Charge-list (Ext.PW5/C) vide seizure memo Ext.PW15/A. He also took into possession School admission and withdrawal register (Ext.PW2/A), including the applications Exts.PW4/A-1 to PW4/A- 16, noting sheets (Ext.PW15/C) and Gazette (Ext.PW9/A) consisting the entry at page-130 (Ext.PW9/C). He further took into possession copy of Gazette Ext.PW15/H and copy of Rules Ext.PW8/A, providing the procedure meant for correcting date of birth, by the University. - 5 - 5. Specimen handwriting and signatures of the accused, Santokh Singh Pathania, aforesaid and one more accused Atma Ram (who was discharged) were taken alongwith their admitted signatures and sent for its examination to PW10 Shri S.K. Saxena, Examiner of the Questioned Documents. Opinion of PW12 Dr. B.R. Sharma, director Forensic Science, was sought qua mutilation in the result Gazette with respect to date of birth of the accused. The Examiners of the Questioned Documents submitted their opinion Ext.PW10/E and Ext.PW12/A. In the opinion of the Handwriting Experts, the entry is of the date of birth at page-130 in the University Gazette Ext.PW9/A was mutilated and altered to 27.1.1937 and was in the hand and signatures of Santokh Singh Pathania whereas application seeking admission in the School Ext.PW5/B was in the handwriting of the accused and further during the investigation, it was revealed that the accused misrepresented by mentioning the wrong date as 27.1.1937 in the service record Ext.PW1/A was also wrongly certified by Atma Ram aforesaid. These facts led to the prosecution of the - 6 - accused and his accomplices. As stated above, Atma Ram accused was discharged, whereas learned trial Court charge-sheeted the accused and Santokh Singh Pathania for the offences aforesaid. 6. During the trial before the learned Special Judge, Santokh Singh Pathania died and his death certificate was placed on record. Accordingly, proceedings against said accused stood abated. 7. To prove its case, prosecution examined its witnesses. Accused was also examined under Section 313 of the Code of Criminal procedure. The circumstances which were found attendant upon him were also put, he did not dispute about passing of his matriculation examination in the year 1951 from the said School, but denied other circumstances. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of trial, accused was convicted and sentenced as aforesaid, hence this appeal. 8. Shri Neeraj Sharma, learned counsel for the accused vehemently argued that the learned trial Court arrived at a wrong conclusion from the - 7 - evidence on record. It could not be said that the service book or any other document was forged by the accused or that he was a party to the conspiracy. He further ventilated that at the time of his service, there is every possibility that matriculation certificate must have been submitted by the accused to the Department, but that was withheld by the prosecution. Therefore, the accused deserves to be given the benefit of doubt. 9. Shri A.K. Bansal, learned Additional Advocate General, duly assisted by Shri P.M. Negi, learned Deputy Advocate General however supported the impugned judgment of conviction and sentence. 10. I have reappraised the evidence adduced by the prosecution to prove the charges. The brief count is as follows. 11. PW5 Jagdish Chand stated that he remained posted as Language Teacher from 1980 to 1991 in Government Senior Secondary School Sarkaghat, District Mandi. During this period, he was also the incharge of the records pertaining to the admission/ withdrawal of Middle School department, thus he - 8 - was in possession of old record of the School admission and School leaving certificates from 6th to 8th standard. He testified that the certificate Ext.PW5/A is the School Leaving Certificate of accused Ram Saran Dayal, bearing Admission No.768 was issued from Lower Middle School Tira. The date of birth was mentioned therein as 27.1.933 and also it was so depicted in words. He identified the signatures of the Headmaster issuing the same. He further testified that the application Ext.PW5/B for school admission in “Kishan High School” Sarkaghat in 7th standard bears the date 12.1.2004 Bikrami Sambat and on the basis of said application School Leaving Certificate Ext.PW5/A, admission was issued to Ram Saran Dayal which was entered against Sl.No.3158 in Admission register and application alongwith certificate was annexed in Admission file No.22. He also stated that the admission registered is maintained on the basis of admission file and stated that Senior Secondary School Sarkaghat was earlier named as “Kishan High School”. He further stated that on his transfer, he had handed over the charge to PW16 Chander Mani, vide Charge list Ext.PW5/C - 9 - and also that the admission register/ file is maintained regularly in the course of the official business, which are checked by the concerned Principal from time to time. The entries in the admission register are also tallied from the documents contained in the admission file. These register/ file are also further checked during the course of general inspection of the School. 12. PW16 Chander Mani stated having joined the Senior Secondary School Sarkaghat in the month of September, 1991 as Language Teacher and took over the charge of admission/ withdrawal of the students of Middle Department from Jagdish Chand, Language Teacher, which included the application Ext.PW5/B and the School Leaving Certificate Ext.PW5/A pertaining to the accused. He further testified that application was moved by Ram Saran Dayal for taking admission in Sarkaghat School and it bore Sl.No.3158 in the admission register of Sarkaghat School. He stated Jagdish Chand did not hand over the admission/ withdrawal register as the same was lost during the vacation in the month of July/ August of that year, however, the police took - 10 - into possession the above documents vide memo Ext.PW15/A. His testimony was not disputed at all in cross-examination. 13. PW15 Inspector Jia Lal during investigation on 28.1.1992 had taken into possession application for admission Ext.PW5/B and School Leaving Certificate Ext.PW5/A and Charge list Ext.PW5/C from Chander Mani (PW16), the then Language Teacher to Senior Secondary School, Sarkaghat vide seizure memo Ext.PW15/A which corroborates the version of PW5 Jagdish Chand aforesaid. 14. Further PW2 Anand Parkash, Drawing Master of Government Senior Secondary School Tira admitted having handed over to the police admission/ School Leaving register Ext.PW2/A vide seizure memo Ext.PW2/B. The register aforesaid was admitted to be under his custody during the year 1992. 15. Admittedly, the accused had passed his matriculation examination from Government Senior Secondary School Sarkaghat and this fact has not been disputed by him even in his statement under Section 313 of the Code of Criminal Procedure. - 11 - Application Ext.PW5/B was taken into possession by the police from the record, whereby accused has applied on 12.1.2004 B.K. for admission in 7th standard. His signatures thereon are Q-3. Document Ext.PW5/A depicts his date of birth as 27.1.1933. Both the documents were taken into possession from School record maintained by the public servants in discharge of their duties which kept and prepared as per Rules, thus, the entries in the School Leaving Certificate Ext.PW5/B with respect to the date of birth are relevant to which the presumption of truth is attached. Therefore, both these documents show that the date of birth was recorded as 27.1.33 in the School record. Now the further evidence regarding the complicity of the accused with the crime stands established by other evidence on record, discussed hereinafter. 16. Pertinently, PW5 Jagdish Chand aforesaid also stated that on 3.7.1991, the then Principal L.R. Manchanda had demanded admission and withdrawal register from him, which was handed over to him in the presence of Harbans Singh Banyal, the then Trained Graduate Teacher (Science) and - 12 - Hem Raj Sharma, TGT (Arts) and on the same day, summer vacations started and the register remained with L.R. Manchanda, the then Principal of the School. During vacation, Shri Manchanda had expired. The School opened on 3.9.1991, but that register was not found available in the office. Every effort was made to trace out the aforesaid register, but in vain. Shri B.R.Kapoor, the then Lecturer (Physics) took over the temporary charge of Principal of the School and he was informed by him in writing about missing of the register. He also tried, to trace it out, but it could not be traced. This version is further corroborated by PW20 Hem Raj Lecturer in so many words. 17. Further the statement of PW18 Partap Chand Chandel is revealing. He stated that he was Lecturer in Senior Secondary School Sarkaghat since 1989 to 1994. In the year 1991, in the end of the month of June, he noticed the accused Ram Saran Dayal in the School. He met him behind the School building, which he was conversing with Ami Chand (TGT), who introduced the accused with him. Thereafter, he took him to the Canteen for tea. On - 13 - inquiry, the accused informed him that he had come in connection with the routine meeting with the SDM. After sometime, he saw him in the office of the Principal L.R. Manchanda and he stated that Manchanda died during the summer vacation. This fact was also not assailed in his cross-examination. Thus, the very presence of the accused in the School on the last working day in June before the summer vacation in the year 1991 makes the matter very clear and explains the purpose of the presence of the accused in the School, because on that day, the register aforesaid was handed over to Manchanda by PW5 aforesaid. 18. Thus, from the above evidence, it emerges that on the last working day of the School from starting the summer vacation, accused visited the Senior School Sarkaghat and met the then Principal L.R. Manchanda and on his representation, Shri Manchanda took into his custody the admission/ withdrawal register of Government Middle School from PW5 aforesaid, who was incharge of the same. Shri Manchanda died before opening the School, thereafter it was not traceable. The accused did not - 14 - explain as to why he had visited the School on the last date, rather his false explanation that he had come to meet SDM supplies an additional link to the prosecution and his dishonest intention is writ large. 19. Here I shall also refer to the statement of PW21 Kartar Singh. He produced the Gazette of Punjab University Ext.PW9/A to the police. In cross- examination, he admitted that the original copy of the Gazette is written by the University, but the Gazette supplied in School are also prepared in the same process and Ext.PW9/A is stated to be the same Gazette, which he had produced. He also testified that the accused Ram Saran Dayal had appeared in the matriculation examination in the Punjab University in the year 1951 under roll number aforesaid. He also supplied its true copy Ext.PW15/H. 20. PW9 Surinder Kumar, Senior Assistant Accounts Branch of Punjab University handed over the Gazette of matriculation result in the year 1991 to the police, which was taken into possession vide memo Ext.PW9/B. 21. Further as stated above the accused admitted that he passed matriculation examination - 15 - from Punjab University and there is also no cross- examination of any of the witnesses that he did not pass the matriculation examination in the year 1951. The Notification of the candidates having passed matriculation examination held in March, 1951 is Ext.PW9/A. The name of the accused finds mentioned at page-130 against Roll No.25756 of Government High School Sarkaghat. The date of birth is pointed as 27.1.1933 but in the last, figure 3 is mutilated and then on its side, it is shown as 27.1.37 under the signatures of Assistant Registrar of the Punjab University Shri S.S. Pathania at Q6 and 6. Thus, Q6, 7 and 8 were sent for examination to the Handwriting Expert. The opinion was positive. 22. According to PW8 Joginder Lal, Assistant Section Officer, Punjab University constituted “Correction in Date of Birth Committee” to see corrections. The candidate has to apply on a prescribed proforma of the University seeking correction and the case is examined by the Committee, if found genuine. The recommendation for correction is submitted to the Syndicate to do the needful. The Syndicate takes action according to - 16 - the rules and passes appropriate orders. He further states the procedure in case the correction is allowed, the direction is issued to the Registration Bench of the University for issuance of duplicate corrected certificate after canceling the original one indicating the decision thereon with its date etc and thereafter the case is sent back to the Gazette Section for the necessary correction. Copy of the Rules is Ext.PW8/A. Nothing material could be extracted with respect to the procedure in his cross- examination. His statement read with the rules aforesaid makes it clear the procedure laid down the correct entry of date of birth; which in the instant case was not resorted to; rather it was fudged in connivance with the deceased co-accused. 23. Further, PW17 Mulakh Raj remained posted as Assistant Registrar (Examination Branch) of the Punjab University from the year 1992-95. He proved his initials in the gazette at page-130 (Ex.PW9/A) and stated that S.S. Pathania retired as Assistant Registrar from Punjab University. Police had contacted the said witness in respect to the Gazette Notification Ext.PW9/A. He testified that Mark Q-6 at - 17 - page-130 thereon was that of Pathania. He also testified about the procedure meant for the correction of the date of birth in the similar tone and tenor as that of PW8 Joginder Pal. In cross- examination, he identified the initial of Pathania on the aforesaid documents (on Q-6). He stated that when he was in the Certificate Section of the University, papers used to come to him bearing his initials in the official capacity. Handwriting Expert Ext.PW10 S.K. Saxena, Government Examiner of the Questioned Documents corroborated this fact. The standard writing and signatures S-17 to S-19 of Pathania corresponded with Q-6 and Q-8 at page- 130 of the Register Ext.PW9/C and also the Gazette Ext.PW9/A, which are duly supported by the opinion Ext.PW10/E. 24. PW12 Dr. B.R. Sharma, Director and head of the Forensic Science Laboratory stated that he was asked by the police to examine Q-8 at page- 130 (Ext.PW9/A) and Ext.PW9/C to find out as to what was the date mutilated. He categorically stated that the on original document, the date was - 18 - mentioned as “27.1.1933”, virtually the figure “3” pertain to the year was altered as “7”. 25. Generally in a case of conspiracy, it is difficult to adduce direct evidence with respect to the same. The prosecution often relies upon evidence of the acts of various parties to infer that they were done in reference to their common intention and more often reduced in the circumstantial evidence. A conspiracy can be proved by direct or circumstantial evidence. The Supreme Court in Kehar Singh and others v. The State (Delhi Administration) [AIR 1988 SC 188] held that the Court must enquire whether two persons are independently pursuing the same end or that they have come together to the pursuit of unlawful object. The former does not render them conspirators, but the latter does. It is however essential that the offence of conspiracy required some kind of manifestation of agreement. The express agreement, however, need not be proved nor actual meeting of two persons is necessary, nor it is necessary to prove the actual words of communication. The evidence as to transmission of - 19 - thoughts sharing the unlawful design may be sufficient. 26. Applying the aforesaid well settled law in the case in hand, it stands fully established that accused Ram Saran Dayal had hatched a conspiracy in connivance with his deceased co- accused and there was unwholly alliance between them for altering the date of birth in the Gazette Ext.PW9/A, and impugned entry in Ext.PW9/C. No other person than the appellant would have been benefited. Thus, the net result of the entire discussion is that the accused was aware of his date of birth to be 27.1.1933 at the time when under his own hand and signature he filled in the service book Ext.PW1/A indicating the wrong date of birth as 27.1.1937 instead of 27.1.33 to get benefit for himself. To support the false date of birth, there has been manipulation in the various records referred above as stated heretofore, in connivance with Santokh Singh Pathania (deceased). 27. For the reasons aforesaid, on reappraisal of evidence I do not find any fault/ error in the impugned judgment of conviction and sentence. - 20 - Learned trial Court had rightly picked up the circumstances, discussed in the light of the settled law and came to the just and apt conclusion with respect to the guilt of the accused, for the offences aforesaid. Therefore, the conviction and sentence of the appellant requires no interference. 28. The appeal is without any merit, hence dismissed. The appellant is hereby directed to be present before the learned trial Court on December 21, 2011 to serve out the sentence passed in this case by the learned trial Court, failing which the learned trial Court shall take appropriate steps to apprehend the appellant and commit him to prison. 29. Send down the records. (Surinder Singh), Judge. November 23,2011. (Pds)