R. Rajesh Sunder v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE PARTHA SARATHI CHATTERJEE CRR/62/2024 Shri R.Rajesh Sunder ... Revisionist

Versus

The State ... Respondent For the Revisionist : Mr. KMB Jayapal For the State : Mr. Sumit Karmakar Heard on : 30.01.2025 Judgment on : 06.02.2025 PARTHA SARATHI CHATTERJEE, J.

1.

The legality, propriety, and correctness of the judgment and/or order dated 30th September 2024, passed by the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair, in Criminal Appeal No. 16 of 2013, as well as the judgment and/or order dated 25th September 2013, passed by the learned Judicial Magistrate, First ClassII, Port Blair, Andaman and Nicobar Islands, in G.R. Case No. 1374 of 1999, have been called in question in this revisional application. 2.

By the order dated 25th September 2013, the learned Trial Court convicted the petitioner for committing offences punishable under Sections 468/ 471 of the Indian Penal Code, 1860 (in short, IPC), and imposed the following sentences:

i) For the offence under Section 468 IPC, the petitioner was sentenced to simple imprisonment for six months and a fine of Rs. 2,000/-.

ii) For the offence under Section 471 IPC, the petitioner was sentenced to simple imprisonment for three months and a fine of Rs. 2,000/-.

iii) In case of default in payment of the fines, the petitioner was directed to undergo imprisonment for two months for each of the aforementioned offences.

iv) The substantive sentences were ordered to run concurrently, with the additional direction that the sentences for default in payment of the fines would be served after the completion of the substantive imprisonment.

3.

Mr. Jayapal, learned advocate for the petitioner, drew my attention to certain portions of the judgment passed by the learned Trial Court to argue that the judgment of conviction is perverse, as it is based on no evidence. He contended that the judgment of conviction was passed while overlooking crucial missing links, which could have been fatal to the prosecution's case. He further asserted that both the learned Trial Court and the learned Appellate Court failed to consider that the prosecution had utterly failed to prove that the petitioner had altered or forged the certificates and/or documents in question.He further argued that although the expert testified that the certificate had been tampered with, he was unable to establish that it was the petitioner who had tampered with the document.

4.

He contended that the learned Trial Court's conclusion, that since the certificate belonged to the petitioner, it must have been the petitioner who tampered with it, was based solely on mere presumption. He further argued that the learned Trial Court erred by not considering that the certificate had been submitted to the selection committee and that, for a significant period, all of the petitioner's testimonials had been in the committee's custody. 5.

He further argued that, in the present case, the motive behind the commission of the offences had not been established. The learned Courts failed to consider that, even with the actual date of birth being 24.05.1976, the petitioner would not have exceeded the upper age limit and would have been eligible for the job without any need for tampering. He argued that the learned Court overlooked the fact that no offences were committed, as the petitioner was not appointed to the post based on the allegedly falsified or altered document(s). He urged that all these issues were raised before the learned Appellate Court, but it failed to address them and erroneously upheld the learned Trial Court's decision. To invigorate his submission, he relied upon two decisions, reported at (1985) 3 SCC 658 (Sharvan Kumar vs. State of U.P.) and (1997) 6 SCC 499 (Jibrial Diwan vs. State of Maharashtra). 6.

Quite apart from that, he submitted that in the present case, the petitioner was sentenced to six (6) months of imprisonment, but the learned Courts below did not consider whether the benefits of the Probation of Offenders Act could have been extended to the petitioner. He strongly urged that this aspect should be taken into account by this Court.

7.

In response, Mr. Karmakar argued that, for filling 6 vacancies, the names of 40 candidates, including the petitioner, were sponsored by the employment exchange, but only a few candidates appeared for the trade test. As a result, the petitioner became confident that he would secure the job, which led him to resort to interpolating his testimonials and using the forged documents for his wrongful gain. He contended that the petitioner's main motive was to increase his length of service by two years. Mr. Karmakar further submitted that all the petitioner's testimonials were in his custody, and the learned Courts below had correctly invoked Section 106 of the Evidence Act, 1872, to conclude that it was within the petitioner's knowledge to explain how his own testimonials were tampered with.

8.

He argued that an unemployed youth, who sought to secure such a job by tampering with his testimonials, cannot reasonably expect the Court to show leniency. He further contended that the learned Courts below were correct in refusing to grant the benefits under the Probation of Offenders Act.

9.

Indisputably, the provisions of Sections 395 to 401 of the Code, when read together, do not suggest that the High Court's revisional power can be exercised as a second appellate power. The power of revision under Section 401 of the Code can only be exercised in exceptional cases where there is a glaring procedural defect or a manifest error of law that has led to a flagrant miscarriage of justice. It is well-established that, normally, a Court exercising revisional power cannot be invited to re-appreciate the evidence. Essentially, the power of revision does not allow re-examination of evidence unless the

decision has been made based on no evidence, resulting in a miscarriage of justice. In revision, the court is primarily concerned with procedural errors, irregularities, non-appreciation of evidence, or the wrongful application of law.

10.

However, before delving into an inquiry to determine whether the learned Trial Court's decision is perverse, or if there were any procedural errors, non-appreciation of evidence, or wrongful application or misinterpretation of the law, it would be prudent to first present the facts of the case in a concise form. 11.

In this case, the Andaman & Nicobar Fire Department initiated a selection process to fill six (6) vacancies for the post of Constable (Driver). Upon receiving a requisition, the Employment Exchange sponsored 40 eligible candidates, including the petitioner. The petitioner passed the physical endurance test and was set to appear for the trade test. However, during document scrutiny, it was discovered that while the petitioner's date of birth was recorded as 24.05.1978 on several documents, including his application, student transfer certificate, employment exchange identity card, local certificate, and driving license, the last digit of the year '8' had been tampered with. The Principal of Government Senior Secondary School, Wimberlygunj, issued a certificate confirming that, upon verification of the Admission and Withdrawal Register, it was found that his actual date of birth was 24.05.1976.

12.

Subsequently, based on an FIR lodged by the Chief Fire Officer, a case was registered under Sections 468/471 IPC, which eventually led to the filing of a charge-sheet. During the trial, the prosecution

examined 15 witnesses, including the Principal and a handwriting expert. As noted earlier, after considering the evidence, the learned Trial Court found the petitioner guilty of committing offences punishable under Sections 468/471 IPC.

13.

Thus, from the deposition of the Principal, it was clear that the petitioner's actual date of birth was 24.05.1976. However, in the application through which he offered his candidature for the post, he himself recorded his date of birth as 24.05.1978. Additionally, in his student transfer certificate, the last digit of the year was tampered with, altering the '6' to an '8'. Therefore, it was conclusively established that the certificate had been tampered with and/or forged, and that the petitioner had attached this altered certificate to his application. Hence, it was proven that the tampered document was used by the petitioner. 14.

Mr. Jayapal emphasized that neither the handwriting expert's evidence nor the testimonies of other witnesses proved that the petitioner tampered with the document. However, the learned Trial Court invoked Section 106 of the Evidence Act, 1872, to infer that it was petitioner who tampered with and used the document. It is important to note that Section 106 is an exception to Section 101 of the Evidence Act, which generally places the burden of proof on the prosecution in criminal cases. However, Section 106 does not absolve the prosecution from its burden. It applies in cases where the evidence gives rise to a reasonable inference of the accused's guilt, and unless that inference is rebutted by proving a fact within the special knowledge of the accused, the burden to prove that fact shifts to the accused.

15.

The petitioner cannot deny that all his testimonials were in his custody. If any of his testimonials is found to be tampered with, he must prove how and by whom the same was tampered. Failing to do so, a reasonable inference would be that he himself tampered with the documents. Therefore, I am of the considered view that the learned Trial Court did not err in invoking the provisions of Section 106 of the Evidence Act, 1872.

16.

Admittedly, expert evidence is opinion-based and advisory in nature. Its value depends on the facts on which it is based and is not conclusive. It has two aspects, namely, data evidence and opinion evidence. The expert forms an opinion based on the data or materials available to him. Normally, a Court relies on such evidence to reach a conclusion if it is corroborated by other evidence. In this case, the expert's opinion was sought solely to determine whether the last digit of the date of birth had been tampered with. The expert cannot be expected to identify the actual perpetrator of the offence. 17.

Section 464 IPC says that the alteration of a document either by himself or by any other person is said to make a false document and whoever makes a false document is said to commit forgery within the meaning of Section 463 IPC and it such act is done dishonestly or fraudulently by any person i.e. for acquiring wrongful gain at the cost of wrongful loss of any person, the same would be punishable under Section 468 IPC. Additionally, anyone who uses such a forged document as genuine, fraudulently or dishonestly, will be punishable under Section 471 IPC. It is important to note that, as defined in Section 24 IPC, anyone who does something with the intention of

causing wrongful gain to one person or wrongful loss to another is considered to be acting 'dishonestly'.

18.

Notably, motive is the intention hidden in the mind of the perpetrator, manifested through overt acts, and plays a crucial role in cases based on circumstantial evidence. However, it is well-established that if the other evidence presented by the prosecution is trustworthy, the lack of proof of motive is not fatal to the prosecution case. The learned Courts below observed that if the petitioner's date of birth was accepted as 24.05.1976, his length of service would increase by 2 years, which they considered a possible motive for the offences. I see no reason to disagree with this conclusion.

19.

When considering the stages of a crime, it becomes clear that normally, a motive or malicious intent develops first in the mind of the perpetrator, followed by preparation, where necessary steps are taken. Then comes the attempt, and if successful, the offence is complete. However, an attempt with overt acts is also recognized as a crime in our criminal law. In this case, the petitioner tampered with the documents and used them as genuine, but before any action could be taken based on them, the offence was detected, and further consequences were prevented. It is important to note that tampering with a document and using it as genuine are offences, regardless of whether or not the perpetrator succeeds in benefiting from the crime. 20.

It is axiomatic that the prosecution's story cannot be expected to be photographically accurate or withstand a word-for-word or inch-byinch scrutiny. It is not necessary that every possibility of doubt or suspicion must be excluded before there can be a conviction. The

prosecution is also not to meet every hypothetical question raised by the defence. It has no duty to meet every fanciful plea of the defence. Niceties must yield to realistic appraisal of evidence. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and emerging from evidence. It should be kept in mind that an unmerited acquittal does no good to the society.

21.

Therefore, based on the proven facts, the natural and probable inference of guilt drawn from them, and the accused's failure to provide an explanation for the incriminating evidence, along with the failure to discharge the burden shifted upon the accused, I am of the considered opinion that the learned Trial Court correctly convicted the petitioner for offences punishable under Sections 468/471 IPC. Furthermore, the learned Appellate Court did not misdirect itself in upholding the conviction.

22.

As mentioned earlier, the learned Trial Court sentenced the petitioner to six months of simple imprisonment and a fine of Rs. 2,000 for the offence under Section 468 IPC, while also sentencing the petitioner to three months of simple imprisonment and a fine of Rs. 2,000 for the offence punishable under Section 471IPC. The substantive sentences were directed to run concurrently. Before awarding these sentences, the learned Trial Court, citing the decisions in A.S. Krishnan v. State of Kerala, reported in 2004 CriLJ 2833 (SC), and Sharvan Kumar (supra), concluded that the convict, having forged his certificate, was not entitled to the benefits of the Probation of Offenders Act.

23.

Indisputably, the learned Trial Court took a lenient view, considering mitigating factors such as the petitioner's young age, absence of past criminal records, and the prolong duration of the trial. Admittedly, that the petitioner has no criminal history, has a permanent place of residence, and was sentenced to only six months. Therefore, it appears that he met certain criteria under the relevant provisions of the Probation of Offenders Act. However, the mere fulfilment of these criteria does not automatically entitle a convict to the benefits of the Act. Other factors must also be considered. In this case, it is important to bear in mind that an individual aspiring to hold a responsible government position must possess impeccable character and integrity. A candidate who seeks to gain an unfair advantage through forged documents should not be granted the benefit of the Probation of Offenders Act, as this could send a wrong message to society. Misplaced and undue sympathy towards the convict may ultimately cause more harm to society.

24.

In the case of Shravan Kumar (supra), an advocate's clerk forged a document and used it in a court of law. The Hon'ble Supreme Court observed that such an offence is grave in nature and, therefore, denied benefits under Section 360 of the Cr.P.C. There can be no dispute in accepting the binding precedent set by the judgment in A.S. Krishnan (supra), but it is distinguishable on the facts. 25.

However, Considering the petitioner's youth, absence of prior criminal records, and the prolonged duration of the trial, the sentence of simple imprisonment for six months, as awarded by the learned Trial Court for the offence punishable under Section 468 IPC, is reduced to

three months. The remaining part of the sentence, including the direction for setting off the period spent in police and judicial custody (a total of 25 days, as informed by Mr. Jayapal), shall remain unchanged in accordance with Section 428 Cr.P.C. The petitioner is directed to surrender before the learned Trial Court within three weeks from the date of this order to serve out the remaining part of the sentence. If the petitioner fails to do so, the learned Trial Court shall have the liberty to take appropriate action in accordance with the law. 26.

Let a copy of this order be sent to the learned Trial Court forthwith.

27.

With these observations and order, the present petitioner is, thus, disposed of , however, without any other as to the costs. (Partha Sarathi Chatterjee, J.) 28.

Later :- After pronouncement of the judgment, Mr. Jayapal prays for stay of the operation of this order. Prayer is considered and rejected.

(Partha Sarathi Chatterjee, J.)