Ashok Jaolekar vs The State of Maharashtra

R.C. Chavan, J.—These appeals are directed against appellants'' conviction for various offences and sentences imposed upon them for those offences by the learned 2nd Additional Chief Judicial Magistrate, Nagpur, in Criminal Case No. 396 of 2002.

The facts which led to prosecution and conviction of the appellants are as under:

In the year 1999, a scandal of bogus degrees, mark-sheets and unwarranted increase of marks in revaluation at various examinations conducted by the Nagpur University surfaced. The University authorities reported the matter to police, by a number of FIRs on which some offences were registered. In course of investigation of those matters many more matters surfaced and they too were investigated. Initially by P.I. Sayyed and after him by P.S.I. Anil Lokhande. Initially a chargesheet has been filed in respect of irregularities and after separate trials were ordered, separate supplementary charge sheets for various offences came to be filed against several offenders.

Appellant Parag Fadnavis in Criminal Appeal No. 149 of 2008, original accused No. 1 before the trial Court, was a student of B.E. Ist Year in Yashwantrao Chavan College of Engineering, Nagpur. He had appeared for Bachelor of Engineering, Part-I examination in Winter-1996. His Roll Number was 2479. He has scored 17 and 30 marks respectively, in subjects Maths-I, Maths-II. The appellant applied for revaluation on 28.01.1997.

Procedure for conduct of examinations is prescribed in Ordinance No. 9 issued by the Nagpur University. It provides, among other things, from Clause 57 onwards, for appointment of tabulators, scrutineers, etc., and their respective roles. This ordinance did not provide for revaluation, which facility was introduced by Ordinance No. 159. Ordinance No. 159 providing for revaluation merely gives sketchy procedure about revaluation. It does not lay down the procedure to be followed internally by the University administration. Therefore, it may be taken that the provisions of Ordinance No. 9 would apply mutatis mutandis to revaluation as well.

The practice, which was followed by the University officials for such revaluation has been deposed to by PW 1 Narayan Ghatole, an employee of the University in the Revaluation Section. According to him, after a candidate applied for revaluation after paying the prescribed fee, an entry used to be taken in the Revaluation Tabulation Register (hereinafter referred to as the RTR. for the sake or brevity). The RTR contains the following columns:

The Clerks in the Revaluation Section used to fill up column Nos. (I) to (IV) and (VI) to (VIII) on the basis of the material which they already had. Requisition for relevant answer books used to be sent to the godown. After the answer books were received, the portion of the answer book containing roll number of the candidate and marks obtained by him in the original valuation used to be masked. A code number used to be printed on the answer book by using a numbering machine.

The answer books of students in the Engineering faculty used to be taken by a special messenger to the examiners appointed for the purpose of revaluation. Normally, the answer book used to be taken to a College in another University, where the Principal or the Head of the Department in the College concerned, used to assign the task of revaluation to the examiners in the said College or University. They were not supposed to write the marks on the answer sheets itself. These examiners were provided with .revaluation sheets.. These revaluation sheets contained columns of code number and marks assigned to each answer, with a column of total at the end. The revaluation sheet also provided for recording the subject of the question paper and its date. The revaluation sheet was to be signed by the revaluator. One revaluation sheet ordinarily contained 9 to 10 rows so that information in respect of 9 to 10 answer sheets revalued would be filled in. Since the examiners, who revalued the papers, had no access to the roll number, they would mention the code number and then fill up the marks allotted by them for each answer. Since the revaluation of each answer book used to be done by two revaluators, there used to be two such revaluation sheets (for the sake of easy reference, they would be hereinafter referred to as .R1. and .R2. sheets corresponding to revaluation done by the first and the second revaluator). The messenger, who took the papers for revaluation, used to bring back the answer books along with revaluation sheets to the University.

After receipt of answer books and revaluation sheets in the Revaluation Section of the University, the University employees used to de-mask the roll number on the answer sheet and used to fill up column No. (V) in the RTR by recording the relevant code number against the name of the student, his roll number and subject of the paper sent for revaluation.

After this was done by the University employees, the RTR along with R1 and R2 sheets used to be handed over to scrutineers. The scrutineers were select Professors of affiliated Colleges, who were assigned the task of entering marks obtained upon revaluation. The scrutineers used to work in pairs. Two Professors would be working as a team for entering marks in respect of one or more students. Column Nos. (IX) and (X) for marks assigned by the two examiners used to be filled in by the scrutineers. They then calculated average marks and filled them up in column No. (XI). In column No. (XII), the scrutineers would mention whether there was a change or no change or an adverse change. In column No. (XIII), they were supposed to mention the percentage of increase or decrease and were expected to sign the entry in column No. (XIV). If there was a change of 5% or more over the original marks then the result of the candidate would change.

It is not in dispute that there is no authentic document to describe this procedure or to discern as to what was the standard procedure to be followed. However, according to P.W. 1 Shri Ghatole, after the RTR was filled up, a notification was expected to be issued about change in the result upon revaluation. After this notification, necessary changes were made in the Final Tabulation Register (for short, hereinafter referred to as .the FTR.). The FTR in respect of an examination conducted by the University used to be drawn up after evaluation of answer books at the examination was over, and the result used to be declared on the basis of the FTR. The FTR is in the form of a computer printout since the record was computerised. Thereafter the students used to apply for revaluation. After revaluation, change, if any, in the marks used to be noted in hand in the FTR by the same set of scrutineers.

Appellant Ashok Jaolekar and deceased Shyamrao Shinde were the pairs of scrutineers, who were entrusted with the task of entering marks of accused No. 1 Parag Fadnavis in the RTR as well as the FTR. Accused No. 3 Yadav Kohchade was the Assistant Registrar, Incharge of Revaluation Section at the relevant time. Original Accused No. 4 Dinkar Ingle, was an employee of the University, who has been acquitted, was acting as a middle man to connect the students with appellant Yadav Kohchade, Assistant Registrar, incharge of Revaluation.

The scrutiners were shown to have filled in the following marks in RTR against various subjects for which Parag Fadnavis had applied for revaluation.

It is the case of the prosecution that all the appellants along with acquitted accused Dinkar Ingle and deceased Shyamrao Shinde conspired to get marks of Parag Fadnavis increased, so that he cleared the subjects of Maths-I and Maths-II. It is the prosecution case that the marks initially filled up were scored out and result .no change. was altered to .change. by deceased scrutineer Shyamrao Shinde. In course of investigation the Investigating Officer secured necessary record from the University, recorded statements of witnesses, collected specimen handwriting of the participants in the conspiracy, sent specimen writing as well as disputed and admitted handwriting to the Examiner of State C.I.D. , Pune and after getting reports from the Expert and finding that the accused persons were involved in the aforementioned offences, charge sheeted them.

Learned 2nd Additional Chief Judicial Magistrate, Nagpur charged three appellants along with accused Dinkar Ingle of the offences punishable under Sections 420, 468, 409, 471 read with Section 109 and 34 of the Penal Code. Since the accused pleaded not guilty to the said charge they were put on trial, at which the prosecution examined in all seven witnesses. They are : P.W. 1 Narayan Ghatole an employee working in Revaluation Section, P.W. 2 Dharmaraj Tidke, Principal Yashwantrao Chavan College of Engineering, where Parag Fadnavis was studying, the revaluers P.W. 3 Kashiram Ghuge, P.W. 4 Jiwandas Joshi, Lecturers, Government Engineering College, Aurangabad, P.W. 5 Dr. Hardaha and P.W. 6 Dr. Rameshprasad Pathak, Reader, Government Engineering College, Raipur, P.W. 7 API Laxman Khobragade, who registered offence, P.W. 8 Purushottam Gavai, Additional Superintendent of Police, A.C.B., Nagpur, whose evidence is irrelevant for the present case and P.W. 9 P.S.I. Anil Lokhande, who conducted the investigation.

After considering prosecution evidence, in the light of defence raised, the learned Second Additional Chief Judicial Magistrate held the appellants guilty of offences punishable under Sections 420, 468, 471, 409 read with Sections 109 and 34 as well as Section 120-B of the Penal Code.

He sentenced them to suffer:

a) rigorous imprisonment for four years and fine of Rs. Twenty Thousand and in default rigorous imprisonment for two months for the offence punishable u/s 420 read with Section 34 and 109 of the Penal Code.

b) Rigorous imprisonment for three years and fine of Rs. Fifteen thousand and in default to suffer rigorous imprisonment for one month for the offence punishable u/s 468 read with Section 34 and 109 of the Penal Code,

c) Rigorous imprisonment for one year and fine of Rs. Five thousand and in default rigorous imprisonment for one month for the offence punishable u/s 471 read with Section 34 and 109 of the Penal Code of the Penal Code and

d) Rigorous imprisonment for six months and fine of Rs. Two thousand and in default rigorous imprisonment for fifteen days for the offence punishable u/s 120-B of the Penal Code.

Appellants Ashok Jaolekar and Yadav Kohchade were also convicted for the offence punishable u/s 409 read with Section 34 of the Penal Code and sentenced to suffer rigorous imprisonment for four years and fine of Rs. Twenty Thousand or in default to suffer rigorous imprisonment for two months.

He directed that the sentences shall run consecutively. The learned Magistrate had also directed that mark sheets of B. E. Ist year to Final Year examination of appellant Parag Fadnavis as well as his degree certificate of B. E. course awarded to Parag Fadnavis, issued by Nagpur University shall be confiscated after the appeal period is over. He had acquitted accused Dinkar Vyankat Ingle of all the offences for which he was charged. As already pointed out, original accused No. 3 Shyamrao Shinde had expired before the charge could be framed. Aggrieved by their conviction and sentence the appellants have preferred this appeal.

I have heard Advocate Shri A.K. Choube for appellant Parag Fadnavis, Advocate Shri P.P. Kotwal for appellant Ashok Jaolekar and Advocate Shri M.B. Naidu, learned Counsel for appellant Yadav Kohchade, and learned Additional Public Prosecutor Shri S.S. Doifode for the State. With the help of the learned Counsel for the parties, I have gone through the record.

The learned Counsel for appellant Yadav Kohchade submitted that a false case has been filed on the basis of fabricated evidence, which ought to have been rejected at the threshold. He pointed out that there is absolutely no evidence about any deliberations, meetings or conspiracy amongst the appellants. He submitted that it was the prosecution case that the students used to be contacted by appellant Yadav Kohchade through acquitted accused Dinkar Ingle. Since this link in the chain of communication has itself been broken, there would be no warrant to conclude that the conspiracy was proved. The learned Additional Public Prosecutor contested this proposition by relying on the judgment of the Supreme Court in Aniceto Lobo and Others Vs. State (Goa, Daman and Diu), . While considering the involvement of accused in offences punishable under Sections 467, 468, 420 and 120-B of the Penal Code, arising out of encashment of a forged bank draft, the Court held that acquittal of one of the accused would be of no consequence on the complicity of the other accused persons, all of whom were allegedly involved in the conspiracy.

The learned Additional Public Prosecutor submitted that conspiracy by its very nature is secret affair and it may be difficult to get direct evidence about such conspiracy. The evidence of conspiracy would have to be inferentially gathered from the facts established. It cannot be disputed that Parag Fadnavis had failed in the examination in two subjects Maths-I and Maths-II. His papers had been sent for revaluation by giving Code Numbers 2646 and 3943. P.W. 4 Prof. Ghuge stated that he had examined paper bearing Code No. 3943 of Maths-II, 1st year B.E., Winter-1996, which was received from Nagpur University and he had allotted 31 marks to the candidate as per revaluation sheet which he proved at Exh.62. P.W. 4 Prof. Jiwandas Joshi had also examined some paper bearing Code No. 3943 for which he had allotted 32 marks. He stated that he recorded those marks in R-2 sheet at Exh.64. Thus, two professors state that for Maths-II paper marks allotted were 31 and 32 respectively. RTR sheet shows that 31 marks were changed to 36 by overwriting under initials of some one, whereas 32 marks were scored out and changed to 35. Consequently the average of 32 was also scored and changed to 36. Remark of ''no change'' was altered to ''change of 8%''.

P.W. 5 Prof. Hardaha had stated that he had received Maths-I paper of B. E. 1st Year, Winter-1996 for revaluation bearing Code No. 4626 and he had allotted 13 marks as per R-1 sheet at Exh.68, which he proved to be under his signature. He denied that the answer books had not at all been sent to him. P.W. 6 Dr. Pathak had also examined the same paper and had allotted 17 marks. He proved R-2 sheet at Exh.70. He too denied that he had not at all evaluated the answer sheet .Against 13 and 17 marks allotted by the two examiners which were correctly entered initially in the RTR 28 marks which were entered after scoring initial entries and average was shown as 28. The original answer-sheets in respect of these papers were, however, not produced before the Court and therefore, could not be shown to the revaluers since they were allegedly destroyed. The cross-examination of the professors who revaluated the answer books, however, does not show that there is any reason for disbelieving their word.

In this case, the student had not appeared for practical or sessional examination or had possibly refused to appear for examination as can be seen from remark .RR. in FTR. Therefore, in practicals he was allotted in practicals marks in proportion of marks obtained in theory papers.

According to P.W. 1 Narayan the changes were made by scrutineer Shri Shinde, who is no more, after scoring out initial marks entered in RTR . Since, according to this witness changes had been made by Shri Shinde, complicity of appellant scrutineer Ashok Jaolekar appellant in Criminal Appeal No. 149/2008 is not clear. Even if the theory that one scrutineer used to read and other used to enter the marks is accepted and it is believed that Ashok Jaolekar might have read the marks and Shyamrao Shinde would have entered them, still it cannot be said that Jaolekar had read wrong marks since the marks initially entered were correct as per R-1/R-2 sheets which have been proved by the revaluators. It has, therefore, to be held that Shinde made changes thereafter in order to favour the student since the marks in both the papers have been changed to the advantage of the appellant Parag. It fact, P.W. 1 Narayan stated in his crossexamination that there is no signature or any writing of Jaolekar and Shri Jaolekar is not concerned with this case.

From the evidence of P.W. 2 Shri Dhanraj Tidke, Principal of Yashwantrao Chavan College of Engineering it is clear that Parag Fadnavis had submitted his corrected marksheet on the basis of this revaluation to the college. Copy of the marksheet is at Exh.47.

Advocate Choube, learned Counsel for the appellant Parag Fadnavis submitted that beneficiaries of this change in marks of Parag would have been the management of the college and not the student. He submitted that in fact it was the college which was to lose students and could not have conducted courses because several students had failed. However, no such question was put to the Principal Shri Dharmaraj Tidke in his cross-examination. Therefore, this contention has to be rejected and it has to be held that if anybody had been benefited by the change in marks, it was appellant Parag Fadnavis.

The learned Counsel for appellant Parag Fadnavis next contended that R-1 and R-2 sheets which have been proved, do not relate to the answer books of Parag Fadnavis, but may be of some other person. The evidence of the revluers leaves no doubt about the fact that those R-1/R-2 sheets pertained to Code Nos. 4626 and 3943 which were noted against the name of Parag Fadnavis in the copy of RTR, which is at Exh.23. There cannot be too many coincidences. As the learned Additional Public Prosecutor pointed out that code numbers, subjects, as well as Winter-1996 examination, in R1/R-2 sheets all tally and so it is not possible that the papers examined may not be of appellant Parag Fadnavis. The learned A.P.P. also submitted that had R-1, R-2 sheets not pertained to the code numbers marked against name of Parag Fadnavis in RTR, there would have been no occasion for the scrutineer to initially fill up 13 and 17 marks against Maths-I and 31 and 32 marks against subject Maths-II.

It does not require evidence of handwriting expert to show that the mark have been changed since a bare look at the RTR would show that the initial marks were scored and substituted under the initials of the scrutineer, who is unfortunately no more. Therefore, the fact that appellant Parag has benefitted from tampering cannot be disputed.

As already observed, the contention that appellant Parag Fadnavis might have been benefitted because of strategies of the management has to be rejected since no such questions were put to the Principal P.W. 2 Dharmraj Tidke.

The learned Counsel for appellant Parag Fadnavis submitted that there is no evidence that Parag Fadnavis had ever approached other accused persons or that other accused persons changed the marks to the advantage of Parag Fadnavis at the instance of Parag Fadnavis. He submitted that it may be possible that the change was unintentional, that is, without any motivation to make such a change, or could also have been at the instance of someone else and not necessarily Parag Fadnavis. Therefore, according to the learned Counsel, since the nexus is not established, it would be wrong to hold that the accused persons had engaged in any conspiracy or that Parag Fadnavis had abetted in forgery or falsification of record by Scrutineer or that Parag Fadnavis had indulged in cheating by using as genuine, a marklist, which was false.

The learned APP submitted that it would be too far fetched to imagine that the Scrutineer would increase the marks of Parag Fadnavis for no apparent reason, or without being approached by Parag Fadnavis or merely because he took a fancy for the name. Since scrutineer is no more, it is not necessary to ascertain authorship of handwriting. Suffice it to say that marks of accused Parag Fadnavis were altered to his advantage.

Relying on a judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, , the learned Counsel for the appellant submitted that in a case resting on circumstantial evidence, every circumstance has to be fully established and the circumstances so established must form a chain so complete as to leave no other conclusion but that of guilt of the accused. The observations in Sharad''s case by the Hon''ble Supreme Court in para 152 of the judgment may be usefully reproduced as under:

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In Orissa State Warehousing Corporation Vs. Commissioner of Income Tax, , the Supreme Court had held that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

There can be no doubt about the propositions which have been reiterated by the Apex Court from time to time in order to guide all the Criminal Courts while considering when conviction could be based on circumstantial evidence. The learned APP, however, rightly pointed out that human probability is important catchword in the judgment of Jaharlal Das. He submitted that the probabilities to be considered are not hypothetical probabilities or strained imaginative probabilities, but those, which would, in the circumstances established, normally be available.

Considering the human probabilities in the case, the fact proved, namely, that marks of Parag Fadnavis were changed to his advantage by scrutineer Shinde would lead to the inference that they were so changed at the instance of Parag Fadnavis.

This takes me to the question about role of appellant Yadav Kohchade. It was submitted on behalf of the appellant Yadav Kohchade by his learned Counsel Shri Naidu that the record is handled by the Superintendent and not by the Assistant Registrar. The Superintendent has not been made an accused. Appellant Yadav Kohchade had absolutely no role to play. The learned Counsel pointed out that the learned trial Magistrate had in fact blamed the Superintendent and had come to such conclusion in Regular Criminal Case No. 400/2002. He submitted that the Assistant Registrar''s chamber is in a different building and that the Assistant Registrar has no role in policy making and no role in executing the policy. He pointed out that unless there is a complaint there would be no occasion for the Assistant Registrar to examine any record and therefore, the complicity of appellant Yadav was not at all indicated.

The argument has to be rejected. The Assistant Registrar is incharge of Revaluation Section. By saying that policy decisions are taken at higher level and therefore, he takes no responsibility for the same, and those decisions are implemented by his subordinates and therefore, he is not liable for their actions, appellant Yadav Kohchade makes himself a parasite on the revenues of the University. In fact, he admits abdication of his entire responsibility in ensuring the integrity of the system and accuracy in entering marks obtained by the candidates, who apply for revaluation. He cannot say that he had absolutely nothing to do in the matter. However, this may not be enough to fasten criminal liability on him since his direct complicity is not indicated. Dereliction of his duties may appropriately be dealt with by the University authorities on the administrative side. Therefore, since it not shown that appellant Yadav Kohchade had either tampered with marks or had influenced the scrutineer Shinde to change the marks it would not be possible to uphold conviction of appellant Yadav Kohchade.

The learned Counsel for appellant Parag assailed his client''s conviction on the ground that the appellant was denied opportunity to tender defence evidence. He submitted that in statement u/s 313 of the Code of Criminal Procedure recorded on 14.03.2008 the appellant had stated that he wanted to tender defence evidence. Yet the learned Magistrate proceeded to pronounce judgment on the same day. It is unfortunate that with passage of time, indulgence sought by parties and readily shown by courts, has come to be accepted as an unauthorised amendment to the Code of Criminal Procedure, diluting the requirement that a warrant trial must be conducted on a day to day basis. It is time all in the legal profession make adjournments an exception rather than rule. The learned Magistrate could have shown indulgence by granting atleast a day to appellant to produce defence witnesses, but his not having done so does not matter, since it is not pointed out before this Court as to which witnesses appellant wanted to examine in his defence and how their evidence would have changed fortunes.

This takes me to the question as to what offences, if any, are proved against which of the appellants. The learned Counsel for the appellants submitted that conviction for offence punishable u/s 420 of the Penal Code is not justified, since there is no delivery of any property or valuable security. The learned APP submitted that the conviction u/s 420 (as also u/s 409) of the Penal Code is justified, since the word property. need not be given a restricted meaning to money or other tangible property. For this purpose, he cited some decisions of the Supreme Court.

In R.K. Dalmia Vs. Delhi Administration, , on which the learned A.P.P. relied, the Court had considered the meaning of the word ''property'' used in Sections 405 and 409 of the Penal Code. The Court observed that the word ''property'' is used in the Penal code in a much wider sense than the expression ''movable property''. The Court observed that there was no good reason to restrict the meaning of the ''property'' to movable property only. The Court held that whether the offence defined in a particular section of the Penal Code can be committed in respect of any particular kind of property will depend, not on the interpretation of the word ''property'', but on the fact whether that particular kind of property can be subject to the acts covered by that section. The learned A.P.P. submitted that in view of this judgment, the marks earned by the appellant-student and the mark-sheet issued to him would be a sort of property and therefore, the offence punishable u/s 420 of the Penal Code as also 409 of the Penal Code would be attracted. It is not possible to accept this submission. In the case which the Supreme Court was considering, the question was of entrustment that dominion over funds of Bharat Insurance Company and in that context the observations came. It cannot be held that the property for the purpose of Section 420 or 405 of the Penal Code would be non-corporeal property. It will have to be either movable or immovable property or the property which is transferable, consumable or capable of being spent, and not one of the type of mark-sheet which is non-transferable or non-expendable.

In Shivnarayan Laxminarayan Joshi and Others Vs. State of Maharashtra, , the Supreme Court again considered what constitutes ''property'' for the purpose of Section 409 of the Penal Code and held that chose in action is ''property''. This cannot help the prosecution in branding the registers which the scrutineers were supposed to fill up or the mark sheets which are appellant-students got to be property since a chose in action is indeed property recognised as such in law and is also transferable. Therefore, the presentation by appellant Parag of mark list on the basis of wrong marks for prosecuting further studies would amount to offence punishable u/s 417 of the Penal Code and not Section 420 of the Penal Code.

As the foregoing discussion would show appellant Parag would also be guilty of abetment to commit offences punishable under Sections 468 and 471 of the Indian Penal Code i.e. offences punishable under Sections 468 and 471 read with Section 109 of Indian Penal Code, by causing deceased scrutineer Shinde to alter his marks. Offence punishable u/s 120-B of the Indian Penal Code is however not at all made out. Resort to Section 120B Indian Penal Code is permissible when there is only a conspiracy to commit an offence, but the offence is not actually committed, or there is a conspiracy to do an illegal act which is not an offence. In this case, forgery is alleged to have been committed by .abetment by conspiracy.. Since an offence is already committed there is no need to have recourse to Section 120-B of the Indian Penal Code.

As regards the direction of the learned Additional Chief Judicial Magistrate that the sentences shall run consecutively, the learned Counsel for the appellants placed reliance on a Full Bench judgment of this Court in Queen-Empress v. Malu Argun and Anr. reported at 1 BLW 1899. In that case, a person had committed housebreaking in order to commit theft. The Court held that while awarding punishment under the provisions of Section 71 of the Penal Code, the Court should pass one sentence for either of the above offences and not a separate one for each offence. The Court also added that if two sentences were passed and the aggregate of them did not exceed the punishment provided by law for any one of the offences, or the jurisdiction of the Court, that would be an irregularity only, and not an illegality

Since one criminal act is made punishable under several sections it may be inappropriate to direct that the sentences shall run consecutively.

While there can be no doubt that the offences of this type ought to be dealt with sternly, it may be useful to bear in mind the necessity of proportionality in the matter of sentence. The learned trial Magistrate seems to have lost sight of this requirement and has dealt with appellants with a heavy hand as also even hand. He should have realised that treating unequals equally would also amount to inequality. Parag Fadnavis is a student who might have committed indiscretion in attempt to get a quick degree by getting his marks increased. It was undoubtedly wrong on his part to fall for such temptation. It does not, however, follow that apart from the stigma that he would bear throughout his life, he should also suffer long period of incarceration, which may be push him in the life of crime, rather than redeem him as a useful member of the society. He is shown to have been in jail from 19.03.2008 till 11.04.2008 when he was bailed out i.e. for little less than a month. This imprisonment ought to be enough chastisement for appellant Parag. As for cancellation of mark sheets and degree of appellant Parag, the learned Magistrate seems to have transgressed the disciplinary jurisdiction of the University He should have realised that he could impose sentence or pass orders only as authorised by the Code of Criminal Procedure. Hence, order directing confiscation of degree and mark lists cannot be sustained.

In the result Criminal Appeal No. 140 of 2008 and Criminal Appeal No. 180 of 2008 are allowed. Conviction of appellants Ashok Jaolekar and Yadav Kohchade for offences punishable under Sections 420, 409, 468, 471, 120-B read with Sections 109 and 34 of the Penal Code and sentences imposed on them are set aside. They are acquitted of those offences.

Criminal Appeal No. 149 of 2008 is partly allowed. Conviction of the appellant for the offences punishable under Sections 420 and 120-B of the Indian Penal Code and sentences imposed upon him are set aside. Instead he is convicted for the offence punishable u/s 417 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the period already undergone and to pay a fine of Rs. Twenty Thousand or in default suffer rigorous imprisonment for one month. His conviction for the offences punishable under Sections 468 and 471 read with Section 109 of the Indian Penal Code is maintained, but sentence is altered to rigorous imprisonment for the period already undergone and fine of Rs. Twenty Thousand or in default rigorous imprisonment for further period of one month for both the offences punishable under Sections 468 and 471 of the Indian Penal Code.

The substantive sentences shall run concurrently. The order directing confiscation of appellant''s mark lists and degree is set aside.