(V. Gopala Gowda and R. Banumathi, JJ.)
Surinder Mohan Katwal ____________________________ Appellant
v.
State of Himachal Pradesh __________________________ Respondent
Criminal Appeal No. 2272 of 2011, decided on July 14, 2016
With
Criminal Appeal No. 2273 of 2011 and Criminal Appeal No. 2275 of 2011
The Order of the court was delivered by
Order
R. Banumathi, J.:— Criminal appeal No. 2272 of 2011, Criminal appeal No. 2273 of 2011 and Criminal Appeal No. 2275 of 2011 arise from a common impugned order dated 11.05.2011 whereby the High Court of Himachal Pradesh at Shimla convicted the appellants Surinder Mohan Katwal and Dr. Vidya Nath under Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 420, 120-B, 218 and 477-A of IPC; and appellant-Rakesh Kumar Chhabra under Sections 120-B and 420 IPC, reducing the sentence imposed on each of the appellants to one year.
2. Common facts arising out of these criminal appeals are as follows:- At the relevant point of time, appellant Surinder Mohan Katwal was the Chairman of the Himachal Pradesh Subordinate Staff Selection Board (HPSSSB) with headquarter at Hamirpur and appellant Dr. Vidya Nath was a Member of that Board. Recruitment process was being carried out by the Board in lieu of 238 vacancies of Physical Education Teachers (PET) available in different schools of various districts of the state. Selection was to be made in three stages comprising of screening test, ground test and viva-voce. Candidates who appeared successful in the screening test were allowed to appear for ground test and those successful in ground test were called for viva-voce. Final selection was based on the merit list prepared by considering both the marks obtained in viva-voce as well as in the ground test.
3. In order to facilitate the viva-voce, two boards were constituted, one headed by appellant-Surinder Mohan Katwal, in his capacity as Chairman of the Board and the other headed by appellant-Dr. Vidya Nath, as a Member of Board. Appellant-Rakesh Kumar Chhabra was interviewed by the Board headed by S. M. Kotwal. As per the score-sheet of the candidates, earmarked as Ext. PW3/A, the appellant-Rakesh Kumar Chhabra was awarded ‘7’ marks in the viva-voce. Considering ‘51’ marks in ground test, his total marks obtained was indicated to be ‘58’ and accordingly he was remarked as ‘below average’.
4. However, in the final merit list earmarked as Ext.PW3/K, appellant-Rakesh Kumar Chhabra was shown to have secured ‘13’ marks in the viva-voce and his total marks obtained was indicated to be ‘64’. It is also brought on record that as a consequence of bungling of the merit list, appellant-Rakesh Kumar Chhabra was recommended for appointment and was ultimately appointed. On account of the above mentioned disparity in the merit list, all the three appellants faced criminal prosecution on the allegations of hatching a criminal conspiracy and duplicating the merit list to favour appellant-Rakesh Kumar Chhabra. In pursuance thereof, FIR No. 1/2003 at PS Enforcement North Zone Dharamshala, District Kangra, was registered against the appellants under Section 13(2) of Prevention of Corruption Act alongwith Sections 120-B, 420, 468 and 471 IPC. After completion of investigation and after obtaining sanction order from the Government, chargesheet was filed against the appellants.
5. To prove the conspiracy and that the records of selection were falsified, prosecution has examined sixteen witnesses including two officials from the Board namely PW-3-Surinder Kumar, Senior Assistant and PW-4-Sanjeev Kumar, Senior Assistant and Handwriting Expert. PWs 3 and 4 deposed that the merit list (Ext. PW3/A) was in the hand of appellant-Surinder Mohan Katwal and the columns in which marks had been recorded in Ext.PW3/K were written in the hand of appellant-Dr. Vidya Nath. PW-7- Handwriting Expert-Dr. Minakshi Mahajan has also attributed handwriting and signatures of the officials in Ext.PW3/A to be that of appellant S.M. Katwal and the ones in Ext.PW3/K to be that of appellant-Dr. Vidya Nath.
6. Upon analysis of evidence, trial court took note of the fact that the appellants have not disputed the existence of their signatures on Ext.PW3/K and Dr. Vidya Nath’s writing (in figure) in Ex.PW3/K; rather they have taken the plea of bonafide error or mistake on their part. Upon appraisal to avoid repetition of evidence, trial court found that the prosecution has established the guilt of the accused beyond reasonable doubt and therefore convicted the appellants S.M. Katwal and Dr. Vidya Nath of offences under Sections 13(2) of the Prevention of Corruption Act, and Sections 468, 471, 420 and 120-B IPC and they were sentenced to undergo three years rigorous imprisonment. Appellant-Rakesh Kumar Chhabra was convicted of offences under Sections 468, 471, 420 and 120-B IPC.
7. Appellants challenged their conviction by preferring separate appeals. High Court held that the appellants S.M. Katwal and Dr. Vidya Nath did not forge any document; rather they prepared false record of final result which amounted to offences punishable under Sections 218 and 477-A of the Indian Penal Code. On those findings, High Court acquitted the appellants S.M. Katwal and Dr. Vidya Nath under Sections 468, 471 IPC and maintained their conviction under Section 13(2) of the Prevention of Corruption Act and Sections 420 and 120-B IPC. However, the High Court reduced the sentence of imprisonment to one year and imposed a fine of Rs. 5,000/- with default clause in respect of each of the offences for which they have been convicted of. The conviction of appellant-R.K. Chhabra under Section 468 and 471 IPC was set aside and his conviction under Sections 120-B and 420 IPC was confirmed. His sentence of imprisonment was also reduced to one year.
8. We have heard the learned counsel appearing for the parties at considerable length. Mr. Jayant Bhusan learned Senior Counsel appearing for appellant-Dr. Vidya Nath submitted that appellant-Rakesh Kumar Chhabra appeared before the HPSSSB headed by S.M. Katwal and Dr. Vidya Nath simply signed in the final merit list and courts below wrongly relied upon the statements of PW-3-Surinder Kumar and PW-4-Sanjeev Kumar for coming to the conclusion that appellant-Dr. Vidya Nath has written the figure work in the merit list (Ext.PW3/K). The learned counsel submitted that the High Court erred in basing its conclusion on the statement of PW7-Dr. Minakshi Mahajan (handwriting expert) and holding that the prosecution has proved its case against the appellants, without appreciating the statements of the witnesses. It was submitted that such an approach of the High Court is perverse. The counsel urged that the High Court, as the first appellate court, ought to have thoroughly evaluated and analysed the evidence on record afresh; rather than simply endorsing the finding of the trial court that the score of appellant-Rakesh Kumar Chhabra had been shown to be higher than the actual score while preparing final list (Ext.PW3/K).
9. Per contra, learned counsel for the state submitted that the evidence of PWs 3 and 4 is corroborated by the evidence of handwriting expert-Minakshi Mahajan (PW-7). Trial court and the High Court recorded concurrent finding of facts that merit list (Ext.PW3/A) was in the handwriting of appellant-S.M. Katwal and that the column figure recorded in Ext. PW3/K was in the handwriting of appellant-Dr. Vidya Nath. Resultantly, appellant-Rakesh Kumar Chhabra emerged as the beneficiary. It was finally submitted that the concurrent finding of the courts below do not suffer from any perversity warranting interference.
10. We have carefully considered the rival contentions, perused the impugned judgment of the High Court as also of the trial court and other materials on record.
11. PW-3-Surinder Kumar working as a Senior Assistant in the Board had stated that he was acquainted with the handwriting and signatures of the appellants S.M. Katwal and Dr. Vidya Nath but was not conversant with their writing in figures (Ext.PW3/K). PW-3-Surinder Kumar carried out the entry in first three columns of the interview sheet. PW-3 further stated that last column of remarks in the interview sheet Ext.PW3/A has been written, updated and signed by appellant-S.M. Katwal. PW-3 also stated that appellant-Dr. Vidya Nath has signed the documents Ext.PW3/J-1 to PW3/J-26 and that in the merit list Ext.PW3/K the last four columns appear to have been written by appellant-Dr. Vidya Nath. Corroborating PW-3’s testimony, PW-4-Sanjeev Kumar, Senior Assistant stated that merit list Ext.PW3/K (two sheets) had been duly signed by the appellants S.M. Katwal and Dr. Vidya Nath. PW-4 further stated that appellant Dr. Vidya Nath had written column ‘5’ to ‘8’ of the merit list (Ext.PW3/K) in his own hand. Sl. No. 32 in the said merit list referred to appellant-Rakesh Kumar Chhabra. PWs 3 and 4 working in the HPSSSB have thus clearly spoken that the columns in merit list (Ext.PW-3/K) pertaining to the score of written test, and viva-voce were written in the hands of appellants S.M. Katwal and Dr. Vidya Nath. From the evidence of PWs 3 and 4, it is also brought on record that remarks of the interview sheet (Ext. PW3/K) has been updated and written by the appellant-S.M. Katwal.
12. Appellant-Dr. Vidya Nath has not disputed his signature on the merit list Ext. PW3/K; but has disputed the figures written vide ‘Q-30’ to ‘Q-32’ in the said merit list. In the context of the above defence plea, trial court as well as the High Court referred to the evidence of handwriting expert-PW-7-Dr. Minakshi Mahajan who has compared the disputed handwritings with admitted handwritings of the appellants. After comparison of appellant-Dr. Vidya Nath admitted handwriting with disputed figures Q-30 to Q-32 on merit list (Ext.PW3/K), PW-7-Minakshi Mahajan stated that the disputed figures have been written by none else than appellant-Dr. Vidya Nath and that the merit list contains the signature of appellants.
13. Referring to the evidence of PWs 3 and 4 and upon thorough analysis of evidence of handwriting expert PW-7-Dr. Minakshi Mahajan, the facts and circumstances of the case, it stands firmly established firstly that figures ‘Q-30’ to ‘Q-32’ on merit list Ext.PW3/K have been written by Dr. Vidya Nath and secondly that the list bears the signatures of both S.M. Katwal and Dr. Vidya Nath. S.M. Katwal and Dr. Vidya Nath in their statements under Section 313 of the Code of Criminal Procedure have admitted that both of them prepared the said merit list (Ext.PW3/K jointly. The evidence discussed above fully establishes that Dr. Vidya nath was the author of figures “13” and “64” on merit list Ext.PW3/K and no further evidence is required for the court to fix the identity of the author of figures “13” and “64” in merit list Ext.PW3/K.
14. While the trial court examined the evidence of PWs 3 and 4 and that of handwriting expert (PW-7) at threadbare for confirming the conviction of the appellants S.M. Katwal and Dr. Vidya Nath, the High Court has not discussed the evidence on which it relied for confirming the conviction of the appellant. The powers of the appellate court under Section 386 Cr.P.C. are the same as that of the trial court. It is true that the trial court being a primary court of facts, which has the advantage of seeing and observing the witnesses has to thoroughly analyse the evidence and record its findings. In an appeal from a conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is substantially established and record its own findings to confirm the conviction. In the present case, even though there is no thorough evaluation of evidence by the High Court, in our view, impugned judgment does not suffer from any perversity warranting interference. The conviction of appellant-S.M. Katwal and Dr. Vidya Nath is based on material on record and warrants no interference.
15. In so far as Rakesh Kumar Chhabra is concerned, it is notworthy that none of the candidates scored in viva voce test in double digits, whereas R.K. Chhabra is shown to have scored ‘13’ marks in the interview. Courts have recorded the concurrent findings that the appellants conspired to make the entry of the marks scored by R.K. Chhabra as ‘13’ so as to favour R.K. Chhabra and thus he was rightly convicted under Section 120-B read with Section 420 IPC.
16. In the result, all the appeals are dismissed. The appellants are on bail and their bail bonds shall stand cancelled. The appellants shall be taken to custody to serve out the remaining sentence.
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