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2016 DIGILAW 936 (SC)

Surinder Mohan Katwal v. State of Himachal Pradesh

2016-07-14

R.BANUMATHI, V.GOPALA GOWDA

body2016
ORDER : R. Banumathi, J. These appeals arise out of the common judgment of the High Court of Himachal Pradesh at Shimla challenging the correctness of the judgment dated 11.05.2011 in Criminal Appeal No. 305/2006, 297/2006, whereby the High Court confirmed the conviction of S.M. Katwal under Section 13(2) of Prevention of Corruption Act and reducing the sentence of imprisonment to one year with fine of Rs. 5,000/- with default clause. High Court acquitted appellant-S.M. Katwal of other offences. By the impugned judgment, High Court confirmed the conviction of appellant Madan Gopal under Section 120B I.P.C. and reducing the sentence of imprisonment imposed on him to one year with fine of Rs. 5,000/- with default clause. Appellant Madan Gopal was acquitted of other offences. 2. Common facts leading to these appeals are as follows: Appellant-Surinder Mohan Katwal is the Chairman of Himachal Pradesh Subordinate Service Selection Board (HPSSSB). There were some vacancies of Trained Graduate Teachers (Non-Medical) for which appellant-S.M. Katwal was required to recommend the names after following the due selection process. Written test was held in which appellant Madan Gopal scored 111 marks. Madan Gopal along with other various candidates who had qualified the written test was called for interview and interview was held on 30.10.2002. List indicating the score in the written test as also in the interview and the total marks was prepared and the said list is Ext.PW-2/C-14. The score-card prepared, Ex.PW-2/C-14, depicted that Madan Gopal had secured 12' marks in viva-voce and his performance had been remarked as 'average'. However, in a subsequent score-card prepared, Ex.PW-2/C-15, marks secured by Madan Gopal in viva-voce was indicated to be 18' and he was remarked as 'above average'. The appellant-Surinder Mohan Katwal had taken a defence plea that Ex.PW-2/C-15 i.e. subsequent score-card was prepared as the first score-card, Ex.PW-2/C-14 had got torn. 3. In the trial court, a number of witnesses including PW-4-Surinder Kumar Clerk of the Subordinate Staff Selection Board and PW-39-Dr. Minakshi Mahajan were examined. The appellant-Surinder Mohan Katwal had taken a defence plea that Ex.PW-2/C-15 i.e. subsequent score-card was prepared as the first score-card, Ex.PW-2/C-14 had got torn. 3. In the trial court, a number of witnesses including PW-4-Surinder Kumar Clerk of the Subordinate Staff Selection Board and PW-39-Dr. Minakshi Mahajan were examined. Upon consideration of evidence, trial court held that appellant S.M. Katwal as Chairman of HPSSS Board by using his position as such public servant in order to cause pecuniary advantage in favour of A-4-Madan Gopal recommended his name for the post of Trained Graduate Teacher (non-medical) by tampering the marks in the interview score sheet (Ext.PW-2/ C-14) from 12' to 18' and by inserting the word 'above' before the 'average' and thus committed offence. Trial court convicted S.M. Katwal of offences under Section 13(2) of the Prevention of Corruption Act and Sections 466, 468 and 471 and 120B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of three years and a fine of Rs. 5,000/- with default clause. In lieu of conviction under Section 13(2) of Prevention of Corruption Act and rigorous imprisonment for a period of two years and fine of Rs. 2,000/- to undergo simple imprisonment for a further period of six months, for each of the offences, in lieu of conviction under above mentioned sections of IPC. Appellant-Madan Gopal was convicted of offences under Sections 466, 468, 471 and 120B of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.2,000/- with default clause. Being aggrieved, both the appellants challenged their conviction in appeal before the High Court. 4. On consideration of the evidence on record, the High Court dismissed the appeal filed by appellant-Surinder Mohan Katwal. However, taking into account his age and the fact that criminal acts were committed by him to favour just one candidate, sentence was reduced to one year rigorous imprisonment and confirmed the fine of Rs. 5,000/-. The appellant-Madan Gopal was found guilty of offence punishable under Section 120B I.P.C. and sentence of imprisonment imposed on him was reduced to one year. However, he was acquitted of charges of forgery and his conviction for offences under Section 466, 468 and 471 of the I.P.C. was set aside. High Court reduced the sentence to one year rigorous imprisonment and fine of Rs. However, he was acquitted of charges of forgery and his conviction for offences under Section 466, 468 and 471 of the I.P.C. was set aside. High Court reduced the sentence to one year rigorous imprisonment and fine of Rs. 5,000/- with default clause. 5. Based upon evidence of PW-4-Andeep, trial court and the High Court recorded the concurrent findings of facts that in the merit list (Ext.PW2/C-14), score of appellant-Madan Gopal has been changed from 12' to 18' and also word 'above' has been added to word 'average' initially written in remarks column. After comparison, Ext.PW-2/C-14 both the courts observed that word 'above' written in a pen and ink different from those with which word 'average' is written in the remarks column of Ext.PW2/C-14. Opinion of handwriting expert namely PW-39-Dr.Minakshi Mahajan is also to the same effect. PW-39 has opined that the word 'above' is in the handwriting of appellant-S.M. Katwal. 6. Appellant raised defence plea that the total score of appellant-Madan Gopal has remained unchanged which is 129' as even after adding 18' marks awarded in interview to the score of 111 in the written test which is sufficient to conclude that the score of appellant-Madan Gopal recorded as 18' under column interview was done in the beginning itself. Considering the submission and upon close scrutiny, the High Court observed that Ext.PW-2/C-14 changed the word made in the remarks column by adding the word 'above' before the word 'average' in a different pen and ink than the one used before. The evidence of PW-39-Dr. Minakshi Mahajan supported the prosecution case as to manipulating the score card so as to favour the appellant-Madan Gopal. Conviction of the appellant-S.M. Katwal under Section 13(2) of the Prevention of Corruption Act and also the offences under Sections 466, 468 and 471 I.P.C. is based on evidence and material on record and the same warrants no interference. 7. Learned counsel for the appellant-Madan Gopal submitted that Madan Gopal could not have been convicted for the offence of criminal conspiracy and there was no evidence to show that Madan Gopal had played any role in the increase of marks awarded to him. As observed by the High Court, S.M. Katwal made the interpolations not to derive any benefit for himself; but he made the interpolation so as to favour Madan Gopal who is the ultimate beneficiary of the act of the appellant. As observed by the High Court, S.M. Katwal made the interpolations not to derive any benefit for himself; but he made the interpolation so as to favour Madan Gopal who is the ultimate beneficiary of the act of the appellant. High Court was right in observing that "it can legitimately be presumed that there was criminal conspiracy between two appellants and the object of that conspiracy was to ensure the selection of appellant-Madan Gopal as TGT (non-medical)". Conviction of the appellant-Madan Gopal under Section 120B I.P.C. is also based on evidence and material on record which warrants no interference. 8. In the result, both 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.