JUDGMENT : (Mohd. Akram Chowdhary, J.) : 1. Appellant No. 2 Mohd. Adrees S/o Said Mohd. R/o Panjani Tehsil Mendhar District Poonch, who was alleged to have been selected for his recruitment in J&K Police in an on spot recruitment, had produced two School Leaving Certificates issued by Headmaster Govt. High School Burhutti Mendhar for 8th Class pass and reading in 10th Class on 16.09.1998 to Mr. Manohar Lal Mehra, Dy. SP Poonch and one of the certificates issued at Sl. No. 32 seemed to him to have been made fictitious by tampering with ink, as such, he forwarded the same to SHO P/S Mendhar to verify the authenticity of the certificate from the concerned authority and furnish a factual report to his office urgently. 2. SHO P/S Mendhar, on receipt of the communication from Dy. SP Poonch, requisitioned the record from Government High School, Burhutti, which was produced to him by appellant no. 1 Mustan Shah Teacher, Incharge Admission/Records. From the scrutiny of the record, tampering was found pertaining to the actual date of birth of appellant no. 2 Mohd. Andrees i.e. May 2, 1981, which calculated less than 18 years of qualifying age for Government employment. The School establishment including the Headmaster, In charge Admission etc. were suspected to have connived with the said Mohd. Andrees to give him undue benefit and changed the year of birth from 1981 to 1980. 3. A case was registered vide FIR No. 173/1998 on 23.09.1998 at P/S Mendhar for commission of offences punishable under sections 466/468/471/420 r/w section 34 RPC and during investigation, on the basis of the record and statement of the witnesses, accused Mustan Shah, Teacher, Incharge Admission/Record was found to have tampered with Entry No.346 of the admission/withdrawal register and Entry No. 142 of the Date of Birth Register, with a criminal intention to issue forged birth certificate in favour of Mohd. Andrees and a charge sheet was laid for the commission of offences punishable under sections 420/466/468/34 RPC against the Appellant No. 1 Mustan Shah and for the commission of offences punishable under sections 420/471/34 RPC against appellant no. 2 Mohd. Andrees. 4. Both the appellants were charge sheeted for the commission of the aforementioned offences by Principal Sessions Judge Poonch (Trial Court) vide order dated 20.07.2000, who pleading innocence, denied the charge and claimed trial. 5. 2 Mohd. Andrees. 4. Both the appellants were charge sheeted for the commission of the aforementioned offences by Principal Sessions Judge Poonch (Trial Court) vide order dated 20.07.2000, who pleading innocence, denied the charge and claimed trial. 5. The prosecution, in order to prove its case to bring home the charge against the accused appellants examined Manohar Lal Mehra, Mohd. Hafiz, Subash Chander, Shabir Hussain, Mohd. Suleman, Abdul Rehman, and Mohd. Sharief Chouhan as prosecution witnesses. After examination in terms of Section 342 Cr.P.C., the accused examined Nazir Hussain as a defense witness. The trial court vide impugned judgment dated 29.10.2012 passed in the case titled State v. Mustan Shah & Anr. recorded the conviction of appellant/accused Mustan Shah for the commission of offences punishable under sections 466/468/471 and 34 RPC whereas appellant/accused Mohd. Andrees for the commission of offences punishable under sections 468/471/420 and 34 RPC and vide order dated 29.10.2012 sentenced them to imprisonment as well as fine. 6. Aggrieved of the aforesaid impugned judgment/order, the appellants have filed this appeal assailing the same, on the following grounds: "a. That the judgment annexure A as also the order of sentence annexure-B to this appeal are a result of mis appreciation of the entire prosecution evidence and mis-application of law. On this ground alone the judgment annexure A and order of sentence annexure-B are liable to be set aside; b. That the trial court has completely mis-understood the very substratum of the prosecution story as was reflected in the charge, which had been framed against the appellants. The charge against the appellant no.1 was that he had in alliance with appellant no. 2 changed the date of birth as was recorded in the two school leaving certificates, as also had changed the original record of admission/date of birth in the school. It was further charged against appellant no. 1 that the said certificates were later produced in the month of September 98 in the office of Superintendent of Police, Poonch. It thus was a case right from beginning that no employment had been granted to appellant no. 2 nor was it a case where appellant no. 2 was alleged to have got into service and received any benefit there from. It thus was a case right from beginning that no employment had been granted to appellant no. 2 nor was it a case where appellant no. 2 was alleged to have got into service and received any benefit there from. The prosecution case thus at the trial was something which by reference to the evidence that was recorded in support of charge could never under law be deemed to have been proved. The very character and quality of the evidence, if the learned Trial Court would have appreciated, did not disclose any offence particularly the ones under which appellants have been ultimately illegally convicted and sentenced. On this ground also the judgment annexure A and order of sentence annexure B are liable to be set aside. c. That even though the trial court has referred to some of the facts which by a further appreciation and understanding by reference to law would only have proved that appellants were innocent, yet did not appreciate the said facts in the background of the law relating to forgery and cheating. It was not the case of prosecution at any stage that they had investigated the original record with respect to the date of birth or admission of the appellant no. 2 and had by any such investigation found that the said record from which school leaving certificate and other certificates were issued was found to be tampered with. For purposes of discharging the burden of proof it is the possession which has to discharge the same. In law the burden of proof does not shift to accused at any stage except for cases arising out of such statutes which by reference make shifting of onus permissible and possible. The learned Trial Court has even after accepting that there was no evidence with respect to tampering of records, yet on a mis-placed notion of law and approach in a criminal trial, has proceeded to draw presumption against the appellants on the basis of non-existent circumstances and facts. There was no evidence on record that the registers which had or should have had the original entries with respect to date of birth were tampered with. There was no evidence as to who had tampered the said registers. There is also no evidence in law to suggest any tampering much less prove the same with respect to the two discharged certificates. There was no evidence as to who had tampered the said registers. There is also no evidence in law to suggest any tampering much less prove the same with respect to the two discharged certificates. In absence of legal provision with respect to the same there could be no presumption drawn against the appellants as it was not arising out of any statutes. The trial court has completely ignored one of the basis circumstances which had been alleged by the prosecution and which related to the allegations of the charge of date of birth having been made to increase the age and not to decrease it. It had also been completely overlooked by the trial court that there was no proof of any employment having been granted to appellant no. 2 much less he having drawn any benefit. The entire prosecution case would have been appreciated by a reference to the aforesaid two facts and evidence as had been produced would have been classified only a statement and not evidence in a criminal trial proving commission of any offence. Appellants who are innocent have been convicted of an offence which in fact has not been committed and which in law also has not been committed". 7. Learned counsels for the appellants have argued that the prosecution had not placed on record any document to prove that the appellant no. 2 had been selected or appointed against any advertisement as there is no proof with regard to the fact that he had applied or had been selected. Therefore, there can be no question of using of a forged DOB certificate for recruitment. They have further argued that in view of, there being no proof with regard to selection on spot, there cannot be a question of cheating as defined under section 415 RPC and punishable under section 420 RPC. They have also argued that there was no proof that a forged document presented to be acted upon to derive a benefit. They have argued that there was neither any proof with regard to advertisement, application by the appellant no. 2, selection or appointment. Therefore, there was neither any loss nor gain to anybody so as to attract the commission of any offence or punishment thereof. 8. They have argued that there was neither any proof with regard to advertisement, application by the appellant no. 2, selection or appointment. Therefore, there was neither any loss nor gain to anybody so as to attract the commission of any offence or punishment thereof. 8. Learned counsels for the appellants have also argued that the trial court had passed the order without application of mind, as in Para 26 of the judgment some reference is made to an injured and in Para 27 to a case of murder. It was further argued that trial court has dealt with the matter as if the burden of proof of forging D.O.B. certificate was on defense, while making a reference to the moot question of appellant no. 2's D.O.B. and having not been proved by him. They have argued that it was not for the accused/appellants to prove the D.O.B. as the onus to prove the case was entirely on the prosecution and the defense cannot be expected to prove innocence in a criminal trial. They have also pointed out that vide impugned judgment PW Manohar Lal Mehra had been shown as a member of selection board which was also factually incorrect as PW Mehra himself had stated that he was not associated with the recruitment and had only been assigned the job of verifying the certificates of the candidates. They have argued that the appellants have been convicted there being no incriminating evidence against them and prayed that the impugned judgment /order be set aside by allowing their appeal. 9. Learned counsel for the respondent, on the other hand, argued that the prosecution had succeeded to prove its case to bring home the charge against the accused in a long drawn trial before the trial court. The prosecution had examined almost all the witnesses who have proved that the appellant no. 1 as In charge Admission/Records had forged the D.O.B. certificate of appellant no. 2 by tampering his year of birth from 1981 to 1980 so as to bring him within the minimum qualifying age of 18 years to apply for a government job. Both the appellants had entered into a conspiracy and the certificate forged by appellant no. 1 had been used by the appellant no. 2 before the police authorities so as to substantiate his claim for on spot selection in police by the police organization. Both the appellants had entered into a conspiracy and the certificate forged by appellant no. 1 had been used by the appellant no. 2 before the police authorities so as to substantiate his claim for on spot selection in police by the police organization. Therefore, the prosecution by leading sufficient evidence had proved that both the accused persons committed the offences of which they were charged and had been rightly convicted and sentenced by the trial court. He has prayed that the appeal which is without any merit and substance be dismissed and the impugned judgment/order be upheld with direction to the appellants convicts to surrender before the Trial court for undergoing the sentence. 10. Heard, perused the Trial Court record and considered. 11. Both the appellants/accused have been convicted for the commission of offences punishable under sections 468/471 r/w 34 RPC besides appellant no.1 for Section 466 and appellant no. 2 for Section 420 RPC. Section 420 of the RPC presupposes that a dishonest inducement or representation must be made and acted upon, the victim must part with valuable consideration to sustain wrongful loss, leading to wrongful gain for the accused. Cheating has been defined under section 415 RPC which for the sake of convenience is reproduced herein below: Section 415. Cheating.-whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.- A dishonest concealment of facts is deception within the meaning of this section. Section 420 RPC is reproduced for handy reference as under: "420. Explanation.- A dishonest concealment of facts is deception within the meaning of this section. Section 420 RPC is reproduced for handy reference as under: "420. Cheating and dishonestly inducing delivery of property.- whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, later or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 12. For an accused to be punished under section 420 RPC he must be proved to have deceived any person fraudulently or dishonestly induced the person so deceived to deliver any property to any person. To make things more coherent, the expressions 'dishonestly' and 'fraudulently' as defined under section 24 and 25 of the Penal code, respectively, may also be referred to as under: "Section 24. Dishonestly.- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". "Section 25. Fraudulently.- A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise." 13. From a conjoint and careful perusal of the aforementioned provisions, the following essential ingredients of the offence of "cheating" may be culled out viz., (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything that he would not do or omit to do if he were not so deceived; and (iii) such act or omission causes or is likely to cause damage or harm to that person's body, mind, reputation, or property. Thus, in order to constitute an offence under section 420, there should not only be cheating. Thus, in order to constitute an offence under section 420, there should not only be cheating. but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter, or destroy wholly or in part a valuable security or anything signed or sealed and which is capable of being converted into a valuable security. 14. Since the only evidence relied upon by the prosecution in this direction has been the testimony of PW 1, Dy. SP Manohar Lal Mehra, it assumes great significance and requires a careful analysis. He has deposed before the trial court that for several days prior to September 16, 1998, interviews were being held for the recruitment of constables in the police department; however, he was not a member of the recruitment board, though he was assigned scrutiny of the documents. He further deposed that on September 16, 1998, he found that Mohd. Adrees (appellant no. 2) was also a candidate who had submitted two birth certificates along with his application, of which the middle pass certificate was tampered with. He also stated that he had received these certificates for scrutiny from the office after the selection, when the candidates deposited the same following the instructions to do so within a week's time issued by the board members, and not by him. In the same breath, he also stated that the certificates were deposited with the concerned clerk in his office, whose name he did not remember. It may be noted with circumspection that, realising the risk of being questioned about the existence of the candidate's application that he had referred to during his examination-in-chief, he tried to give it an aborted twist that there were no prior applications called or submitted, but it was on-the-spot recruitment. Be that as it may, in both cases, there ought to have been some documentary evidence to prove that there was a selection process going on wherein the appellant also participated and got selected. By no stretch of imagination can it be believed that the recruitment of police personnel was carried out through a paperless selection process. 15. There is no evidence of a select list bearing the appellant's name. There is also no evidence that, pursuant to any selection, he was asked to submit the birth certificate. By no stretch of imagination can it be believed that the recruitment of police personnel was carried out through a paperless selection process. 15. There is no evidence of a select list bearing the appellant's name. There is also no evidence that, pursuant to any selection, he was asked to submit the birth certificate. No member of the recruitment board was cited or examined as a witness to prove that Appellant No. 2 participated in the process of selection, if at all it took place, or that he was selected. There is also no oral or documentary evidence whatsoever cited or presented during the trial to show that the said appellant ever submitted any certificates to the SP office in Poonch or deposited them with any clerk. The finding of fact recorded by the learned trial judge that PW-M. L. Mehra was a member of the recruitment board is devoid of any factual basis and thus highly misplaced. It has been categorically negated by none other than PW Mehra himself. In the absence of any legal evidence to prove the participation of Appellant No. 2 in the recruitment process, his selection, the submission of certificates to the SP's office and indeed a gainful employment in consequence thereof, no offence under section 420 RPC can be fastened to his neck. The appellant neither received any wrongful gain nor caused any wrongful loss to any person. Proof of commission of the offence of defrauding anyone apart, there is no evidence to prove that the appellant convicted under section 420 RPC, ever intended or attempted to do so. Therefore, both the allegations, i.e., inducing dishonestly and fraudulently, have not been proven against him. The case of the prosecution at the trial was something that, by reference to the recorded evidence, could not be said to have been proved under law. The trial court completely overlooked the fact that there was no proof of any cheating and dishonest inducement for delivery of property, which, in this case, could have been gainful employment having been granted to Appellant No. 2, but they have been convicted of an offence that has not been committed, in fact as well as in law. 16. The trial court completely overlooked the fact that there was no proof of any cheating and dishonest inducement for delivery of property, which, in this case, could have been gainful employment having been granted to Appellant No. 2, but they have been convicted of an offence that has not been committed, in fact as well as in law. 16. Adverting to the charge of forging the certificates for cheating framed under sections 466 and 468 RPC, as well as the use of said certificates as genuine as defined under section 471 RPC, it would be appropriate to first refer to the legal provisions related thereto and ingredients thereof. Section 468 RPC provides that whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. While Section 466 RPC deals with an aggravated form of forgery in relation to the specified documents under which Appellant No. 1 has been convicted, Section 471 provides that whoever fraudulently or dishonestly uses as genuine any document that he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such a document. 17. The term "forgery" is defined in Section 463 RPC as follows: 463. Forgery.- Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Thus, the condition precedent for offences under sections 468 and 471 RPC, is forgery. The condition precedent for forgery is making a false document, false electronic record, or part thereof. 18. It may be seen that Appellant No. 1 has been convicted for aggravated forgery under section 466 RPC and also under section 468 RPC for forgery aimed at cheating. To bring home the appellants' guilt under these provisions, the prosecution has relied on certain documents and the testimonies of PWs Shabbir Hussain teacher, Mohammed Suleiman headmaster, and Abdul Rehman teacher. The two police personnel namely Mohd. To bring home the appellants' guilt under these provisions, the prosecution has relied on certain documents and the testimonies of PWs Shabbir Hussain teacher, Mohammed Suleiman headmaster, and Abdul Rehman teacher. The two police personnel namely Mohd. Hafiz and Subhash Chander have evidenced the undisputed seizure of documents. Before embarking upon the analysis of the relevant evidence, it may be marked that enclosed with his letter (EXPW-ML), Dy. SP Mehra sent two certificates to the SHO for verification i.e., certificate Mark "Q" Bearing Serial No. 32 titled as "Date of Birth Certificate" and Mark "R" which is titled as the "School Leaving Certificate". A distinction that deserves to be drawn between the two certificates is that Mark "Q" is a birth certificate whereas Mark "R" is a qualification certificate. It may also be taken into consideration that the controversy in the case revolves around tampering of the appellant's date of birth and not his educational qualification, thus it is the 'Date of Birth Certificate' Mark "Q" that assumes greater significance. Though the school leaving certificate also bears the date of birth but entries to that effect are subservient to the entries borne in the birth record. 19. The prosecution case set up in the Challan is that, "from the investigation, it was found that Mustan Shah, Teacher, I/C Admission/Record Government High School Bharooti, tampered with Entry No. 346 of the Admission and Withdrawal register and Entry No. 142 of the Date of Birth Register with criminal intent to issue the birth certificate in favour of Mohammed Adrees". This indicates that the tampering of the school record, if at all done, was executed prior to issuance of the certificate. If that be so, then the said witnesses could not credibly depose that they checked and countersigned the certificate free from cuttings or over writings. 20. In a bid to gauge the correctness of the allegations of forgery, the evidence brought on record on this count is required to be referred. PW Mohd. Suleiman Headmaster deposed during trial, an application for the issuance of the certificate was brought before him, which he forwarded to the concerned teacher Mustan Shah, who, being in charge of the record, prepared the certificate which was checked by PW Shabbir and signed by him after comparison with the original, free from any cutting or overwriting on the original record or the certificate Mark "R" issued to Mohd. Adrees. PW Shabbir also stated that the certificate Mark "R" was prepared by Mustan Shah, checked by him and countersigned by the headmaster Suleiman. Both of these witnesses do not utter a word about the certificate Mark "Q" which being the original record of birth, constitutes the genesis of the controversy. The depositions of PW Shabbir Hussain and PW Mohd. Suleiman purported to cast the impression that tampering in the record was carried out subsequent to the issuance of the cutting-free certificates, which is contrary to the prosecution's allegation against Mustan Shah. The witnesses seem to have attempted to put the cart in front of the horse, making their testimonies doubtful. 21. As the moot controversy in the case has been generated by PW Mehra's letter questioning the authenticity of the date of birth as contained in the certificate Mark "Q", the issue needs to be examined in the light of the evidence brought on file. Both Mohd. Suleiman, the headmaster, and Shabbir Hussain have not stated anything about the said certificate. In this regard, the testimony of PW Rehman may be usefully referred to. He has unambiguously stated that he, being the custodian of the record, was responsible for the issuance of the birth certificates, and it was he who issued the certificate in favour of Mohd. Adrees, which was prepared and signed by him. He has also stated that the application EXPW-MS for issuance of the certificate was in his custody and was seized from him pursuant to seizure memo EXPW-AR. On the contrary, PW Mohd. Suleman, has stated that he had forwarded the application EXPW-MS to the concerned teacher i.e. Mustan Shah, who had prepared the certificate Mark "R" and issued it free of cutting. PW Suleiman sounds entirely untruthful for the reason that how could the application EXPW-MS that he claims to have forwarded to the appellant/accused Mustan Shah, for issuance of a certificate land in the hands of PW Abdul Rehman, upon which he not only issued a certificate but it was seized from his custody? It may also be observed that the seizure memo EXPW-AR does not indicate in any manner that the seized record was tampered with. On the contrary, PW Abdul Rehman has unambiguously deposed during the trial that he was not shown the record seized from him vide seizure memo EXPW-AR. It may also be observed that the seizure memo EXPW-AR does not indicate in any manner that the seized record was tampered with. On the contrary, PW Abdul Rehman has unambiguously deposed during the trial that he was not shown the record seized from him vide seizure memo EXPW-AR. It was the duty of the prosecution to present the seized record before the court and draw the witness's attention for comparison with the allegedly tampered certificate to elicit crucial evidence, if any, but it miserably failed to do so. 22. In fact, it was not the case of the prosecution at any stage that they verified the original record with respect to the date of birth or admission of Appellant No. 2 and found it tampered with. If it were tampered, its custodian, Abdul Rehman, ought to have been arraigned as an accused for so doing or for surrendering its possession to someone else for doing so as a complacent. There is also no allegation or proof thereof that the certificate Mark "Q" was compared with the basic original birth record held by Abdul Rehman and found to be tampered. In the absence of certificate Mark "Q" having been proven as tampered by leading cogent evidence, the allegation of tampering of certificate Mark "R" is bound to land in a fiasco and become irrelevant and inconsequential. It is so because entries with respect to the date of birth contained in certificate Mark "R" are supposed to be a reflection of the information contained in the original record of certificate Mark "Q". When the authenticity and genuineness of the original birth record and the certificate issued pursuant thereto are intact, the school leaving certificate Mark "R' bearing the same date of birth cannot be genuinely alleged to be tampered. 23. Another notable facet of the case pertains to the issuance of the school leaving certificate, Mark "R". Who applied for it or to whom it was issued, is not known? The only application attributed to the applicant for the issuance of the certificate was found in the custody of PW Abdul Rehman that pertained to the certificate Mark "Q". There is nothing on the record to show that any application, ever reached the appellant, Mustan Shah, for the issuance of certificate Mark "R" as stated by headmaster Suleiman. The only application attributed to the applicant for the issuance of the certificate was found in the custody of PW Abdul Rehman that pertained to the certificate Mark "Q". There is nothing on the record to show that any application, ever reached the appellant, Mustan Shah, for the issuance of certificate Mark "R" as stated by headmaster Suleiman. In response to a pointed question asked in this behalf under section 342 Cr.P.C., Appellant No. 2 denied having applied for or received any certificate. There is also no documentary evidence in the form of an order or an extract from an order book maintained at the school, to prove that Mustan Shah was actually entrusted with any record at the relevant time. On the contrary, the headmaster, Suleiman, has admitted that the record of the certificate Mark "R" was entrusted to the appellant teacher subsequently. 24. No effort was made by the police to avail themselves of the expertise of the FSL to prove the similarity of handwriting or signatures to connect Mustan Shah with the crime. In cases where there is no claim that he had assistance, the same may have been done to demonstrate that appellant Adrees actually wrote the unsigned application that was attributed to him. In this direction, a reference may be usefully made to a judgment of this Court in the case of "State v. Chaman Lal Ganjoo," [Crl. Acquittal Appeal No. 74 of 2007, decided on May 25, 2009]. Emphasizing the need to utilize expert opinion, the Court held that: "Investigation officer was further duty bound in such type of case to send the original certificate to the expert for obtaining an expert opinion as to whether any mutilation has been effected in the matriculation certificate of the respondent, so far it pertains to his date of birth. The investigation officer having not chosen to follow the right course has failed in conducting the investigation in accordance with law." 25. Assigning any credence to the inconsistent statements of PWs Suleiman and Shabbir would be too unsafe, a proposition to fit in the frame of a fair dispensation of justice in the case. The investigation officer having not chosen to follow the right course has failed in conducting the investigation in accordance with law." 25. Assigning any credence to the inconsistent statements of PWs Suleiman and Shabbir would be too unsafe, a proposition to fit in the frame of a fair dispensation of justice in the case. Instead of founding the case on the shallow statements of such untrustworthy witnesses, the police ought to have taken steps to avail themselves of the services of FSL for expert opinion to ascertain the role of the appellants in the application, preparation and delivery of the certificate in favour of Mohd. Adrees. The testimony of the IO is also inconsequential. He did not even go to the spot to collect the record. He took no steps for identification of the appellant Mohd. Adrees. There is no evidence on record to show that the name "Adrees" being discussed in the case actually belongs to any living person or not because the certificates pertain to some "Idrees". No witness has identified the appellant as an accused nor any documentary evidence has been presented in this regard. 26. Thus, the inevitable conclusion is that there is no legal evidence to prove that the appellant actually used any forged document at any point in time. The offence punishable under section 471 of the RPC, presupposes using as genuine any forged document. The crux of the provision is the use of the document. Even if a person has in his possession a forged document but has made no use of it, he may not be held guilty under this section. Unless and until the appellant with the required mens rea does not do an overt act, the offence is not completed. The evidence in respect of the aforesaid offence falls short of sustaining an order of conviction on the aforesaid count. 27. In the case titled 'Romesh Chander v. State' (Cr. Appeal No. 10/1997 decided on 20 May 2003 -JKJ ONLINE 8904) while dealing with the application of Section 471 RPC, this Court has held in para 14, as under: "In order to sustain a conviction under this section, the accused must have not only used the forged document as genuine but must have used the document fraudulently or dishonestly, otherwise the accused cannot be credited with the requisite means-rea. The burden is always on the prosecution to prove the essential ingredients of S. 471 RPC viz. knowledge or reasonable belief on the part of a person using the document that the document is a forged one; and fraudulent or dishonest use of a document as genuine. There is absolutely no evidence brought on record by the prosecution to show that the accused had fraudulent or dishonest use as genuine, the forged document, matriculation certificate and derived benefit out of it and causes wrongful gain or wrongful loss. It may be pointed out at the threshold that there is no direct evidence against the accused to link him with the commission of offence. The entire prosecution case hinges on circumstantial evidence. In case of circumstantial evidence every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link must be forged firmly by credible testimony of the witnesses so as to form a strong chain of sure guilt binding the accused. Each link taken separately may suggest but when hooked on to the next and on again may manacle the accused inescapably, only then the concatenation of incriminating facts are sufficient to convict the accused, short of that is insufficient. In other words, all the incriminating facts and circumstances, in order to justify the inference of guilt must be incompatible to the innocence of the accused. Circumstantial evidence, indicates the truth more unerringly than direct evidence." 28. Needless to reiterate, an accused can be convicted and punished only when, by leading cogent evidence, the prosecution proves its case to the hilt. The evidence must be of sterling quality and should be of such a nature that a conclusion can be drawn that appellants and appellants alone 'must' have committed the offence and not that appellants perhaps or might have committed the offence. The prosecution could not satisfy the aforesaid litmus test in the instant case. 29. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Apex Court held as under: "The facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Apex Court held as under: "The facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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." "Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence." 30. The learned trial judge has based the conviction of the appellants on a misreading of evidence, presumptions, surmises and conjunctures. The presumption of innocence is a legal principle that beholds that every person accused of any crime is to be treated as innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is always on the prosecution, which never shifts to the accused at any stage of the case except for matters arising out of such statutes, which by explicit provisions make shifting of the onus permissible. The observations of the Hon'ble Apex Court made in this respect while reiterating in earlier judgments, in the case titled 'Harbeer Singh v. Sheeshpal' reported as AIR 2016 SC 4958 may be referred to as follows: "11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 ; State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 ; Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 ; Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. v. State of Assam & Anr., (2015) 11 SCC 242 ]. 31. The learned trial court, on the basis of a misplaced notion of law and approach, proceeded to draw a presumption against the appellants on the basis of non-existent circumstances and facts. There was no evidence on record that the registers, which had or should have had the original entries with respect to date of birth, were tampered with. There was no evidence as to who had tampered with the registers. There was also no evidence in law to suggest any tampering, much less prove the same with respect to the two certificates. There was no evidence to prove that the appellant applied for or obtained the certificates. There was also no evidence of the appellant's participation in the selection process, his selection pursuant to such a process, or the submission of alleged certificates for appointment. The law mandates that the case of the prosecution must stand on its own legs; the burden of proof is always on the prosecution, and it cannot take support from the weaknesses of the defence. A judgment of the Hon'ble Supreme Court in the case of 'Narender Kumar v. State (NCT of Delhi)' reported as (2012) 7 SCC 171 reiterates that even in an offence of rape that tends to impact society at large, deviation from the basic principle of our criminal jurisprudence is impermissible. The relevant portion thereof may be fruitfully referred to as follows: "23... The relevant portion thereof may be fruitfully referred to as follows: "23... However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra, AIR 1979 SC 185 ; and Uday v. State of Karnataka, AIR 2003 SC 1639 ). 32. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. It appears that the Trial Court has misdirected itself while appreciating the evidence brought on record. Another notable feature of this case is that once the Trial Court charged appellant no. 2 to have used a forged document, abetted and cheated when he was below the age of majority, his trial could only be conducted in terms of Juvenile Justice Act/Law, before the Juvenile Justice Board and not before the Trial Court. Therefore, his trial before Sessions Court was not competent. However due to much efflux of time and not being objected to by respondent no. 2, his retrial shall not be in the interest of justice, by the competent forum. 33. Having regard to the aforestated discussion and application of the law as interpreted by the aforestated judgments to the facts of the case, and the evidence on record, appellants' conviction is held to be not sustainable. 2, his retrial shall not be in the interest of justice, by the competent forum. 33. Having regard to the aforestated discussion and application of the law as interpreted by the aforestated judgments to the facts of the case, and the evidence on record, appellants' conviction is held to be not sustainable. The appellants, as such, are entitled to be acquitted of all the charges. 34. For the foregoing reasons, discussion, and observations made hereinabove, it is held that prosecution failed to bring home the charge against the accused/appellants for the commission of the offences under charges. As a result, the appeal along with pending application(s) is allowed. Impugned judgment/order are thus set aside. Appellants are acquitted of all the charges. Their bail/personal bonds are discharged. 35. Trial court record along with a copy of this judgment, shall be sent down to the Sessions Court for information.