# Indra Pratap Tiwari v. State of U.P

- **Citation:** (2023) 3 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Criminal Appeal No. 1588 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-pratap-tiwari-v-state-of-u-p-49807
- **Pages:** 12

## Headnote

Law-Code
of
Criminal
Procedure,1973- Sections 154, 221 & 223-
The Indian Evidence Act, 1872- Section
65-Accused-Appellants taken admission
on the basis of forged mark-sheetsConviction U/s 420, 468 ,471 of IPC-
Evidence of the prosecution witnesses had
gone un-rebutted - Nothing in their
testimony which would suggest that they
have any axe to grind against the
accused-appellants or they were falsely
deposing-No
objection
regarding
the
admissibility of the documents were taken
during trial and the documents were
proved by the witnesses, not open for
them to take such objection in the appeal
-The accused-appellants are not in a
position to say that they were prejudiced
in any manner by common FIR, one
charge sheet and same charge for all three
accused-appellants
and
one
trial-The
allegations are identical, witnesses were
common, who had proved the documents
and deposed in support of the charge.
(Para 21, 22, 29, 30, 31)

The Indian Penal Code-1860-Sections 420,
468 & 471- Except technical ground no
argument has been advanced that the
offences under Sections 468, 471 and 420
IPC are not attracted.

Appeal dismissed. (E-15)
708 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

3 All. Indra Pratap Tiwari Vs. State of U.P.
707
also be taken into consideration but then in
respect thereof, it is trite, the standard of
burden of proof on the accused vis-à-vis the
standard of burden of proof on the
prosecution would differ. Before, however,
the accused is called upon to explain as to
how the amount in question was found in his
possession, the foundational facts must be
established by the prosecution. Even while
invoking the provisions of Section 20 of the
Act, the court is required to consider the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of
proof beyond all reasonable doubt."

33. Considering the evidence on
record, I am of the view that the
prosecution has been able to discharge its
burden and laid down the foundational
facts regarding the charge of the demand
and acceptance of bribe-amount by the
accused-appellant from the complainant
whereas the accused-appellant has not been
able to discharge his burden of tainted
money found in the drawer of his office
table. In view thereof, I find that the appeal
has no merit and substance, which is
hereby dismissed.

34. The accused-appellant is on bail.
His bail bonds are cancelled. Sureties are
discharged.
The
accused-appellant
is
directed to be taken in custody forthwith to
undergo the sentence. Let the trial Court
record be remitted back to the learned trial
Court forthwith.
----------
(2023) 3 ILRA 707
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.
Criminal Appeal No. 1588 of 2021
Connected With
Criminal Appeal No. 1761 of 2021 & 1837 of
2021

Indra Pratap Tiwari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Dhirendra Kumar Mishra, Ishan Baghel,
Manoj
Kumar
Mishra,
Salil
Kumar
Srivastava

Counsel for the Respondent:
G.A., Anuj Pandey, Ashok Pande, Sushil
Kumar Singh

Criminal
Law-Code
of
Criminal
Procedure,1973- Sections 154, 221 & 223-
The Indian Evidence Act, 1872- Section
65-Accused-Appellants taken admission
on the basis of forged mark-sheetsConviction U/s 420, 468 ,471 of IPC-
Evidence of the prosecution witnesses had
gone un-rebutted - Nothing in their
testimony which would suggest that they
have any axe to grind against the
accused-appellants or they were falsely
deposing-No
objection
regarding
the
admissibility of the documents were taken
during trial and the documents were
proved by the witnesses, not open for
them to take such objection in the appeal
-The accused-appellants are not in a
position to say that they were prejudiced
in any manner by common FIR, one
charge sheet and same charge for all three
accused-appellants
and
one
trial-The
allegations are identical, witnesses were
common, who had proved the documents
and deposed in support of the charge.
(Para 21, 22, 29, 30, 31)

The Indian Penal Code-1860-Sections 420,
468 & 471- Except technical ground no
argument has been advanced that the
offences under Sections 468, 471 and 420
IPC are not attracted.

Appeal dismissed. (E-15)
708 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1.
Muddasani
Venkata
Narasaiah
(Dead)
through Legal Representatives Vs Muddasani
Sarojana (2016) 12 SCC 288

2. R.VSE. Venkatachala Gounder Vs Arulmigu
Viswesaraswami & VSP. Temple and another,
(2003) 8 SCC 752: AIR 2003 SC 4548

3. P.C. Purushotham Reddiar Vs VSS. Perumal
(1972) 1 SCC 9: AIR 1972 SC 608

4. Smt. Sudha Agarwal Vs VIth Additional
District Judge, Ghaziabad, 2006 (3) ADJ 429

5. Behari Prasad & ors.Vs St. of Bihar (1996)
SCC (Cri) 271

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present three appeals under
Section 374(2) Cr.P.C. have been instituted
against the common judgement and order
dated 18.10.2021 passed by the learned
Special
Judge
(MP/MLA)/Additional
Sessions Judge, Court No.3, Faizabad in
Special Case No.3012 of 2018 (State Vs.
Phool Chandra Yadav and others), arising
out of Case Crime No.24 of 1992, Police
Station
Ram
Janam
Bhumi,
District
Faizabad, whereby the learned trial court
has convicted and sentenced the accusedappellants as under:-

U/s
420
I.P.C.
three
years
imprisonment and fine of Rs.6,000/- each
and in default of payment of fine, eighteen
days additional simple imprisonment; and

U/s
468
I.P.C.
five
years
imprisonment and fine of Rs.8,000/- each
and in default of payment of fine, twenty
days additional simple imprisonment.

U/s
471
I.P.C.
two
years
imprisonment and fine of Rs.5,000/- each
and in default of payment of fine, fifteen
days additional simple imprisonment.

Facts:-

2. The prosecution case, in brief, is
that
the
Principal
of
K.S.
Saket
Postgraduate
College,
Faizabad,
Sri
Yaduvansh Ram Tripathi gave a complaint
to the Senior Superintendent of Police,
Faizabad on 16.2.1992 alleging that in his
previous letter dated 14.2.1992 in respect
of the accused-appellants, he informed that
they had taken admission on the basis of
the forged mark-sheets. It was alleged that
accused-appellant Phool Chandra Yadav
S/o Tilakdhari Yadav had failed in B.Sc
Part-I examination in 1986 having Roll
No.60999 and despite writing back papers,
he could not clear the examination of the
B.Sc Part-I and, therefore, he was not
eligible to take admission in B.Sc Part-II,
but
by
forging
the
mark-sheet
and
fabricating the documents in criminal
conspiracy, he had obtained a forged marksheet of clearing B.Sc Part-I. Copy of the
result of back paper of 1986 examination,
of which the accused Phool Chandra Yadav
had fabricated his marks to declare himself
passed, was also annexed with the letter.
On the basis of this forged and fabricated
mark-sheet, he got admission in B.Sc PartII for the academic session 1986-87, and
the then Principal of the College had
approved the admission form of the said
accused-appellant. A copy of the admission
form verified by the then Principal of the
College was also attached with the said
letter.

3. Accused-appellant, Indra Pratap
Tiwari had appeared in B.Sc Part-II
examination in the year 1990 as ex-student
with Roll No.4263. He failed in the said
examination. Despite having got failed in
B.SC Part-II examination, the accusedappellant, Indra Pratap Tiwari submitted a
forged mark-sheet allegedly issued by the
3 All. Indra Pratap Tiwari Vs. State of U.P.
709
University dated 8.12.1990 and took
admission in B.Sc Part-III for the academic
session 1990-91. Copy of the said forged
mark-sheet was annexed with the letter. He
was given a show cause notice by the
College, but no reply was given to the said
notice and, thereafter, his admission in
B.Sc Part-III was cancelled and his election
to the post of Secretary of the student union
was also declared as illegal. Copy of the
said order of cancelling admission in B.Sc
Part-III and his election to the post of
Secretary of the student union of accusedappellant, Indra Pratap Tiwari was also
annexed with the letter of the Principal of
the College.

4. In the said letter, it was further
alleged that the accused-appellant, Kripa
Nidhan Tiwari had given examination of
LLB Part-I in the year 1989 with Roll
No.51570,
but
he
was
unsuccessful.
Despite having got failed in LLB Part-I
examination, he on the basis of the forged
mark-sheet
allegedly
issued
by
the
University, took admission in LLB Part-II
for the academic session 1989-90 on
11.3.1991. Copy of the forged mark-sheet
and the admission form were annexed with
the letter. When the Principal got to know
about this forgery, he gave a show cause
notice to Kripa Nidhan Tiwari, but he did
not give any reply to the said notice and,
thereafter, his admission in LLB Part-II
was cancelled.

5. On the basis of the abovementioned facts, the Principal requested the
Senior Superintendent of Police, Faizabad
to take appropriate legal action against
these three accused-appellants, who had
taken admission on the basis of the forged
and fabricated mark-sheets/documents and
played
fraud
with
the
college
administration and the University.

6. On this letter, the Senior
Superintendent of Police, Faizabad on
18.2.1992 directed the Station House
Officer, Police Station Ram Janam Bhumi,
Ayodhya to register a case and investigate
the offence. In pursuance to the said
direction, FIR at Case Crime No.24 of
1992, under Sections 420, 467, 468, 471
IPC against the three accused-appellants
came to be registered at Police Station Ram
Jhanam Bhumi, Ayodhya.

7. The Investigating Officer after
completing the investigation, filed the
charge sheet against the three accusedappellants under Sections 468, 471 and 420
IPC on 19.7.1996. After taking cognizance,
the accused-appellants were summoned on
4.9.1996. However, the charges could be
framed only on 9.12.2019 by the learned
Special Judge (MP/MLA), Court No.1,
Faizabad, which would read as under :-

"(i) That before 18.2.1992 on
different occasions Phool Chandra Yadav
despite having got failed in B.Sc Part-I
examination in 1986 from K.C. Saket
Postgraduate
College,
Accused
Indra
Pratap Tiwari having got failed in B.Sc
Part-II examination in 1990 and accused
Kripa Nidhan Tiwari having got failed in
LLB Part-I examination in 1989, by playing
fraud, prepared forged mark-sheets to have
passed in these examinations. Thus, the
said act of the accused is an offence
punishable under Section 468 IPC, for
which the cognizance has been taken by the
court.

(ii) That despite knowing the fact
that these mark-sheets were forged, the
accused Phool Chandra Yadav, on the
basis of the forged mark-sheet, took
admission in B.Sc Part-II, Indra Pratap
Tiwari in B.Sc Part-III and Kripa Nidhan
Tiwari in LLB Part-II and, this act of the
710 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellants
was
an
offence
punishable under Section 471 IPC and the
court has taken cognizance for the said
offence.

(iii) That on the basis of the
forged mark-sheets, the accused-appellants
had taken admission in the next class by
cheating the college and such offence is
punishable under Section 420 IPC, for
which the court has taken cognizance."

8. The accused denied the charges and
claimed trial.

Evidence:-

9. The prosecution to prove its case,
examined
three
witnesses.
P.W.-1
Mahendra Kumar Agarwal, P.W.-2, Ram
Bahadur Singh and P.W.-3 Srikant Pathak.

10. P.W.-1 Mahendra Kumar Agarwal
in his examination-in-chief said that he was
appointed in the college on 1.10.1966. In
the year 1992, Sri Yaduvansh Ram Tripathi
was the Principal of the K.S. Saket
Postgraduate College. At the relevant time,
the witness was working as Office
Superintendent
of
the
College.
The
accused-appellant, Kripa Nidhan Tiwari
was the student of LLB Part-I and, as per
the tabulation register of the college, he
could secure only 120 marks in all the
seven papers and was failed. Similarly,
Accused-appellant, Indra Pratap Tiwari and
Phool Chandra Yadav had also failed in
B.Sc Part-II and B.Sc Part-I examinations
in 1990 and 1986 respectively. He further
said that the Investigating Officer came to
the college for the purposes of the
investigation and he showed him the
tabulation register. He also said that he
knew the hand writing and signature of the
then
Principal,
Dr.
Yaduvansh
Ram
Tripathi. He proved Paper Nos.4A/6 and
6A/1, 6A/3 and 6A/5 and 6A/7, on which
there were signatures of Dr. Yaduvansh
Ram Tripathi, the then Principal. These
papers were marked as Ext.Ka-1 to Ext.
Ka-7. The witness said that all the three
accused-appellants had taken admission on
the basis of forged mark-sheets in the next
class. He further said that the Office
Assistant, Guru Charan Yadav working
with
him,
had
died.
He
gave
the
information to the Investigating Officer on
the basis of the tabulation register of the
college.

11. P.W.-2, Ram Bahadur Singh in his
examination-in-chief said that in the year
1992, he was working as Senior Assistant
(Confidential)
in
Awadh
University,
Faizabad. Dr. Yaduvansh Ram Tripathi, the
then Principal of K.S. Saket Postgraduate
College, Faizabad had requested him for
furnishing information regarding the results
of the examination of the three students,
Phool Chandra Yadav, Indra Pratap Tiwari
and
Kripa
Nidhan
Tiwari,
accusedappellants. He said that after examining the
record
of
the
University,
he
sent
verification of the results of the three
students. Certified copy of the papers sent
by him to the College i.e. 6A/1, 6A/3, 6A/6
and 6A/7 were verified by the witness.

12. P.W.-3, Srikant Pathak in his
examination-in-chief
said
that
Head
Moharrir Shivaji Mishra was posted with
him in Districts Faizabad and Barabanki.
He had seen the hand writing and
signatures of the Head Moharrir Shivaji
and he was fully aware of his hand writing
and signature. He further said that Paper
Nos.4A/1 and 4A/2 were in the hand
writing and signature of Head Moharrir
Shivaji
Mishra
and
he
verified
his
signatures. These papers were marked as
Ext.Ka-8. He further said that Sub-
3 All. Indra Pratap Tiwari Vs. State of U.P.
711
Inspector Ram Chandra Singh was posted
with him in District Gonda, and he had
seen him writing and he knew the
signatures of Sri Ram Chandra Singh. He
was fully aware of the hand writing and
signature. He further said that Paper
No.3A/1, Charge Sheet No.11 dated
20.1.1996 was in the hand writing and
signature of Sub-Inspector, Ram Chandra
Singh and he verified the same and marked
as Ext.Ka-9.

13. After the evidence of the
prosecution got over, statements of the
accused-appellants
under
Section
313
Cr.P.C. were recorded. They denied the
evidence and circumstances against them
and said that they had been falsely
implicated because of enmity. They were
innocent. However, the accused-appellants
did not lead any defence evidence oral or
documentary.

14. The trial court after analyzing the
evidence on record and considering the
entire facts and circumstances of the case,
convicted and sentenced the accusedappellants as mentioned above.

Submissions:-

15. Sri I.B. Singh, learned Senior
Advocate, assisted by Sri Ishan Baghel, Dr.
Salil Kumar Srivastava and Sri Diwakar
Singh, for the accused-appellants has
submitted that a common FIR was lodged
in respect of the three different incidents
and in respect of the three different
accused, and a common charge sheet was
filed against the three accused, on which
the common charges were framed. He has
further submitted that there was no
allegation of criminal conspiracy and
abetment among the three appellants.
Accused-appellants
are
the
three
individuals and as per Section 154 Cr.P.C.,
the FIR should relate to one offence and
not many offences, which are not part of
the one transaction and not related to each
other. It is submitted that under Sections
221 and 223 Cr.P.C. separate charges
should be framed against separate persons
and
the
trial
should
be
conducted
separately.
However,
the
accusedappellants were tried jointly in violation of
the said procedure. It has further been
submitted that conviction of the accusedappellants is based upon using the forged
mark-sheets to get admission in the next
class. Only photocopies of the mark-sheets
allegedly forged by the accused-appellants
were produced before the trial court. The
originals were never produced before the
trial court. The documents produced before
the trial court were not proved in
accordance with the provisions of the
Indian Evidence Act. The learned trial
court had convicted the accused-appellants
on the basis of the secondary evidence in
gross violation of Section 65 of the Indian
Evidence Act. The accused-appellants had
been tried and convicted together in
violation of the procedure established by
law,
which
vitiated
the
entire
trial
proceedings.

16. On the other hand, Sri U.C.
Verma, learned AGA, assisted by Sri Rao
Narendra
Singh,
learned
AGA,
has
submitted that the accused-appellants had
never
taken
objection
regarding
the
admissibility of the documentary evidence,
which was produced by the prosecution and
proved by the witnesses. No objection
whatsoever was taken by the accusedappellants during trial. They have never
denied that these were not the mark-sheets
and admission forms submitted by them for
taking admission in the next class. When
the accused-appellants have never denied
712 INDIAN LAW REPORTS ALLAHABAD SERIES
the existence of the documents on the basis
of which they took admission in the next
class, and they never took objection, it is
not open for them to take this objection at
this stage of the appeal. It is further
submitted that the accused-appellants have
also not taken any objection in respect of
their trial together or lodging of one FIR or
framing of common charge for the offence
under Sections 468, 471 and 420 IPC.

17. Learned AGA has further
submitted that the accused-appellants may
be different, but they had committed
identical offence by taking admission in the
next class on the basis of the forged and
fabricated documents and by cheating the
College. It is also submitted that three
witnesses have fully proved the prosecution
case against the accused-appellants. When
the accused-appellants had not taken the
objection which they are taking here, their
objections are to be rejected. It is further
submitted that the documents have been
duly proved by the witnesses as they knew
the authors of the documents. The Principal
himself was no more when the trial
commenced and other witnesses had also
died. It is also submitted that accusedappellant, Indra Pratap Tiwari is a Mafia,
gangster and dreaded criminal and his
character is also important while deciding
the appeal. The prosecution has brought on
record the criminal history of the accusedappellant, Indra Pratap Tiwari, which
would read as under:-

"1. Case Crime No.258 of 1991,
under Sections 1478, 148, 149 and 307 IPC,
Police Station Ram Janam Bhumi, Ayodhya;

2. Case Crime No.20 of 1992,
under Sections 379, 427, 436, 454, 451,
504 and 186 IPC, Police Station Ram
Janam Bhumi, Ayodhya;

3. Case Crime No.24 of 1992,
under Sections 420, 467, 468 and 471 IPC,
Police
Station
Ram
Janam
Bhumi,
Ayodhya;

4. Case Crime No.68 of 2012,
under Sections 147, 148, 323, 504, 506 and
427 IPC, Police Station Maharajganj,
Ayodhya;

5. Case Crime No.1352 of 1991,
under Sections 147, 148, 323 and 504 IPC,
Police Station Kotwali Nagar, Ayodhya;

6. Case Crime No.397 of 1993,
under Sections 147, 148, 149 and 302 IPC,
Police Station Kotwali Nagar, Ayodhya;

7. Case Crime No.776 of 1995,
under Section 3 Goonda Act, Police Station
Kotwali Nagar, Ayodhya;

8. Case Crime No.618 of 1995,
under Sections 147, 148, 149 and 307 IPC,
Police Station Kotwali Nagar, Ayodhya;

9. Case Crime No.286 of 1997,
under Section 302 IPC, Police Station
Kotwali Nagar, Ayodhya;

10. Case Crime No.1684 of 1997,
under Section 3(1) of U.P. Gangster Act,
Police Station Kotwali Nagar, Ayodhya;

11. Case Crime No.771 of 1996,
under Sections 392, 411 and 504 IPC,
Police Station Kotwali Nagar, Ayodhya;

12. Case Crime No.981 of 1999,
under Sections 147, 148, 149, 120-B and
302 IPC, Police Station Kotwali Nagar,
Ayodhya;

13. Case Crime No.1150 of 1999,
under Sections 504 and 506 IPC, Police
Station Kotwali Nagar, Ayodhya;

14. Case Crime No.1593 of 1999,
under Section 3(1) of U.P. Gangster Act,
Police Station Kotwali Nagar, Ayodhya;

15. Case Crime No.824 of 1997,
under Section 3⁄4 Gooda Act, Police Station
Kotwali Nagar, Ayodhya;

16. Case Crime No.2157 of 2001,
under Sections 143, 504, 427, 386 IPC and
3 All. Indra Pratap Tiwari Vs. State of U.P.
713
Section 3(1) of U.P. Gangster Act, Police
Station Kotwali Nagar, Ayodhya;

17. Case Crime No.2234 of 2001,
under Sections 353, 504 and 506 IPC,
Police Station Kotwali Nagar, Ayodhya;

18. Case Crime No.814 of 2002,
under Sections 147, 323, 386 IPC and
Section 3(1) U.P. Gangster Act, Police
Station Kotwali Nagar, Ayodhya;

19. Case Crime No.1658 of 2002,
under Sections 386, 504 and 506 IPC,
Police Station Kotwali Nagar, Ayodhya;

20. Case Crime No.2256 of 2002,
under Sections 323 and 506 IPC, Police
Station Kotwali Nagar, Ayodhya;

21. Case Crime No.2724 of 2002,
under Sections 3⁄4 Goonda Act, Police
Station Kotwali Nagar, Ayodhya;

22. Case Crime No.240 of 2005,
under Section 298 Nagar Palika Act and
Sections 341 and 506 IPC, Police Station
Kotwali Nagar, Ayodhya;

23. Case Crime No.220 of 1994,
under Sections 147, 148, 149 and 307 IPC,
Police Station Kotwali Nagar, Ayodhya;

24. Case Crime No.828 of 1997,
under Section 3⁄4 Goonda Act, Police
Station Kotwali Nagar, Ayodhya;

25. Case Crime No.417 of 1993,
under Sections 307 and 506 IPC, Police
Station Kotwali Ayodhya, Ayodhya;

26. Case Crime No.418 of 1993,
under Sections 147, 148, 149 and 307 IPC,
Police Station Kotwali Ayodhya, Ayodhya;

27. Case Crime No.419 of 1993,
under Section 25 Arms Act, Police Station
Kotwali Ayodhya, Ayodhya;

28. Case Crime No.6 of 1997,
under Sections 147, 148, 149, 120-B and
302
IPC,
Police
Station
Khandasa,
Ayodhya;

29. Case Crime No.9 of 1997,
under Sections 504 and 506 IPC, Police
Station Khandasa, Ayodhya;

30. Case Crime No.19 of 2002,
under Sections 110-G Cr.P.C., Police
Station Poorakalander, Ayodhya;

31. Case Crime No.431 of 2001,
under Section 3(1) U.P. Gangster Act,
Police Station Poorakalander, Ayodhya;

32. Case Crime No.131 of 2005,
under Sections 147, 148, 308, 323, 504 and
506 IPC and Section 7 Criminal Law
Amendment
Act,
Police
Station
Poorakalander, Ayodhya;

33. Case Crime No.105 of 1996,
under Sections 323, 504 and 506 Police
Station Gosainganj, Ayodhya;

34. Case Crime No.387 of 1986,
under Sections 324, 323, 504 and 506 IPC,
Police Station Gosainganj, Ayodhya; and

35. Case Crime No.620 of 2005,
under Sections 147, 323, 504 and 506
IPC,
Police
Station
Gosainganj,
Ayodhya."

18. Similarly other two accusedappellants, Phool Chandra Yadav and
Kripa Nidhan Tiwari also had some other
cases to their credit, which would read as
under:-

"1. Case Crime No.16 of 1991,
under Sections 323, 504 and 506 IPC,
Police
Station
Ram
Janam
Bhumi,
Ayodhya;

2. 1. Case Crime No.20 of 1992,
under Sections 379, 427, 436, 454, 451,
504 and 186 IPC, Police Station Ram
Janam Bhumi, Ayodhya; and

3. Case Crime No.24 of 1992,
under Sections 420, 467, 468 and 471 IPC,
Police
Station
Ram
Janam
Bhumi,
Ayodhya. And

1. Case Crime No.104 of 1992,
under Section 323 IPC and Sections 145
and 146 R.A. Act, Police Station G.R.P.
Faizabad, Ayodhya."
714 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Except for raising technical
grounds, no argument has been advanced
that the offences under Sections 468, 471
and 420 IPC are not attracted against the
accused-appellants.
Therefore,
these
technical arguments are liable to be
rejected.

20. I have considered the arguments
advanced by the learned counsel for the
parties as well as perused the judgement
and order of the learned trial court and the
evidence on record.

21. P.W.-1 Mahendra Kumar Agarwal
and P.W.-2 Ram Bahadur Singh have
proved
the
forged
mark-sheets
and
admission forms of the accused-appellants,
on the basis of which they had taken
admission. There is nothing in their
testimony which would suggest that they
have any axe to grind against the accusedappellants or they were falsely deposing.
P.W.-1 Mahendra Kumar Agarwal, who
was working as Office Superintendent in
the college, had specifically deposed that
from the tabulation register of the college
and the marks obtained by the students, it
was evident the three accused-appellants
had failed in B.Sc Part-I, B.Sc Part-II and
LLB Part-I respectively. However, they had
taken admission in the next class on the
basis of the forged and fabricated mark
sheets. There is no suggestion put by the
defence to the said witness that these
accused had not submitted these marksheets (forged one) for taking admission in
the next class. The evidence of the
prosecution witnesses had gone un-rebutted
and, this Court finds that their testimony
was cogent and credible to bring home the
charge against the accused-appellants.
When the accused-appellants had not taken
any
objection
with
respect
to
the
admissibility of the documents during trial
and the documents were proved by the
witnesses, at this stage it is not open for
them to take such objection in the appeal.

22. The cross-examination of the
three witnesses would show that the
accused-appellants had not put their version
in cross-examination of the witnesses.

Case Laws:-

23. The Supreme Court in the case of
Muddasani Venkata Narasaiah (Dead)
through
Legal
Representatives
Vs.
Muddasani Sarojana, (2016) 12 SCC 288
has held that the cross-examination is a
matter of substance and not of procedure.
One is required to put one's own version in
cross-examination of opponent. Paragraph
15 of the judgment which is relevant,
would read as under:-

"15. Moreover, there was no
effective cross-examination made on the
plaintiff's witnesses with respect to factum
of execution of sale deed, PW 1 and PW 2
have not been cross-examined as to factum
of execution of sale deed. The crossexamination is a matter of substance not of
procedure one is required to put one's own
version in cross-examination of opponent.
The effect of non-cross-examination is that
the statement of witness has not been
disputed. The effect of not cross-examining
the witnesses has been considered by this
Court in Bhoju Mandal v. Debnath Bhagat
[Bhoju Mandal v. Debnath Bhagat, AIR
1963 SC 1906] . This Court repelled a
submission on the ground that the same
was not put either to the witnesses or
suggested before the courts below. Party is
required to put his version to the witness. If
no such questions are put the Court would
presume that the witness account has been
accepted as held in Chuni Lal Dwarka
3 All. Indra Pratap Tiwari Vs. State of U.P.
715
Nath v. Hartford Fire Insurance Co. Ltd.
[Chuni Lal Dwarka Nath v. Hartford Fire
Insurance Co. Ltd., 1957 SCC OnLine
P&H 177 : AIR 1958 P&H 440]"

24. The Supreme Court in the case of
R.V.E.
Venkatachala
Gounder
Vs.
Arulmigu
Viswesaraswami
and
V.P.
Temple and another, (2003) 8 SCC 752:
AIR 2003 SC 4548 in paragraph 20 has
held that ordinarily, an objection to the
admissibility of evidence should be taken
when it is tendered and not subsequently.
Once the document has been admitted in
evidence and marked as an exhibit, the
objection that it should not have been
admitted in evidence or that the mode
adopted for proving the document is
irregular cannot be allowed to be raised at
any stage subsequent to the marking of the
document as an exhibit. Paragraph 20 of
the judgment which is relevant, would read
as under:-

"20. The learned counsel for the
defendant-respondent has relied on Roman
Catholic Mission v. State of Madras [AIR
1966 SC 1457] in support of his submission
that a document not admissible in evidence,
though brought on record, has to be
excluded from consideration. We do not
have any dispute with the proposition of
law so laid down in the abovesaid case.
However, the present one is a case which
calls for the correct position of law being
made precise. Ordinarily, an objection to
the admissibility of evidence should be
taken when it is tendered and not
subsequently.
The
objections
as
to
admissibility of documents in evidence may
be classified into two classes: (i) an
objection that the document which is
sought to be proved is itself inadmissible in
evidence; and (ii) where the objection does
not dispute the admissibility of the
document in evidence but is directed
towards the mode of proof alleging the
same to be irregular or insufficient. In the
first case, merely because a document has
been marked as "an exhibit", an objection
as to its admissibility is not excluded and is
available to be raised even at a later stage
or even in appeal or revision. In the latter
case, the objection should be taken when
the evidence is tendered and once the
document has been admitted in evidence
and marked as an exhibit, the objection
that it should not have been admitted in
evidence or that the mode adopted for
proving the document is irregular cannot
be allowed to be raised at any stage
subsequent to the marking of the document
as an exhibit. The latter proposition is a
rule of fair play. The crucial test is whether
an objection, if taken at the appropriate
point of time, would have enabled the party
tendering the evidence to cure the defect
and resort to such mode of proof as would
be regular. The omission to object becomes
fatal because by his failure the party
entitled to object allows the party tendering
the evidence to act on an assumption that
the opposite party is not serious about the
mode of proof. On the other hand, a prompt
objection does not prejudice the party
tendering the evidence, for two reasons:
firstly, it enables the court to apply its mind
and pronounce its decision on the question
of admissibility then and there; and
secondly, in the event of finding of the court
on the mode of proof sought to be adopted
going against the party tendering the
evidence,
the
opportunity
of
seeking
indulgence of the court for permitting a
regular mode or method of proof and
thereby removing the objection raised by
the opposite party, is available to the party
leading the evidence. Such practice and
procedure is fair to both the parties. Out of
the two types of objections, referred to
716 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinabove, in the latter case, failure to
raise a prompt and timely objection
amounts to waiver of the necessity for
insisting on formal proof of a document,
the document itself which is sought to be
proved being admissible in evidence. In the
first case, acquiescence would be no bar to
raising the objection in a superior court.'

25. Similarly, the Supreme Court in
the case of P.C. Purushotham Reddiar Vs.
V.S. Perumal (1972) 1 SCC 9: AIR 1972
SC 608 has held that if the documents are
marked without any objection, it would not
be open to the other party to object their
admissibility. Paragraphs 18 and 19 of the
said judgment is extracted hereunder:-

"18. Now coming to the question
as
to
the
expenditure
incurred
in
connection with those meetings, it is no
doubt for the appellant to prove the same.
According to the respondent he had not
maintained any accounts in connection
with
his
election.
The
expenditure
incurred for his election is specially
within the knowledge of the respondent.
He has not adduced any evidence in that
connection. He has totally denied having
held those meetings. That denial for the
reasons already mentioned cannot be
accepted. Therefore we have now to find
out what would have been the reasonable
expenditure incurred in connection with
those meetings. Even according to the
respondent for the seven meetings held by
him, he incurred an expenditure of more
than Rs 225. That means on an average
he had incurred an expense of about Rs
32 per meeting. This is clearly an
underestimate. But even if we accept that
to be correct, for the four meetings
referred to earlier, he would have
incurred an expenditure of Rs 128. If this
expense is added to the sum of Rs 1886/9
p.
referred
to
earlier,
the
total
expenditure
incurred
exceeds
the
prescribed limit of Rs 2000. Hence the
respondent is clearly guilty of the corrupt
practice mentioned in Section 123(6).

19. Before leaving this case it is
necessary to refer to one of the
contentions taken by Mr Ramamurthi,
learned Counsel for the respondent. He
contended that the police reports referred
to earlier are inadmissible in evidence as
the Head Constables who covered those
meetings have not been examined in the
case. Those reports were marked without
any objection. Hence it is not open to the
respondent now to object to their
admissibility see Bhagat Ram v. Khatu
Ram [AIR 1929 PC 110 : 116 IC 394]."

26. This Court also in the case of Smt.
Sudha Agarwal Vs. VIth Additional
District Judge, Ghaziabad, 2006 (3) ADJ
429 has held that if any party wants to raise
an objection in respect of the admissibility
of secondary evidence, then such objection
should positively be raised at the trial stage
so that the other side should have an
opportunity to remove the deficiency. Once
the document has been admitted in
evidence and marked as an exhibit, the
objection that it should not have been
admitted in evidence or that the mode
adopted for proving the document is
irregular cannot be allowed to be raised at
any stage subsequent to the marking of the
document as an exhibit.

27. It is well settled law that nonexamination of the Investigating Officer is
not fatal to the prosecution case if the
prosecution case is otherwise proved by the
evidence, and the evidence is in conformity
with case made out in the FIR. Mere nonexamination of the Investigating Officer,
the prosecution case should not fail if it is
3 All. Indra Pratap Tiwari Vs. State of U.P.
717
otherwise
proved
by
other
evidence
brought on record.

28. The Supreme Court in the case of
Behari Prasad and others Vs. State of
Bihar (1996) SCC (Cri) 271 in paragraphs
21 and 23 held as under:-

"21. After considering the facts
and circumstances of the case and the
judgments
of
the
learned
Additional
Sessions Judge and of the High Court and
the evidences adduced in the case through
which we have been taken by the learned
counsel for the parties and considering the
submissions made by the learned counsel
for the parties, it appears to us that the
prosecution case has been proved by the
eyewitnesses in this case. Over the shop
room, a long-drawn battle was fought by
the deceased up to this Court. Ultimately,
the delivery of possession of the shop
through court was fixed on the date of
incident. It was, therefore, quite natural
that the said eyewitnesses being close
relations of the deceased were present at
the place and at the time of the incident. In
our view, the learned counsel for the State
is also justified that in the facts of the case
the presence of the daughter of the
accused aged 14 years in the company of
elderly relations was also not unusual.
Accused 2 to 4 and deceased-accused
Rameswar though related to the deceased
had been harbouring ill feeling and
grudge against the deceased. As a matter
of fact, suit for eviction was also filed by
the deceased against Rameswar. It was,
therefore, quite likely that they took side
of Sheoji Prasad in frustrating the
execution of the eviction decree against
Sheoji Prasad. Although, the accused
managed for the time being to frustrate
execution of decree through court by
influencing the Naib Nazir to accept the
case of independent tenancy in favour of
a third party on the face value of the
statement
of
such
tenant
without
ascertaining relevant facts and thereby
sending him back without executing the
decree, the accused were fully aware that
the decree for eviction affirmed up to this
Court was staring on their face. They
were, therefore, quite agitated and it is
not at all unlikely that they became
revengeful against the decree-holder
deceased Ram Babu.

23. It, however, appears to us that
the entire case diary should not have
been allowed to be exhibited by the
learned Additional Sessions Judge. In the
facts of the case, it appears to us that the
involvement of the accused in committing
the murder has been clearly established
by the evidences of the eyewitnesses.
Such evidences are in conformity with the
case made out in FIR and also with the
medical
evidence.
Hence,
for
nonexamination of Investigating Officer, the
prosecution case should not fail. We may
also indicate here that it will not be
correct to contend that if an Investigating
Officer is not examined in a case, such
case should fail on the ground that the
accused were deprived of the opportunity
to effectively cross-examine the witnesses
for the prosecution and to bring out
contradictions in their statements before
the police. A case of prejudice likely to be
suffered by an accused must depend on
the facts of the case and no universal
strait-jacket formula should be laid down
that non-examination of Investigating
Officer per se vitiates a criminal trial.
These appeals, therefore, fail and are
dismissed. The appellants who have been
released on bail should be taken into
custody to serve out the sentence."

Conclusion:-
718 INDIAN LAW REPORTS ALLAHABAD SERIES

29. A document in terms of Section
65 of the Indian Evidence Act is to be
proved by a person, who is acquainted with
the hand writing of the author thereof.
P.W.1 Mahendra Kumar Agarwal, P.W.-2
Ram Bahadur Singh and P.W.-3 Srikant
Pathak have proved the documents i.e.
Paper Nos.4A/6 and 6A/1, 6A/3 and 6A/5
and 6A/6 and 6A/7 as they were acquainted
with the hand writing and signatures of the
then Principal Yaduvansh Ram Tripathi
and the Sub-Inspector Ram Bahadur Singh.

30. In view thereof, I do not find no
substance in the submission of learned
counsel for the accused-appellants that the
documents were not proved in accordance
with the provisions of Section 65 of the
Indian Evidence Act.

31. The technical objections taken at
this stage have no relevance. The accusedappellants have forged their mark-sheets
and took admission in the next class
knowing it to be forged and thus, they have
committed the offences under Sections 420,
468 and 471 IPC. The forgery was done
with obvious purposes of utilizing the
mark-sheets to secure admission. The
accused-appellants are not in a position to
say that they were prejudiced in any
manner by common FIR, one charge sheet
and same charge for all three accusedappellants and one trial. The allegations are
identical. Witnesses were common, who
had proved the documents and deposed in
support of the charge. Therefore, I am of
the considered view that technical plea in
this regard has no substance and is rejected.

32. Essentially, the offence under
Section 468 IPC is the commission of
forgery with an intention to use the forged
document for the purposes of cheating,
whereas the essential ingredients of Section
471 IPC are fraudulently or dishonestly
using
as genuine
any document
or
electronic record which the accused knows
or has reason to believe to be a forged.

33. From the evidence lead by the
prosecution, the offences under Sections
420, 468 and 471 IPC are fully made out
and proved against the accused-appellants
and, the learned trial court has rightly
convicted and sentenced the accusedappellants for the aforesaid offences.

34. In view thereof, I find no
substance in these appeals, which are
hereby dismissed. The accused-appellants
are on bail. Their bail bonds are cancelled
and sureties are discharged. They shall be
taken into custody forthwith to serve out
the sentence as awarded by the learned trial
court. The trial court record be returned
back forthwith.
----------
(2023) 3 ILRA 718
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.02.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2070 of 2021

Najmi Begum ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Nadeem Murtaza, Anjani Kumar Mishra

Counsel for the Respondents:
G.A.

Criminal Law- U.P. Gangster and Anti
Social (Prevention of Activities) Act, 1986
- Sections 2/3, 14 (1), 15(1), 15 (2), 16
(1), 17 - Indian Penal Code, 1860 -