Delhi District Court
Rishi Kumar @ Suddu vs The State on 22 August, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 540 of 2018
Rishi Kumar @ Suddu
S/o Sh. Raj Bahadur Singh
R/o H.No. 52, Devli Village
New Delhi .......... Appellant
Vs.
The State
( Govt. of NCT,Delhi ) .......... Respondent
Instituted on : 25.08.2018
Argued on : 03.08.2019
Decided on : 22.08.2019
JUDGMENT
1 The appellant has impugned the judgment dated 3.8.2018 vide which he has been convicted u/s 419/420/471 R/W Section 120B IPC and order on sentence dated 06.08.2018 vide CA Rishi Kumar Vs. State 1 of 23 which he is sentenced to undergo RI for three years with fine of Rs. 3000/ for the offence u/s 419 IPC R/W section 120B IPC, RI for three years with fine of Rs. 3000/ for the offence u/s 420 IPC R/W section 120B IPC and RI for three years with fine of Rs. 3000/ for the offence u/s 471 IPC R/W section 120B IPC and in default of payment of each fine to undergo SI for 7 days for each fine. Benefit of section 428 CrPC is granted to him. 2 The appeal is filed on the grounds the admit card recovered from the possession of coaccused Rajiv has not been exhibited in the testimony of PW1. He was not identified by PW2. His purse containing admission ticket has been stolen when he was travelling in bus of route No. 423 qua which he has lodged the report with PP, Ambedkar Nagar. The duplicate admission ticket was got issued by him. The coaccused Rajiv has been planted by the opposite college group to falsely implicate him. There are contradictions in the testimony of prosecution CA Rishi Kumar Vs. State 2 of 23 witnesses which have been overlooked. There is no evidence on record that he is involved in the commission of the offence. Hence, this appeal.
3 The notice of the appeal is issued to the prosecution. 4 The facts of the case are like this. On 30.4.2002 DD No. 12A was recorded on the information received from Principal, Desh Bandhu College (Evening Shift), New Delhi upon which SI Arun alongwith Ct. Mohan Lal reached on the spot. Sh. R. C. Kuhad, Principal/OSD, Desh Bandhu College, Kalkaji, New Delhi gave a written complaint to the police with the allegations that on 30.4.2002 Dr. Vinod Kumar Gupta was invigilator in room no. 33 in the examination centre i.e. Desh Bandhu College. Dr. Vinod Kumar Gupta has caught Rajiv Kumar while appearing in the paper of BA (Pass) of English PaperIA of BA (Pass) in place of Rishi Kumar. Rishi Kumar is exstudent of Desh Bandhu College. The photograph on the CA Rishi Kumar Vs. State 3 of 23 admission ticket has been changed to the photograph of Rajiv Kumar. The signature of the Administrative Officer on the photograph is forged. Rukka was prepared on the statement which led to registration of FIR. Rajiv Kumar was arrested. His disclosure statement was recorded. On 25.7.2002 appellant was arrested whose disclosure statement was recorded. The statements of witnesses u/s 161 CrPC were recorded. The admission ticket was sent to CFSL. CFSL report was received. Usual investigation was carried out. Charge sheet was prepared and filed in the court against the appellant and coaccused Rajiv Kumar.
5 Copy of charge sheet and documents were supplied to the appellant. Charge u/s 419/420/471/120B IPC was framed against the appellant and coaccused Rajiv Kumar to which they pleaded not guilty and claimed trial.
6 On 14.3.2014 accused Rajiv Kumar was declared as CA Rishi Kumar Vs. State 4 of 23 an absconder. 7 The prosecution has examined 6 witnesses. PE was
closed. The appellant was examined u/s 313 Cr.PC. Wherein he has taken the plea that accused Rajiv Kumar has been planted by the opposite group of the college. He has been arrested for the second time in this case as he was earlier arrested on 30.4.2002 but released on the same day. He could not file the nomination in the college to contest the election in the college due to false implication in this case. He has examined two witnesses in defence evidence.
8 Ld. Trial Court after perusing the record and hearing the Ld. APP and Ld. Defence Counsel has convicted and sentenced the appellant.
9 The prosecution has examined 6 witnesses.
10 PW1 Prof Ramesh Chander Kuhad stated that on 30.4.2002 he was OSD in Desh Bandhu College. Sh. Ravinder CA Rishi Kumar Vs. State 5 of 23 Kumar Gupta and Dr. Vinod Kumar Gupta were invigilators in the examination centre. They have brought a impersonation case to his notice. Dr. Vinod Kumar Gupta has caught one boy. He has given a complaint Ex. PW1/A to the police. During cross examination by the appellant the suggestion is denied that no examination was going on that day.
11 PW2 Dr. Ravinder Kumar Gupta stated that he was incharge for the examination conducted in Desh Bandhu College around 5 years ago. Dr. Vinod Gupta, invigilator, has brought some one in his room who was handed over to the police. He was declared hostile and crossexamined by the prosecution. During crossexamination by State he admitted that on 30.4.2002 examination was conducted. Ex. PW1/A. Ex. PW2/A bear his signature at point B and at point A. The admission ticket Ex. PW2/B was issued in the name of Rishi Kumar. On 1.5.2002 his statement was recorded. The final examination was conducted in CA Rishi Kumar Vs. State 6 of 23 the college on 30.4.2002 on which day he was working as Dy. Supdt. (Exam). He does not remember that accused Rajiv Kumar with Roll. No. 837956 was writing the examination of BA (Pass) in place of Rishi Kumar. He has sent the original letter alongwith original answer sheet with photocopy of original admission ticket to University. The original admission card and accused Rajiv were produced before Sh. R C Kuhad. The witness has failed to identify the accused Rajiv Kumar. During crossexamination by the appellant the suggestion is denied that examination was not going on. The university conducts the election for the Students Union.
12 PW4 Vinod Kumar Gupta stated that on 30.4.2002 he was Lecturer at Desh Bandhu College (Eve.) He was invigilator in the examination of BA(Pass) English. He was checking the admission ticket for the examination of a candidate Rishi Kumar with Roll No. 837956. He found that photograph pasted on the CA Rishi Kumar Vs. State 7 of 23 admission ticket is tampered upon which he informed the Supdt. of Examination. The candidate and admit card were handed over to Superintendent of Examination for further inquiry. Police were informed. Police came to the examination centre. The seizure memo Ex. PW2/A of admit card was prepared. He was declared hostile and cross examined by the prosecution. During cross examination by the prosecution the witness has failed to identify accused Rajiv due to lapse of time. During crossexamination by the appellant he stated that 2530 students were present in the room at the time of examination. There is no attendance sheet who appeared for the examination on that day. The original admit card is handed over to the students. The suggestion is denied that he has tampered with admit card of the accused. 13 PW5 ASI (Retd.) Krishan stated that on 25.7.2002 he was associated in the investigation by SI Arun Kumar. On that day they have arrested appellant from his house. Notice Ex.
CA Rishi Kumar Vs. State 8 of 23 PW5/1A was given to him. The personal search and arrest memos Ex. PW5/A and B were prepared. The disclosure statement Ex. PW5/C of the appellant was recorded.
14 PW6 Insp. Arun Dev Mehra stated that on 30.4.2002 DD No. 12A was received by him upon which he alongwith PW3 Ct. Mohan Lal went to Desh Bandhu College (Eve). Sh. R C Kuhad, OSD/Principal gave a written complaint Ex. PW1/A and produced accused Rajiv alongwith photocopy of admission ticket and statement of accused Rajiv Kumar. He has made an endorsement Ex. PW6/A on the statement and handed over to PW3 for registration of case who went to PS and came back with copy of FIR and original rukka. Accused Rajiv Kumar was arrested. His personal search and arrest memos Ex. PW3/A and B were prepared. The disclosure statement Ex. PW3/C was recorded. On the next day he again went to Desh Bandhu College where Principal has handed over original admission ticket of roll CA Rishi Kumar Vs. State 9 of 23 No. 837956 which was taken into poissession vide memo Ex. PW2/A. The appellant was arrested from his residence whose personal search and arrest memos Ex. PW5/A and B were prepared. Notice Ex. PW5/1A was given. Disclosure statement Ex. PW5/C was recorded. The original admission ticket was sent to CFSL. The report was collected from CFSL. Statements u/s 161 CrPC were recorded. Charge sheet was filed. He has identified the appellant. During crossexamination he stated that he has not made any application to Principal to supply the answer sheet. The call was related to the unfair means in the examination centre. The original stamp on Ex. PW2/B was not verified by him. The admitted signatures and stamp on Ex. PW2/B were not verified from the university. The attendance sheet was not handed over by the college to him. The suggestion is denied that appellant has informed him that he has lost his original admit card and got issued duplicate admit card from the university or that on CA Rishi Kumar Vs. State 10 of 23 30.4.2002 the appellant was arrested from the college and released on the same day or that appellant was going to contest election for the students union that is why he is falsely implicated by the opposite party or that he got the signatures of the appellant on the paper.
15 PW3 HC Mohan Lal has corroborated the version of PW6.
16 The appellant has led defence evidence. The appellant has examined himself as DW1. He stated that on 30.4.2002 he was to appear in English paper of BA(P) Ist Year in Desh Bandhu College (Evening Shift). One admission ticket wth his photgraph was issued to him. He has got down at 12.30pm at Chirag Delhi from bus of route no. 423. He found that his purse containing admission ticket has been stolen. He called his friend Devender who advised him to lodge the FIR. He went to PP, Ambedkar Nagar and gave a written complaint Ex. DW1/A to the police. He CA Rishi Kumar Vs. State 11 of 23 went to South Campus, Delhi University and got issued duplicate admission ticket Ex. DW1/B on producing the complaint. He has pasted the photograph after removing it fromn his ID Card. He went to the college where he was arrested and brought to PS. He was allowed to go to his house. He came to know that FIR has been registered against him. During crossexamination by the prosecution he stated that the date of examination was 30.4.2002. He has submitted photocopy of complaint given to PP, Ambedkar Nagar. Ex. DW1/B does not bear the signature in pen of the official who has issued the same. Mr. V Rajan, Controller might have issued the duplicate admit card. The admit card does not bear the signature of V. Rajan. He admitted that Ex. PW2/B bears his signature at point A but it does not bear his photograph. He has not given the examination on that day as he was apprehended by the police at 33.30pm from outside the college. The examination started at 3pm but they have to reach at the CA Rishi Kumar Vs. State 12 of 23 examination centre at 2.45pm. He admitted that accused apprehended at examination centre was appearing in his name and possessing the admit card bearing his signature. The suggestion is denied that he has asked accused Rajiv to appear in the exam on his behalf. The suggestion is denied that photograph on admit ticket is Ex. DW1/B having the seal of his college and stamped by him.
17 DW2 HC Subhash has produced the copy of order Ex. DW2 regarding destruction of DD entry dated 30.4.2002, PP, Ambedkar Nagar.
18 Heard and perused the record.
19 The prosecution has examined 6 witnesses in order to prove its case whereas appellant has examined two witnesses including himself as DW1 in order to controvert the case of prosecution.
20 The testimony of PW1 shows that on 30.4.2002 he CA Rishi Kumar Vs. State 13 of 23 was OSD in Desh Bandhu College(Eve.). The testimony of
PW1,2 and 4 shows that examination for the English paper of BA(P) was going on in the college. PW2 was Dy. Supdt. (Exam). PW4 was invigilator during the examination. 21 The testimony of PW 4 shows that he was signing the attendance sheets of the students in order to mark their presence in the examination. He was checking the admission ticket of candidate Rishi Kumar with roll No. 837956 and found photograph on it is tampered which created suspicion. He has handed over the person appearing in the examination alongwith admit card to Superintendent (Examination). 22 The testimony of PW1 shows that the candidate appearing in the examination was brought before him by PW2 &
3. He has informed the police and gave his complaint Ex. PW1/A. 23 It is clear from the testimony of PW1,2 & 4 that examination of English paper of BA(P) was conducted in the CA Rishi Kumar Vs. State 14 of 23 examination centre at Desh Bandhu College (Eve.) The impersonator was caught and handed over to the police. 24 The testimony of PW7 shows that DD No. 12A was recorded on receipt of information from Desh Bandhu College. He alongwith PW3 went to college where PW1 gave his complaint Ex. PW1/A and handed over accused Rajiv Kumar, statement of Rajiv Kumar and photocopy of admission ticket. The testimony of PW2 shows that Ex. PW2/B is the examination ticket which was handed over to the police.
25 The appellant has stepped into witness box as DW1 who admitted that he was student of BA(P)Ist year of DBG College (Eve). On 30.4.2002 he was to appear in the examination of English paper at the said college. The admission ticket Ex. DW2/B bears his signature at point Y but it does not bear his photograph.
26 It is clear from his testimony that he was to write the CA Rishi Kumar Vs. State 15 of 23
English paper of BA(P) on 30.4.2002. Roll Number Ex. PW2/B was issued to him.
27 The defence is that he has lost his admit card and lodged the report Ex. DW1/A with PP, Ambedkar Nagar. The record pertaining to DD dated 30.4.2002 at PP, Ambedkar Nagar has been destroyed which is clear from testimony of DW2. There is nothing in the complaint Ex. DW1/A that he has lodged the complaint at a particular time on 30.4.2002. 28 The appellant has lodged the report in a pre planned manner and in conspiracy with accused Rajiv Kumar. He has allegedly got issued duplicate admit card Ex. DW1/B from the university in order to give effect to his conspiracy. The said admit card does not bear the signature of Controller of Examination, Delhi University. He has not examined any witness from the university to show that he has got issued the duplicate admit card from the university. Mere production of duplicate admit card does CA Rishi Kumar Vs. State 16 of 23 not mean that it has been issued by the concerned authorities. The appellant has failed to bring any evidence on record that this admit card was issued by University of Delhi. 29 The appellant has taken the defence that on 30.4.2002 at 33.30pm he was apprehended from outside the gate of college. This defence is without any merits. The examination commenced at 3pm and thereafter the incident of impersonation came to the notice of PW4. The impersonator i.e. accused Rajiv Kumar was produced before PW1. The police were informed. DD No. 12A was recorded at 6.22pm and thereafter PW6 has reached at the college. The defence that he was apprehended on the same day is without any merit.
30 Accused Rajiv Kumar was not student of college. The name on the admit card is that of appellant with his signature. The accused Rajiv Kumar is not going to be benefited by appearing in the examination. The appellant was going to be benefited from CA Rishi Kumar Vs. State 17 of 23 the said act of Rajiv Kumar. The appellant is the sole beneficiary. 31 All these facts show that appellant has criminally conspired with accused Rajiv Kumar (since declared absconder) to appear in the examination of English paper in his place. He has concocted a story that his purse containing roll number has been lost while in travelling in a bus of route no. 423 at Chirag Delhi. 32 The admission ticket Ex. PW2/ B bears the name and signature of the appellant. The appellant has removed the photograph and replaced it with photograph of accused Rajiv Kumar. The accused Rajiv Kumar has written the English paper in place of the appellant. The accused Rajiv Kumar was caught while writing the paper. The admission ticket Ex. PW2/B was altered and tampered by pasting the photograph of accused Rajiv Kumar in place of appellant. The appellant had the knowledge that the admission ticket has been forged by pasting the photograph of accused Rajive Kumar. The admission ticket has CA Rishi Kumar Vs. State 18 of 23 been fraudulently used as a genuine document. The appellant and accused Rajive Kumar (since declared absconder) had the knowledge that admission ticket has been altered and tampered and accused Rajiv Kumar used it as genuine. Both of them have criminally conspired to replace the photo on the original admission ticket. The appellant was the beneficiary. 33 The FSL report shows that rubber seal impression on the admission on photographs on admission ticket Ex. PW2/B does not tally with size, design and arrangement as well as ink used is different. The prosecution cannot draw support from this document. FSL report has neither been tendered nor any witness has been examined to prove this document.
34 However, the entire evidence on the record shows that the admission ticket has been tampered/altered as photographs of the accused Rajiv Kumar was pasted by removing the photograph of appellant.
CA Rishi Kumar Vs. State 19 of 23 35 The entire evidence on record does not show that any
cheating has been done by the appellant in criminal conspiracy with accused Rajiv Kumar. The prosecution has failed to bring evidence on record to show that cheating has also been done. 36 The entire evidence on the record shows that appellant has criminally conspired with accused Rajiv Kumar (since declared absconder) to do cheating by impersonation and to forge the admission ticket Ex. PW2/B. Ld. Trial Court has properly appreciated the facts and evidence on record to this effect.
37 The Ld. Trial has properly appreciated the facts with respect to the offence u/s 419 and 471 R/W Section 120B IPC. The judgment of Ld. Trial Court with respect to conviction of the appellant for the offence u/s 419/471/120B IPC is up held. 38 Ld. Trial Court has not properly appreciated the facts and evidence with respect to section 420/120B IPC and I find an CA Rishi Kumar Vs. State 20 of 23 infirmity in the judgment passed by Ld. Trial Court to this effect and accordingly the appellant is acquitted of the offence u/s 420 R/W Section 120B IPC.
39 Ld. Counsel for the appellant submitted that he is 41 years old. He further submitted that appellant has to look after his family including his aged mother. He further submitted that he is sole bread earner of his large family. He further submitted that he has been facing trial for the last more than 15 years. He further submitted that a lenient view be taken.
40 Ld. Addl. PP for the State submitted that there is no ground to take lenient in favour of the appellant as the Ld. Trial Court has imposed the adequate sentence.
41 Heard and perused the record.
42 The appellant has been facing trial for the last more than 15 years. The appellant is the first offender as there is nothing on record to suggest his previous conviction. He has to CA Rishi Kumar Vs. State 21 of 23 support his family. He has undergone sufficient punishment during the course of trial.
43 Keeping in view of entire facts and circumstances of the case, the sentence imposed on the appellant is modified. 44 The convict/appellant is directed to undergo RI for 18 months with fine of Rs. 3000/ under section 419 r/w Section 120B IPC and sentenced to undergo RI for 18 months with fine of Rs. 3000/ under section 471 r/w Section 120B IPC and in default of payment of fine to undergo SI for one month which is in addition to the substantive sentence imposed upon him. Both the sentences shall run concurrently. Benefit of section 428 CrPC is granted to the appellant.
45 The appellant be taken into custody to serve the sentence modified by this Court.
46 Attested copy of the judgment be supplied to the appellant free of cost.
CA Rishi Kumar Vs. State 22 of 23 47 TCR alongwith copy of the judgment be sent to the Ld. Trial Court. 48 Appeal file be consigned to record room. announced in the open court on 22th August, 2019 (SURESH KUMAR GUPTA)
Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi CA Rishi Kumar Vs. State 23 of 23