Delhi District Court
State vs Bhupinder Singh Etc., on 2 February, 2011
(P/1)
FIR NO . 500/2004
u/s 474/120 B IPC
P.S IGI Airport
IN THE COURT OF SH RAJESH KUMAR GOEL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02 ,
DWARKA COURTS
FIR NO . 500/2004
u/s 474/120 B IPC
P.S. IGI Airport
Date of institution : 11.01.2005
Date of final argument : 02.02.2011
Date of final order : 02.02.2011
JUDGMENT:
A SL NO. OF THE CASE : 02403R0006402005 B: DATE OF OFFENCE : on or before 13.11.2004 C: NAME OF THE : State COMPLAINANT D: NAME OF THE : 1. Bhupinder Singh s/o Sh Accused Karam Singh r/o Village Toot, Person P.O Bomgala, Teh & Distt Amritsar, Punjab.
2. Harjinder Singh s/o Desa Singh ( already stands convicted) E: OFFENCE : U/S 474/120 B IPC.
COMPLAINED OFF
F: PLEA OF ACCUSED : Pleaded not guilty
G: FINAL ORDER : Convicted
H: DATE OF SUCH : 2.2.2011
ORDER
(P1of 12)
state vs Bhupinder Singh etc.,
(P/2)
FIR NO . 500/2004
u/s 474/120 B IPC
P.S IGI Airport
BRIEF REASONS FOR DECISION:
1. Accused Bhupender Singh is facing trial on the
allegation of the prosecution that on or before 13.11.2004, he
entered into a criminal conspiracy alongwith his coaccused
Harjinder Singh to facilitate his journey by arranging fake
Malaysian visa on his passport for unlawful consideration . It is
further alleged that in furtherance of said criminal conspiracy , on 13.11 .2004 , at about 00:45 hours at arrival west wing of immigration, his coaccused Harjinder Singh( convicted) produced his passport having fake Malaysian visa on page no.29 , which was arranged by him ( Bhupinder Singh) .
2. After investigation the chargesheet was filed .
Prima facie case U/s 474 r/w 120 B IPC was made out against accused person. After compliance of the section 207 IPC , charge were framed against them to which they pleaded not guilty and claimed to be tried.
3. Here it is pertinent to mention that during the (P2of 12) state vs Bhupinder Singh etc., (P/3) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport pendency of the present case, accused Harjinder Singh pleaded guilty and he stands convicted vide order dated 21.5.2009.
4. In support of its case prosecution has examined six witnesses.
5. PW1 Const Bhagat Singh deposed that the pax, alongwith travel documents and rukka were handed over to him by the complainant for registration of FIR. PW2 HC Ramesh Chand proved the registration of FIR vide ExPW2/A. PW3 S.I Ajay Kaushik is the IO who carried out the investigation. PW4 HC OM Parkash is the witness who accompanied the IO during investigation. PW5 Desa Singh is the public witness . PW 6 Ms Manisha Chaturvedi is the complainant.
6. Thereafter prosecution evidence was closed and statement of accused Bhupender Singh u/s 313 Cr.PC was recorded in which he denied the allegations made against him .
(P3of 12) state vs Bhupinder Singh etc., (P/4) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport However, he did not opt to lead any evidence in his defence.
7. I have perused the record , heard the Ld.APP for State and the ld counsel for the accused .
8. Allegations against the accused Bhupinder Singh are that he entered into a criminal conspiracy with coaccused Harjinder Singh and in furtherance of said conspiracy had arranged the fake Malaysian visa on the passport of the accused Harjinder Singh . As far as accused Harjinder Singh is concerned , he has already pleaded guilty for the offence and he was convicted.
9. Now, take the present case as against accused Bhupinder Singh. PW1 Ct. Bhagat Singh and PW2 HC Ramesh Chand are just formal witnesses . They have said nothing material against the accused Bhupinder Singh .
10. PW6 Ms Manisha Chaturvedi was posted as CO at arrival wing of immigration during relevant time. She deposed that (P4of 12) state vs Bhupinder Singh etc., (P/5) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport on 13.11.2004, during clearance of flight from Bangkok, one pax by the name of Harjinder Singh approached her counter for immigration clearance. On scrutiny of the passport, it was found that on page no.29, there was forged Malaysian Visa. She prepared the complaint ExPW6/A and the accused alongwith with travel documents ExP1 to ExP4 were sent to P.S through Ct. Bhagat Singh ( PW1) . PW6 was not cross examined by the accused Bhupinder despite opportunities . Meaning thereby, he has not disputed the testimony of PW6.
11. PW3 S.I Ajay Kaushik is the IO who deposed that after registration of FIR ExPW2/A, accused Harjinder Singh and the travel documents were handed over to him and allegations were that Malaysian visa affixed on page no.29 of the passport of the accused Harjinder Singh was forged . He deposed that accused Harjinder Singh disclosed it was arranged by accused Bhupinder Singh for a consideration of Rs 1.5 lacs and the same amount was duly paid to the accused Bhupinder Singh at his residence. Accused Harjinder Singh pointed out towards the house of the accused Bhupinder Singh (P5of 12) state vs Bhupinder Singh etc., (P/6) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport and subsequently accused Bhupinder Singh was arrested vide ExPW3/E and his personal search was conducted vide ExPw3/F. Disclosure statement of the accused Bhupinder Singh was recorded wherein he has admitted that he had given Rs one lakh out of said Rs 1.5 lacs to one another agent namely Raja @ Raj Kumar who is basically Malaysian base agent.
12. PW 3 further deposed that in the month of July 2004, accused Bhupinder Singh had gone to Malaysia and got the forged Malaysian visa affixed in the passport of accused Harjinder Singh with the help of agent Raja @ Raj Kumar. He further deposed that departure of accused Bhupinder Singh on 15.7.2004 to Malaysia was confirmed vide ExPX1 and ExP2. The Malaysian visa was also got verified vide ExPW3/L according to which the visa was found to be falsified.
13. PW3 was cross examined but even during his cross examination , the testimony of Pw3 on material points have gone unchanged . Accused has not disputed that accused Harjinder Singh (P6of 12) state vs Bhupinder Singh etc., (P/7) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport was arrested and on scrutiny of his passport Malaysian visa affixed on page no.29 of his passport was found forged. During the cross examination of PW3, it appears that only defence of the accused Bhupinder Singh was that since the visa was arranged in Malaysia , therefore, the offence , if any has been committed, that has been committed outside India and since the offence was committed outside India , therefore, the sanction u/s 188 CrPC was required to prosecute the accused which is a mandatory provision.
14. PW4 HC OM Parkash , who was alongwith IO deposed on the lines of PW3. PW4 was also not cross examined by the accused Bhupinder Singh despite opportunities .
15. During the pendency of the present case, on 27.8.2010 , accused Bhupinder Singh admitted the visa verification report ExPW3/L and PW3/M . As per the report ExPw3/L, the visa affixed on the passport of the accused Harjinder is falsified or forged. Accused has not disputed the same. Accordingly , it stands proved that Malaysian visa affixed on page no. 29 of the accused Harjinder (P7of 12) state vs Bhupinder Singh etc., (P/8) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport Singh was found to be falsified .
16. From the aforeasid testimony of prosecution witnesses and documents on record, it stands proved that on 13.11.2004 , accused Harjinder Singh ( convicted) was apprehended at IGI Airport and on scrutiny of his passport, it was found that the Malasian visa affixed on page no.29 is false , as per report ExPW3/L. Accused Harjinder Singh has disclosed the name of the accused Bhupinder . Accused Bhupinder Singh also disclosed the name of one Raja @ Raj Kumar . During his statement recorded u/s 313 CrPC , accused Bhupinder Singh, to one of the question, replied that he has done nothing and one Raja was involved in doing all these things. This reply itself suggests that accused Bhupinder Singh was involved in the conspiracy and he was instrumental in arranging the fake visa for the coaccused Harjinder Singh with the help of said Raja @ Raj Kumar , who was based at Malaysia.
17. Moreover, PW5 Desa Singh , public witness has categorically stated that his son Harjinder wanted to go abroad. He (P8of 12) state vs Bhupinder Singh etc., (P/9) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport was told by his son Harjinder Singh that he had met one person namely Bhupinder Singh in the month of March 2004 and that he can send him Malaysia and can also arrange a job for him and he had demanded Rs 1.5 lacs for the said purpose. He had given Rs 1 lakh as advance to Bhupinder Singh and at that time father of Bhupinder Singh was also present there. Accused Bhupinder Singh assured that he will send his son abroad and also arrange work permit for him. PW5 further deposed that he had arranged Rs 1 lakhs from his relatives and handed over the passport of his son to Bhupinder and paid Rs 50,000/ to him in the middle of March . PW5 was not cross examined by the accused despite opportunity although he was cross examined by the ld APP for the state.
18. It is true that PW5 Desa Singh was declared hostile as he was resiling from his previous statement given to the police and he was cross examined by the ld APP for the state , but it will not make any difference. In a case reported as AIR 2004 SC 1720 it was held that " the fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence.
(P9of 12) state vs Bhupinder Singh etc., (P/10) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport Even the evidence of a hostile witness , if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused'.
19. In another case reported as AIR 2001 SC 330 it was held that " it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be exclused or rendered unworthy of consideration . In a criminal trial where a prosecution witness is cross examined and contradictory with the lieu of the court by the party calling him for evidence cannot , as a matter of general rule , be treated as washed off the record altogether. It is for the court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believe in regard to any part of his testimony."
20. In appropriate cases the court can rely upon the part of testimony of such witness if that part of deposition is found to be credit worthy. The same preposition of law was laid down by the Hon'ble Supreme Court in another cases reported as 1976 SC 202 , AIR 1977 SC 170 , AIR 1979 SC 1848 , and AIR 1976 SC 294.
21. In the present case PW5 Desa Singh has categorically (P10of 12) state vs Bhupinder Singh etc., (P/11) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport stated that accused Bhupender Singh has assured to arrange the journey and job for his son Harjinder Singh for a consideration of RS 1.5 lacs and the said amount was paid to him in the presence of the father of the accused Bhupender Singh . This testimony has gone unrebutted which finds support from other material on record. It has come on record that the accused Bhupender Singh had gone to Malaysia in 15.7.2004. Accused Bhupender Singh himself is referring the role of one Raja @ Raj Kumar based at Malaysia . This all shows that the conspiracy started in India though it was executed out side India , therefore, in these circumstance, the sanction u/s 188 CrPC is not required.
22. Further, nothing material has been brought on record which could show that why prosecution witnesses will falsely implicate the accused Bhupinder Singh .
23. Keeping in view the above observation, facts and circumstances of the case, I am of the considered opinion that prosecution has proved its case beyond reasonable doubt against the (P11of 12) state vs Bhupinder Singh etc., (P/12) FIR NO . 500/2004 u/s 474/120 B IPC P.S IGI Airport accused . Accused Bhupinder Singh ,therefore, stands convicted for committing offence punishable u/s 474 r/w 120 B IPC . However, accused shall be heard separately on the point of sentence.
(RAJESH KUMAR GOEL) Addl Chief Metropolitan Magistrate02/Dwarka courts ANNOUNCED IN THE OPEN COURT TODAY I.E 2.2.2011 (P12of 12) state vs Bhupinder Singh etc.,