Delhi District Court
State vs Javed Alalam Etc on 21 January, 2025
IN THE COURT OF MS. DIVYA ARORA:
JUDICIAL MAGISTRATE FIRST CLASS-04: NORTH-WEST
DISTRICT: ROHINI COURTS: NEW DELHI
FIR No. 169/2002
PS Shalimar Bagh
State Vs. Javed Alam etc.
Date of Institution: 03.05.2008
Date of Judgment : 21.01.2025.
JUDGMENT
(a) Serial Number of the case : 535107/2016
(b) Date of commission of offence : 15.03.2002
(c) Name of the complainant : Sh. Rajender Kumar Jain,
(d) Name of Accused persons, : (1) Ajay Raj
their parentage & residence S/o Sh. Rajender Singh,
R/o: C-7/364,
Sultan Puri, Delhi.
(2) Javed Alam (abated)
(e) Offence complained of : U/s 419/420/511/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The present judgment arises out of the prosecution of accused Ajay for offences punishable under Sections 419, 420 read with Section 511, and 34 of the Indian Penal Code (IPC). The FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 1 of 17 allegations against the accused pertain to impersonation and an attempt to cheat the Central Board of Secondary Education (CBSE) during a Class 12 board examination conducted on 15.03.2002 at a school in Pitampura i.e. Sarvodaya Vidyalaya, GP-Block, Pitam Puram, Delhi.
2) The prosecution has alleged that accused Ajay, in furtherance of a common intention with accused Javed Alam (against whom proceedings have already abated), falsely represented himself as Javed Alam to the CBSE authorities, thereby committing the offence of cheating under Sections 419/34 IPC. Further, it is alleged that he dishonestly induced the complainant, RK Jain, Principal of Sarvodaya Vidyalaya, Pitampura, Delhi to allow him to appear in the examination on behalf of accused Javed Alam, constituting an attempt to cheat under Sections 420/511/34 IPC.
3) After completion of investigation, chargesheet was filed in the Court, cognizance of the offence was taken and accused persons were summoned. After they entered appearance, copy of the chargesheet alongwith the documents was supplied to the ac- cused persons in compliance of Section 207 of the Code of Criminal Procedure.
4) Charge was then framed against the accused Ajay and Javed Alam (abated) on 13.09.2011 for the commission of offences under Section 419/420/511/34 IPC to which accused persons pleaded not guilty and claimed trial.
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 2 of 17
5) To prove its case, the prosecution examined 16 witnesses.
During the trial, proceedings against accused Javed Alam stood abated.
6) PW1 ASI Rajender deposed that on 15.03.2002 he was working as Duty Officer and on that day he received rukka at about 6.25 pm, from Ct. Bheem Singh sent by ASI Ratan Lal and upon which the present case FIR has been registered, copy of the same is Ex.PW1/A, and he made endorsement on the same which is Ex.PW1/B.
7) PW2 Retd. PGT Sh. Vijay Kumar Gupta deposed that on 15.03.2002, he was posted as PGT in Sarvodaya Vidhyalaya, K-1 Block, Delhi and on the instructions of Principal of his school, he came at Sarvodaya Vidhyalaya GP-Block, Pitam Pura, Delhi where he came to know that police persons were also present there and he further came to know that on the ad- mission card of Roll No. 6631591 photograph of other boy was affixed on it. He came to know that his name is Tofiq and he was sitting in the 12th class examination in place of Javed. He made statement to Chowki In-charge Pitam Pura which is Ex.PW2/A. Accused Tofiq was arrested and personally searched vide memos Ex.PW2/B and Ex.PW2/C. Admission Card no. 6631591 was seized by he police vide memo Ex.PW2/D.
8) PW-3 Sh. R.K. Jain deposed that the Board Exams for class 12 th were conducted in Sarvodaya Vidhyalaya in the year 2002 and on that day, the paper of 12th class was going on in his school.
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 3 of 17 He was on round, and he saw that one of the student who was giving exam was extra conscious. Principal went to the said stu- dent and took him to his office. He called the Principal of Man- gol Puri School of which the students were appearing for exams in the said school. One teacher from Mangol Puri school had come and clarified that the student who was appearing for the exam was not from their school. He signed the complaint Ex.PW3/A.
9) PW-4 Sh. C.P. Sharma deposed that on 15.03.2002, he was working and posted as Principal at Govt. Sarvodaya Bal Vid- hyalaya K-1 Block, Mangol Puri and on that day, examination for class 12th subject Political Science was going on and students of his school were taking exams at Sarvodaya Vidyalaya GP- Block Pitam Pura. Upon receiving one call, he sent the class teacher Sh. V.K. Gupta of student Javed Alam of Class 12 th, and Sh. V.K. Gupta told him that someone else was appearing in place of student Javed Alam and photograph of Javed Alam has also been replaced by the photographs of some other person. Sh. V.K. gupta also gave a written complaint to Chowki In-charge Pitam Pura which is Ex.PW2/A. Sh. V.K. Gupta shown him the photocopy of the forged Roll Number and he notied that his sig- natures are not appearing on the photographs and the date writ- ten on the same was not in his handwriting. He also observed that the number stamp affixed on the photograph is also not of their school and is different from the rubber stamp impressed upon the lower portion of the roll number Ex.P-1 alongwith his signature. His statement was recorded in PS Shalimar Bagh FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 4 of 17 which is Ex.PW4/A.
10) PW-5 Sh. Anurag Sharma, Assistant Director (Documents) FSL Rohini deposed that on 13.02.2006, documents of the present case were received in FSL in 23 sheets in open condition bearing marking Q-1A, Q-1B, Q-2A, Q-2B, Q-2C as questioned docu- ments and S-1 to S-20 and A-1 as standard documents. He had examined all the documents thoroughly and scientifically and he had tendered his opinion Ex.PW5/A. After examination and re- port all the original documents as well as original report were handed over to the Authorised Messenger in a sealed envelope. He deposed that on 22.02.2008, some documents were received in Laboratory situated at Rohini, Delhi through SHO PS Shali- mar Bagh, vide memo no. 417-SHO/PS Shalimar Bagh dated 22.02.2008. The documents were in 84 sheets bearing markings Q-1 to Q-25 as Questioned Documents; S-1 to S-75 as Specimen Writing of Sh. Tofique @ Ajay; S-76 to S-79 of Javed Alam and S-80 to S-84 of Sh. Ajay Kumar. He had examined, all the doc- uments carefully and scientifically with the help of scientific in- struments available at the laboratory and gave his opinion in his report dated 23.04.2013 which is Ex.PW15/A. After examina- tion and report, all the original documents alongwith original re- port were handed over to the authorized messengers of for- warded authority in a sealed cover.
11) PW-6 Sh. Rajbir Singh, Executive Director, CBSE, Preet Vihar, Delhi deposed that on 15.10.2007, he was posted as Regional Officer (Delhi) with CBSE, and on that day, he received from FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 5 of 17 the IO SI Satya Prakash the documents i.e. photocopy of letter from Principal of school dated 15.05.2002, photocopy of answer sheet distributed to roll No. 6631591, photocopy of duty list (at- tendance sheet), photocopy of form for forwarding unfair means cases, photocopy of FIR, and photocopy of notification of unfair means case of 2002 Exam. He handed over the aforesaid photo- copies of documents vide his letter and photocopies of aforesaid documents are Ex.PW6/A (colly).
12) PW-7 Sh. Anil Kumar Nehra, Record Clerk, CBSE, Regional Office, Ajmer brought the summoned record i.e. Marksheet record of student Javed Alam Roll No. 6631591 of class 12 th. Certified copy of the same is Ex.PW7/A.
13) PW-8 ASI Bhim Singh deposed that on 15.03.2002, he was posted at PP Pitam Pura PS Shalimar Bagh as constable and on that day, on receiving DD No. 28-A to ASI Ratan Lal regarding impersonation of one student by another person at GP-Block School. Accordingly, he alongwith IO went to the said school where one student Taufiq was apprehended by the then Principal and he produced the accused with two pens and one answer sheet. IO seized the documents recovered from the accused vide memo Ex.PW2/D. He also identified the accused in the Court.
14) PW-9 SI Rattan Lal / IO deposed that on 15.03.2002, he was posted at PP Pitampura and on that day upon the receipt of DD No. 28 A at about 3:30 pm, he alongwith Ct. Bhim Singh went the place of the incident i.e. Sarvodhaya Vidyalaya JP Block, FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 6 of 17 Pitampura, where he met principal Sh. R. K. Jain of the school who produced one boy Taufiq and handed over one admit card No. 6631591 to me. He recorded the disclosure statement of ac- cused Taufiq wherein he disclosed that he was taking exam in place of his brother Javed. He seized admit card No. 6631591 vide seizure memo Ex.PW2/D. He recorded the statement of Principal Sh. R. K. Jain which is Ex.PW3/A and prepared rukka Ex.PW9/A and same was handed over to the Ct. Bhim for the registration of the FIR. Ct. Bhim went to PS for registration of FIR. IO prepared site plan of the place of the incident at the in- stance of the Principal Sh. R. K. Jain, which is Ex.PW9/B. Ct. Bhim again came back at the spot alongwith original rukka and copy of FIR and same were handed over to IO. IO arrested and personally searched the accused Taufiq @ Ajay vide memos Ex.PW2/B and Ex.PW2/C. Accused was put behind the bar after his medical examination and he was produced before the con- cerned court. Thereafter, IO was transferred from PS Shalimar Bagh and he handed over the case file of the present case to the concerned record keeper of PS Shalimar Bagh. He also identi- fied the accused in the court.
15) PW-10 HC Naresh deposed that on 11.11.2005, he was posted as Ct. at PS Shalimar Bagh and on that day SI Rakesh had handed over him one sealed envelope sealed with the seal of RKV alongwith one forwarding letter to deposit the same in CFSL, Hydrabad. Accordingly, on 14.11.2005. he deposited the above- said sealed envelope alongwith forwarding letter in CFSL, Hy- drabad and he received an acknowledgment slip regarding the FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 7 of 17 same and after returning from the Hydrabad, he handed over the said acknowledgment slip to SI Rakesh. The said acknowledg- ment slip is Ex.Y1.
16) PW-11 HC Sidheshwar Dubey deposed that on 21.01.2008, he was posted as Constable at PS Shalimar Bagh, P.P.Pitampura, Delhi and on that day, he collected notice u/s 91 Cr.P.C from SI Ajay Kumar and served the same on K.K. Jain, C.B.S.E Board, Preet Vihar, as per the direction of SI Ajay Kumar. Thereafter, Sh. K.K. Jain handed over to him the original answer sheet of accused Javed and attested copy of attendance sheet of accused Javed and thereafter, he went back to the PS and handed over the original answer sheet and attested photocopy of attendance sheet to SI Ajay Kumar. Thereafter, SI Ajay Kumar seized the said an- swer sheet vide seizure memo Ex.PW11/A. He also identified the said attested attendance sheet of accused Javed which was handed over to him by Sh. K.K. Jain and the said attendance sheet is Ex.Z1.
17) PW-12 Inspector Puran Pant deposed that on 03.03.2004 he was posted as SI Incharge, PP Pitampura, PS Shalimar Bagh, Delhi and on that day further investigation of the present case was en- trusted to him by the then SHO and he investigated the case till 20.05.2004. Chargesheet in this case had already been prepared by previous IO. Certain documents in this case are to be de- posited in the CFSL for opinion of handwriting expert. He col- lected priority letter for deposition of the same in CFSL and sent the documents i.e. admission ticket, question paper of political FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 8 of 17 science and specimen signatures of accused Ajay @ Tofiq, how- ever, the same were returned back by GEQD, CFSL Kolkatta for further submission of specimen handwriting of accused Javed Alam vide letter dated 12.04.2004 which is Ex.Z-2. He tried to contact Javed Alam for obtaining his specimen handwriting but he could not be contacted. In the meantime, he was transferred and he handed over the case file to MHCR. The said admit card in the name of accused Javed Alam is Ex.P1 and his question pa- per of political science is Ex.Z-1 (running into two pages).
18) PW-13 Inspector Sudhir Kumar deposed that on 29.05.2004 he was posted as SI in PP Pitampura, PS Shalimar Bagh, Delhi and on that day further investigation of the present case was en- trusted to him by the then SHO. He investigated the case till 23.09.2004. Chargesheet in this case had already been prepared by previous IO. Certain documents in this case are to be de- posited in the CFSL for opinion of handwriting expert. He also tried to contact Javed Alam for obtaining his specimen handwrit- ing but he could not be contacted. Thereafter, he was transferred and he handed over the case file to MHC(R).
19) PW-14 Inspector Ajay Kumar deposed on 08.12.2007, he was posted as IC PP Pitam Pura, PS Shalimar Bagh, Delhi. On that day, he was marked the further investigation of the present case. During investigation, on 21.01.2008, he deputed Ct. Siddhesh- war to collect the original Answer sheet from CBSE. After com- ing back, he handed over one original answer sheet to IO which was seized vide seizure memo Ex.PW11/A on 27.03.2018.
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 9 of 17 Thereafter, IO obtained the specimen signatures / handwriting of the accused Ajay which was already marked as Mark-A1 (colly). Thereafter, IO sent the exhibits to FSL. He further deposed that he sent the exhibits to FSL and thereafter, he was transferred from PS Shalimar Bagh. He also identified the accused in he Court.
20) PW-15 ASI Dalip Kumar deposed that on 25.06.2005, he was posted at PP Pitam Pura, PS Shalimar Bagh as Constable. On that day, Chowki In-charge SI Sudhir Kumar called Sh. C.P. Sharma in the Chowki by giving Notice who was the Principal of Sarvodaya Vidhyalaya in Mangol Puri, Delhi, he was called regarding the investigation purpose in the above mentioned case. SI Sudhir Kumar, during the process of investigation took the specimen signatures of Sh. C.P. Sharma on five blank pages in his presence. The five pages containing the specimen signatures in running handwriting exhibited as Ex.PW15/A (colly, 05 pages).
21) PW-16 Inspector Rakesh Kumar deposed that on 23.05.2005, he was posted at PS Shalimar Bagh as IC PP Pitam Pura, Delhi. On that day, investigation of the present case was marked to him and during investigation, he took the specimen signatures of ac- cused Ajay and Javed Alam and one C.P. Sharma which were earlier exhibited as Ex.PW15/A (colly, 11 pages). He examined the witness namely C.P. Sharma and he sent the specimen signa- tures of accused Ajay and Javed Alam and other documents for comparison to CFSL Hydrabad and FSL Rohini, Delhi. There-
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 10 of 17 after, he got transferred in August 2006. During investigation, the result was awaited.
22) Thereafter, the prosecution evidence was closed and the state-
ment of accused was recorded under Section 281 read with Sec- tion 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who main- tained his innocence stating that "I have been falsely implicated in the present case." Accused has not chosen to lead defence ev- idence.
23) The following points arise for determination:
(i) Whether the accused Ajay impersonated Javed Alam and ap-
peared in the examination fraudulently, thereby committing an offence under Section 419 IPC.
(ii) Whether the accused dishonestly attempted to cheat the com- plainant and CBSE, thereby committing an offence under Sec- tions 420/511 IPC.
(iii) Whether the prosecution has been able to prove the charges beyond reasonable doubt.
24) Final arguments were then advanced on behalf of the State wherein it has been argued that the prosecution has been able to prove its case beyond all reasonable doubt and hence the ac- cused be found guilty in the case. On the other hand, Ld. counsel for the accused has argued that sufficient material has not been brought on record to prove that the accused committed the FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 11 of 17 present offence.
25) The arguments as advanced by both the parties have been care-
fully considered along with the evidence on record.
26) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by lead- ing reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecu- tion version.
Appraisal of Evidence
27) In criminal proceedings, the identification of the accused by wit-
nesses is pivotal. The failure of a witness to identify the accused in court can significantly undermine the prosecution's case. In the present matter, PW2 Vijay Kumar Gupta, a teacher at the school of Javed Aalam who came at the spot on the day of inci- dent , was unable to identify accused Ajay during his testimony, attributing this to the lapse of time since the incident.
28) The inability of a witness to identify the accused in court raises questions about the reliability of the prosecution's evidence. Courts have consistently held that when a witness fails to iden- tify the accused, especially after a considerable time has elapsed, it weakens the prosecution's case.
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 12 of 17
29) Memory degradation over time is a well-documented phenome-
non. The longer the gap between the incident and the identifica- tion, the higher the chances of misidentification. In the present case, the incident occurred on 15.03.2002, and the testimony was recorded several years later. This significant time lapse likely contributed to PW2's inability to recognize the accused, thereby diminishing the evidentiary value of his testimony.
30) PW3 RK Jain, the complainant and principal of the examination center, refused to identify accused Ajay during his testimony, even after being cross-examined by the Ld APP. This refusal significantly undermines the prosecution's narrative and raises substantial doubts regarding the identity of the accused.
31) The refusal of a key witness to identify the accused in court can have profound implications on the prosecution's case. Such a re- fusal not only weakens the direct evidence against the accused but also casts doubt on the overall reliability of the prosecution's version of events. Courts have consistently held that when a wit- ness, especially the complainant, fails or refuses to identify the accused, it creates a reasonable doubt about the accused's in- volvement in the alleged crime.
32) In the current scenario, PW3 RK Jain's refusal to identify ac-
cused Ajay, despite being the complainant and principal of the examination center, is a critical setback for the prosecution. As FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 13 of 17 the individual who lodged the First Information Report (FIR) and was presumably a direct witness to the events, his non-iden- tification of the accused suggests a lack of certainty or confi- dence in the accused's involvement. This not only diminishes the strength of the prosecution's case but also bolsters the de- fence's argument regarding the absence of conclusive evidence linking the accused to the alleged crime.
33) In criminal proceedings, the timely recording of witness state-
ments and the prompt collection of specimen signatures are cru- cial for ensuring the reliability and integrity of evidence. In the present case, PW4 CP Sharma, the principal of the school to which accused Javed belonged, testified that the Investigating Officer (IO) did not record his statement in his presence. More- over, there was an unexplained delay in obtaining his specimen signatures, which were collected on 21.06.2005, more than three years after the alleged incident on 15.03.2002. Such inordinate delays can render the evidence unreliable.
34) The unexplained delay of over three years in obtaining specimen signatures of PW4 significantly undermines the reliability of the evidence. Such procedural lapses necessitate careful judicial scrutiny, as they can lead to questions about the authenticity and credibility of the evidence presented. In light of these considera- tions, the evidence pertaining to PW4 is rendered unreliable, thereby weakening the prosecution's case.
FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 14 of 17
35) In criminal proceedings, the production of original documents, especially those central to the allegations, is crucial for establish- ing the prosecution's case. In the present matter, the original an- swer sheets, which were essential for forensic analysis to sub- stantiate claims of impersonation , were not produced in court. This omission significantly undermines the prosecution's posi- tion, as it deprives the court of primary evidence necessary for a thorough examination of the alleged offenses.
36) The Indian Evidence Act emphasises the importance of primary evidence, defined under Section 62 as the document itself pro- duced for the inspection of the court. Section 64 mandates that documents must be proved by primary evidence, except in cases outlined in subsequent sections. The failure to produce such pri- mary evidence without a satisfactory explanation can lead courts to draw adverse inferences against the prosecution.
37) In Union of India vs. Ibrahim Uddin & Anr., Hon'ble Supreme Court held that non-production of primary evidence without ade- quate explanation permits the court to draw an adverse inference against the party responsible for its production. This principle underscores the necessity of presenting original documents to substantiate claims.
38) The non-production of the original answer sheets, without any justified reason, significantly impairs the prosecution's ability to FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 15 of 17 prove the allegations beyond reasonable doubt. In line with judi- cial precedents, such an omission entitles the court to draw an adverse inference, thereby favouring the accused. Consequently, this evidentiary lapse contributes to the overall unreliability of the prosecution's case, warranting careful consideration during adjudication.
Findings:
39) From the analysis of the evidence on record, it is evident that:
(a) There exists a reasonable doubt as to whether the accused Ajay was indeed the person who impersonated Javed Alam, given the failure of key witnesses to identify him.
(b) The prosecution failed to establish dishonest intent or fraudu-
lent inducement beyond reasonable doubt.
(c) The absence of critical documentary evidence (original an- swer sheets) and procedural deficiencies make it unsafe to con- vict the accused.
40) The principle of criminal jurisprudence mandates that the prose-
cution must establish its case beyond reasonable doubt. In the present case, the prosecution has failed to discharge this burden. The benefit of the doubt must, therefore, be given to the accused.
Decision
41) In view of the above findings, the accused Ajay is hereby acquit-
ted from the charges under Sections 419/420/511/34 IPC in FIR FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 16 of 17 No. 169/2002 PS Shalimar Bagh.
42) Accused is directed to furnish bail bond / surety bond for Rs.
10,000/- each under section 437-A of Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
43) File be consigned to Record Room after due compliance.
Announced in the open Court on 21.01.2025. DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.01.21 18:36:13 +0530 (DIVYA ARORA) Judicial Magistrate First Class-04/North West District Rohini District Court/New Delhi Certified that this judgment contains 17 pages and each page bears my signature. DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.01.21 18:36:23 +0530 (DIVYA ARORA) Judicial Magistrate First Class-04/North West District Rohini District Court/New Delhi FIR No. 169/2002 (PS Shalimar Bagh) U/s 419/420/511/34 IPC State Vs. Javed Alam etc. Page No. 17 of 17