Delhi District Court
Investigator. Reliance Is Placed On ... vs . State Of M.P. on 19 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Presided over by- Ms. Neha Barupal, DJS
Cr. Case No. : 90107/16
CNR No. : DLSE02-0005352012
FIR No. : 422/2010
Police Station : Amar Colony
Section(s) : 419/420/468/471 IPC
read with 120B IPC
In the matter of:
STATE
VERSUS
1.BINOD KUMAR S/o Sh. Bhagwan Dass R/o Village Gopal Ganj, P.O.+P.S. Ghosi, Distt. Jahanabad Bihar.
2. MUKESH KUMAR @ SANTOSH @ JAINENDER S/o Sh. Saryug Prasad Singh R/o Village Ashrafpur, P.S. Dhanarau Dist. Patna, Bihar
1. Name of Complainant : Sh. Y.P. Pandey
1) Binod Kumar
2) Mukesh Kumar@
2. Name of Accused :
Santosh @ Jainender Kumar S. 419/420/468/471 IPC
3. Offence complained of :
read with 120B IPC
4. Plea of Accused : Not guilty Date of commission of
5. : 26.09.2010 offence
6. Date of filing of case : 24.01.2012
7. Date of reserving Order : 31.03.2023
8. Date of pronouncement : 19.04.2023
9. Final Order : Both convicted under Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 1 of 30 sections 419/420/468/471 read with section 120B IPC Argued by: Dr. Prayag Dutt Pandey, Ld. APP for the State Sh. Ranjan Kumar, Ld. counsel for both the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. United by conspiracy, divided by science! This somewhat describes the instant case. Briefly, the facts of the case as unfolded from the chargesheet are that on 26.09.2010 a PCR call vide DD No. 11-A was received upon which SI Nitin Kumar along with Ct. Vijay reached at Balwant Rai Mehta Vidya Bhawan, near Lajpat Nagar-IV. There complainant Sh. Y.P. Pandey and his associates produced accused Mukesh Kumar stating that he had been appearing for written examination to the cadre of Postman in place of his brother Binod Kumar. During the course of checking by Sh. LL Ahirwar, Visiting Officer, in Room No. 210, Sh. Ved Prakash Sharma, the invigilator pointed out the irregularities in hall permit issued in favour of accused Binod Kumar. His photo was not attested by the issuing authority and it was not pasted on the hall permit, rather it was found stapled thereon. The visiting officer found upon enquiry that the candidate appearing in the examination is not Binod Kumar. The candidate disclosed his identity as Mukesh Kumar S/o Sh. Bhagwan Dass Pandit and told that he is brother of the real candidate. Later on, it was found that his real name is Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 2 of 30 Santosh@Jainender and Mukesh is his nickname.
2. Thus, the prosecution case is that accused Mukesh@Jainender appeared and wrote the examination for the cadre of Postman personating accused Binod Kumar and in criminal conspiracy with him by using his admit card with intention to cheat the Board conducting the examination. The accused persons thereby dishonestly induced and cheated the Department/officials conducting the exam. As such, it is alleged that both the accused committed the offences punishable under sections 419/420/468/471 read with 120B of the Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 422/2010 was registered at Police Station Amar Colony, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED-
3. After registration of the FIR, the Investigating Officers (hereinafter, "IO") undertook investigation and arrested the accused persons and on culmination of the same, the charge-sheet against the accused persons was filed. After taking cognizance of the offence, the accused were summoned to face trial vide order dated 24.01.2012.
4. On their appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Section 416/419/420/468/471 IPC read with 120B IPC was framed against Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 3 of 30 both the accused. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
5. During the trial, the prosecution examined 10 witnesses to prove its case against the accused persons. All the witnesses relevant to the case have been examined and cross-examined.
6. Sh. Kishan Lal (PW-1) deposed that on 24.3.2011 he was posted as Senior Superintendent of Post at Central Division Megdoot Bhawan, Delhi. On that day IO SI KP Shah served notice u/s 91 CrPC to produce original application of Binod Kumar and same is Ex.PW 1/A. Thereafter, PW1 produced the original application form of Binod Kumar vide letter dated 24.3.2011 which is Ex.PW 1/B. The original application form of Binod Kumar for recruitment to the cadre of Postman in Delhi Postal circle is Ex.PW 1/C and the same was seized vide seizure memo Ex.PW 1/D. Thereafter, IO recorded his statement u/s 161 Cr.PC. PW-1 was cross examined by the Ld. Counsel for the accused during which he stated that he has no personal knowledge about the present case and is deposing on the basis of record available.
7. Sh. Y.P. Pandey (PW-2) deposed in his examination that on 26.9.2010 he was posted as Senior Superintendent Post Office, New Delhi, South Division, Nehru Place, New Delhi 110019. On that day PW2 was in-charge of Direct Recruitment of Postman. On that day, exam was being conducted at B.R. Mehta Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 4 of 30 Vidhya Bhawan, Lajpat Nagar IV New Delhi. During the course of the exam, Sh. LL Ahriwar visiting officer and ADM (PLI), found Chief PMG, Delhi Circle, had come for checking and when they entered in room no. 210, the invigilator of said room namely Sh. Ved Prakash Sharma pointed out towards irregularities in candidate appearing on roll no. NDCD/OBC/107/POSTMAN/DR/2010 issued in favour of Sh. Binod Kumar S/o Sh. Bhagwan Das. He pointed out that the photograph of the candidate is not attested by the issuing authority and also his photo was not pasted, but stapled on the Hall Permit. Thereafter, Sh. LL. Ahirwar and Ved Prakash inquired the matter and found that the candidate who appeared in the examination is other than candidate Binod Kumar. On interrogation PW2 disclosed his identity as Mukesh Kumar S/o Sh. Bhagwan Das Pandit. He was not allowed to take second paper. Thereafter, they informed the police and police came at the spot and they handed over the proxy candidate Mukesh Kumar to the police. PW2 made a written complaint to the police which is Ex.PW 2/A. PW2 also handed over following documents to the IO i.e., 1) Hall permit no. NDCD/OBC/107/POSTMAN/DR/2010 which is Ex.PW 2/B, 2) Answer sheet of paper no. 1st is Ex.PW 2/C (running into 9 pages),
3) Letter no. B III/DR/POSTMAN/2010-11 dated 14.9.2010 which is Ex.PW 2/D, 4) the cover/ envelope of above said letter (Ex.PW 2/E), 5) Written Statement of Mukesh Kumar S/o Sh. Bhagwan Das on 26.9.2010 (Ex.PW 2/F). Thereafter, IO seized the documents vide seizure memo Ex.PW 2/G bearing signature of PW2. Both accused were identified by the witness. Thereafter, IO prepared the site plan Ex.PW 2/H at his instance. IO arrested the accused Mukesh Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 5 of 30 Kumar vide arrest memo Ex.PW 2/I and also conducted his personal search vide memo Ex.PW 2/J. Thereafter, IO recorded PW2's statement u/s 161 CrPC. PW-2 was duly cross-examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
8. Sh. LL Ahirwar (PW-3) deposed on 21.09.2010, he was appointed as Visiting Officer of the Direct Recruitment to the Cadre of Postman in the Delhi Circle at Balwant Rai Mehta, Vidya Bhawan, Lajpat Nagar 4, near Vikram Motor, which was proposed to be conducted on 26.09.2010 by the Director of Postal Service (Office of CPMG, Delhi) vide letter Rectt/R/RI/Con/Post Man/2010 which is Ex. PW-3/A. On 26.09.2010, he was posted as ADM (PLI) Office of CPMG, Delhi Circle, New Delhi-1. On that day, he visited at the abovesaid examination centre and on checking they found that one Mukesh Kumar was appearing in place of one Binod Kumar. Witness identified both the accused persons. When they checked the Hall Permit of Binod Kumar, they found that the photo was not attested by the Hall Permit Issuing Authority. Thereafter on suspicion, they apprehended him. PW3 briefly mentioned the status of the accused in the Hall Permit of the accused Binod Kumar which is Ex PW-3/B, from point A1 to A2. Thereafter, he called the police, and police came to the spot. Accused Mukesh Kumar stated that he is elder brother of Binod Kumar, who has not appeared today and he is appearing in place of him. Thereafter, they handed over the relevant documents application form, hall permit, answer sheet of the accused Binod Kumar to the police. Documents are Ex PW-2/B, Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 6 of 30 Ex PW-2/C, Ex PW-2/ F and the same were seized vide seizure memo Ex PW-2/G, bearing signatures of PW-3. Thereafter, IO arrested the accused vide arrest memo and conducted his personal search. He admitted that the Invigilator of room no. 210 Mr. Ved Prakash Sharma apprehended the accused Mukesh Kumar who was appearing in the name of Binod Kumar. PW-3 was duly cross- examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
9. Sh. Ved Prakash Sharma (PW-4) deposed in his examination that on 26.09.2010, he was posted as Post Master, Lajpat Nagar. On that day he was invigilator for the examination of Postman, Direct recruitment at Balwant Rai Mehta School, Lajpat Nagar-IV, New Delhi. PW4 was checking the Hall Permit/Admit Card of the candidates in the room number 210. During checking, he found that the Hall Permit/Admit Card of Binod Kumar was not having the photograph of the candidate affixed on it and it was also not attested by any Gazetted Officer. Observer, L L. Ahirwar also came in the room and he informed him about the irregularities on the Hall Permit of Binod Kumar. Thereafter, they investigated the matter and found that the candidate who appeared on the Hall Permit of Binod Kumar was not Binod Kumar but Mukesh Kumar. Thereafter, they informed about the matter to Y.P. Pandey, Examination In-charge (Senior Superintendent of the Post Office). PW4 called at number 100. Thereafter, police officials of PS Amar Colony also came at the spot. They handed over the accused along with Hall Permit and answer sheet written by accused to the IO.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 7 of 30Thereafter, Y. P. Pandey gave complaint to the police. Police seized the Hall Permit, Corrigendum letter No. 28, answer sheet and written statement of accused Mukesh Kumar vide seizure memo. IO arrested the accused Mukesh Kumar and conducted his personal search. IO recorded PW4's statement u/s 161 CrPC. Hall Permit of accused is Ex PW-3/B, bearing signatures at of PW-4 at point C at the back side of the page. Accused also confessed and wrote his apology letter before them. Photocopy of the same is Mark X and the same was seized by the IO vide Ex. PW2/G. Original of the same is seized vide memo Ex PW2/F. Information letter of department of post to accused for appearance in examination is Ex. PW-2/D. PW4 could not identify the accused as the matter is very old and PW4 only saw the accused for one hour. Ld. APP for the State put a leading question to the witness after seeking permission however PW-4 failed to identify the accused. PW-4 was duly cross- examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
10. Inspector Nitin Kumar (PW-5) came in the witness box and deposed on oath that on 26.09.2010, he along with Const. Vijay Kumar went to the spot i.e., Balwant Rai Vidya Bhawan School, Lajpat Nagar IV. They met complainant Sh. Y.P. Pandey who handed over to him the custody of accused Mukesh Kumar who appeared for examination of Direct Postman, in place of his brother Binod Kumar. Thereafter, he gave a written complaint to PW5 and PW5 made his endorsement Ex.PW5/A on the same. PW5 prepared rukka on the basis of endorsement and then the same was Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 8 of 30 handed over to Constable Vijay Kumar, who went to the PS and returned to the spot after registration of the FIR along with copy of the FIR and original rukka. He also handed over to PW5 hall permit, cover of registered letter, corrigendum letter, answer sheet and written statement of the accused which PW5 seized vide seizure memo Ex.PW2/G. Thereafter, PW5 prepared the site plan. PW5 further deposed that he interrogated the accused and recorded his disclosure statement which is Ex.PW5/B. Thereafter, he arrested the accused Mukesh Kumar and personally searched him. He also deposed that he recorded the statement of the witnesses and put the accused behind the bars. He finally deposed that on 27.09.2010, the accused was produced before the court and PW5 moved application for seeking specimen signature and handwriting and obtained the same before the court. Thereafter, PW5 was transferred from the concerned PS and he handed over the case file to the MHC(R). PW- 5 correctly identified accused Mukesh. However, during cross examination, it came to light that the accused identified by him is not accused Mukesh, but accused Binod and court had made the said observation after checking is identity card. PW-5 was duly cross- examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
11. Ct. Suresh (PW-6) came in deposition box and stated on oath that on 05.02.2011, he had joined investigation along with SI K.P. Sah. On that day, at about 2.00 pm, accused Binod had surrendered himself in the PS. The accused was arrested by the IO at PS vide arrest memo Ex. PW6/A. IO conducted the personal search Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 9 of 30 of the accused in his presence vide Ex. PW6/B. IO had obtained the specimen signatures of the accused on blank papers in his presence. The accused was produced before the court and was sent to the JC. He also identified the accused. PW6 denied all the suggestions which were put to him by ld. defence counsel.
12. Sh. S.P. Dubey (PW-7) stated on oath that on 26.09.2010 he was Invigilator for examination of Postman, direct recruitment. In the said examination room, Sh. Ved Prakash Sharma was also appointed as Invigilator and PW7 was Junior Invigilator. During the scrutiny of the documents, one candidate was found suspicious by Invigilator Ved Prakash and other visiting officer and thereafter, the said candidate was taken out of the examination room. Thereafter, PW7 remained in the examination room and he did not know what other proceedings had occurred outside the examination room. PW7 could not identify the said suspicious candidate. PW7 was cross-examined by Ld. APP for the State as he turned hostile and resiled from his previous statement (Mark A). He further denied the suggestion that police had seized the documents of the suspicious candidate in his presence. He was confronted with the seizure memo Ex PW2/G where he admitted his signature at point D on the same and stated that his signature was obtained by the police on a blank paper. PW 7 was cross-examined by the defence counsel where he admitted that no proceedings were done by the police or the Invigilating Officer/visiting officer in his presence. He also admitted that no documents were seized in his presence by the police or Invigilating Officer. He further admitted Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 10 of 30 that police was not called in his presence. He also admitted that he did not know how many candidates were found suspicious by the Invigilating Officer or visiting officer on that day. He further admitted that police had never recorded his statement w.r.t the present case.
13. HC Rishi Kumar (PW-8) came in the witness box and stated on oath that on 12.07.2011, he had taken 34 documents to FSL, Rohini vide Road Certificate bearing no. 146/21/11 i.e., Mark A. He took receiving of the same vide acknowledgement dated 12.07.2011 (Ex. PW8/A), and handed over the same to IO. During the time, when the documents remained in his possession, no tampering was done with them. PW8 was duly cross-examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
14. Insp. K.P. Sah (PW-9) came in the witness box and stated on oath that on 26.11.2010, the present case was marked to him for further investigation. He got received the NBW of accused Binod Kumar and searched him at his native place, but he was not found there. On 05.02.2011, he surrendered himself at PS Amar Colony and PW9 arrested the accused. The arrest memo of the accused Binod Kumar is Ex. PW6/A. Personal search memo of accused is Ex. PW6/B. PW9 also recorded the disclosure statement of accused. He obtained the specimen signature of the accused by the order of the Court. He correctly identified accused Binod Kumar. He also deposed that on 24.02.2011, accused Mukesh Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 11 of 30 Kumar had placed an application in the court for cancellation of his bail bonds. PW9 had attended the court on this date and had apprised the court that the original name of this Mukesh Kumar is Santosh Kumar and he had wrongly mentioned his name at the time of his arrest. Thereafter, had collected the original application form from the postal department through seizure memo. All the relevant documents were sent to FSL, Rohini, Delhi for expert opinion. He also identified accused Mukesh. PW-9 was duly cross-examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
15. Dr. Virender Singh (PW-10) deposed that on 28.02.2013, he was posted at FSL Rohini as Assistant Director (Documents). He has examined the documents S1 to S15 and S16 to S19 and other documents are Q1 to Q8 which was sent by the IO for examination. After the examination, PW10 prepared the report FSL2011/D3820, i.e., Ex. PW10/A and the opinion is marked B1 to B2. PW-10 was duly cross-examined by ld. counsel for the accused persons at length and he denied all contrary suggestions.
16. The accused persons admitted the genuineness (without contents) of FIR registered in the present case (Ex. A-1) and statement of Ct. Vijay (Ex. A-2); Therefore, formal examination of witnesses to prove the aforesaid documents was dispensed with under section 294 CrPC.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 12 of 3017. Thereafter, to enable the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons was recorded without oath under Section 313(1)(b) CrPC in question-answer form. Accused persons denied the incriminating evidence against them. Accused Mukesh @ Santosh @ Jainendra stated that he has been falsely implicated. On the relevant date he was giving his own exam under the name Jainender. As there was some argument going on between Sh. Binod Kumar and PW3 LL Ahirwar in the examination hall regarding the photograph on the hall permit, he intervened in between and offered explanation on behalf of Binod Kumar. After this Sh. LL Ahirwar got angry and stated to him "tum bahot chaudhary ban rahe ho, chalo tumhare khilaf bhi case banata hu". Thereafter, he took both Mukesh and Binod Kumar in a separate room and took away his admit card. Thereafter he called police and instructed SI Nitin to arrest him. SI Nitin Kumar told Binod Kumar to go back home. Sh. LL Ahirwar took away his answersheet, admit card and all the documents related to the examination and filed the present case against him. Accused Binod Kumar stated that he has been falsely implicated and that on the said date he was present in the examination hall and was giving his exam. He stated that his photograph was not properly affixed therefore he went to Mr. Ahirwar and requested him to staple the photograph in his admit card however he snatched his admit card and made false accusations. He stated that Mukesh was also giving the abovesaid exam in the same hall.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 13 of 3018. Pursuant thereto, both the accused stated that they did not wish to lead defence evidence. Thus, the matter was fixed for final arguments. Arguments of both sides were heard at length and record, including written arguments on behalf of the accused persons has been perused carefully.
ARGUMENTS -
19. Ld. APP for the State argued that all the ingredients of the offences are fulfilled in the present case. He argued that the offence occurred during the postman exam where accused Mukesh@Jainender appeared in the examination instead of accused Binod Kumar and was caught red-handed. He submitted that on the hall ticket, the photo of the candidate was stapled instead of being pasted due to which a doubt arose and the fact of impersonation was discovered by the invigilators. He argued that the recovery of documents of accused Binod Kumar from accused Mukesh@Jainender proves conspiracy as well as the other offences with which the accused persons have been charged. He also contended that the ocular testimony of the prosecution witnesses clearly establishes that the accused persons committed the offence of cheating, cheating by impersonation, forgery and using forged document as genuine after conspiring with each other. He also adverted to the confession made by the accused to lend support to the prosecution case. Thus, it is prayed that the accused persons be convicted for the said offences.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 14 of 3020. Per contra, learned counsel for the accused persons vehemently contended that the State has failed to establish its case beyond reasonable doubt. He pointed out that both the accused denied all the allegations levelled against them in their statement under section 313 CrPC and both stated that they were each giving their own examination in the examination hall and have been falsely implicated. Ld. Counsel for the accused persons urged that none of the witnesses should have identified accused Binod Kumar if the prosecution story is to be believed, however PW-2 and PW-3 identified both the accused and PW-5 also identified accused Binod Kumar even though the said accused was not giving the exam. Thus, their version is not reliable. It was also pointed out by ld. Counsel for the accused persons that the invigilators did not identify the accused persons despite being crucial prosecution witnesses.
21. Ld. Counsel for the accused persons also argued that the prosecution did not file the attendance sheet on record even though PW-9 stated that he had sent attendance sheet, inter alia, to FSL for examination. He argued that this circumstance goes in favour of the accused persons because had the attendance sheet been filed, it would show that both accused were attending on that day and they were falsely implicated in the present case. It was also argued on behalf of the accused persons that the photo and signature on the application form and that hall permit are the same and there is no case of change of photo therefore the allegations are not proved by the prosecution. It was urged that the FSL report did not give opinion on documents S-16 to S-19 related to accused Binod, Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 15 of 30 therefore this report also does not support the prosecution case. Lastly, it was contended that allegations regarding forgery and making of false document for the purpose of cheating has not been proved by the prosecution.
22. Ld. Counsel for the accused persons also relied upon the judgments in Sri Indra Das v. State of Assam Criminal Appeal no. 1383 of 2007 decided on 10.02.2011, Indra Dalal v. State of Haryana VI(2015)SLT 659, Pandurang Kalu Patil and Anr. v. State of Maharashtra JT2002(1)SC229 to buttress his contention that the confession of co-accused is a weak piece of evidence and it is not safe to rely upon the same and that disclosure statement is not admissible in evidence. As such, it is prayed that the accused persons deserve to be acquitted of the said offences.
23. Before dwelling into the facts of the present case, it would be apt to discuss the legal standards required to be met by both sides. In criminal law, the burden of proving the guilt of the accused exclusively lies on the prosecution which must prove the offences charged beyond reasonable doubt. The benefit of doubt, if any, must go in favour of the accused.
APPRECIATION OF EVIDENCE -
24. The case of the prosecution is that on 26.09.2010 between 10 am to 12 pm at Room no. 210 examination hall, Balwant Rai Mehta Vidya School, Lajpat Nagar- IV, New Delhi, accused Mukesh@Jainender appeared for the examination for the Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 16 of 30 cadre of Postman personating accused Binod Kumar and in criminal conspiracy with him by using his admit card with intention to cheat the Board conducting the examination. The accused persons thereby dishonestly induced the complainant/invigilator/supervising officer and accused Mukesh@Jainender wrote the exam in place of accused Binod Kumar thus, they cheated the Board and committed offences under section 419, 420, 468, 471 and 120-B IPC. Let us examine whether the offences alleged are made out in the present case.
25. The complaint (Ex. PW2/A) made by Y.P. Pandey, Senior Superintendent Post Office, who was in charge of Direct Recruitment of Postman at that time has been proved by him. He also handed over the hall permit (Ex. PW2/B), answer sheet of paper no. 1 (Ex. PW2/C), letter no. B-III/DR/POSTMAN/2010-11 dated 14.09.2010 (Ex. PW2/D) with its cover/envelope (Ex. PW2/E) and written statement of accused Mukesh@Jainender Kumar dated 26.09.2010 (Ex. PW2/F) to the IO who seized the same. He proved the arrest of accused Mukesh@Jainender Kumar but he was neither present in the examination hall at the time of checking nor he had checked the admit card of the accused. In sum, he was not an eye-witness to the chain of events prior to the same being brought to his knowledge by the invigilator. His testimony is relevant to the extent of proving the complaint, the arrest of accused Mukesh@Jainender and to prove the handing over and seizing of abovementioned documents.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 17 of 3026. PW-3 was the visiting officer of the Direct Recruitment to the cadre of Postman in Delhi Circle. He categorically deposed that during checking in the examination in question, he found that Mukesh@Jainender Kumar was appearing in place of Binod Kumar. Upon checking, he found that the photo on the hall permit of Binod Kumar was not attested by the hall permit issuing authority and thus accused Mukesh@Jainender was apprehended by the invigilator Ved Prakash. He also proved his writing on the hall permit of accused Binod Kumar (Ex. PW3/B) from point A-1 to A-2 which contains the brief status of the accused Mukesh@Jainender Kumar appearing instead of accused Binod and signature of the candidate not being attested in photograph. He informed PW-2 who informed the police. He also deposed that accused Mukesh@Jainender stated that he was appearing in place of his elder brother Binod Kumar who had not appeared that day. He also confirmed about handing over of the documents mentioned by PW-2 and proved the arrest of accused Mukesh@Jainender. Minor discrepancy can be seen in the testimony of PW-3 in his cross-examination regarding apprehension of accused Mukesh@Jainender at the time of second paper however, it is not fatal to the prosecution case.
27. The testimony of PW-4 is crucial as he was the invigilator at the time. He categorically deposed that while checking the admit card/hall permits of candidates in room no. 210, he found that the hall permit of Binod Kumar did not have a photograph affixed and it was not attested by any Gazetted Officer.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 18 of 30He informed PW-3 and upon investigation into the circumstances, they found that accused Mukesh@Jainender was appearing in place of Binod Kumar. He confirmed the version of the other prosecution witnesses as to the chain of events thereafter and proved the arrest of accused Mukesh@Jainender. It emerged from his cross- examination that the accused could not produce ID card of candidate Binod and that the signatures of accused on the hall permit and attendance sheet were not matching. Moreover, though the photographs of the candidate on the hall permit and application form are the same, the photo on the hall permit was changed and did not bear the signature of issuer of hall permit. He also deposed that the department pastes and attests photographs on hall permits which was not the case with the hall permit of candidate Binod.
28. PW-5 is the first IO whose testimony reveals that he went to the spot upon receiving the information and took custody of accused Mukesh@Jainender who appeared instead of his brother Binod Kumar. He proved the rukka Ex. PW2/A on the basis of which the FIR was registered. He deposed about arresting accused Mukesh@Jainender and conducting the rest of the investigation. He also got specimen signature and handwriting of accused Mukesh@Jainender (Ex. PW5/D(colly)). The relevant documents were sent for comparison/expert opinion by PW-9, the second IO.
29. What emerges beyond reasonable doubt from the abovementioned testimonies of PW-2 to PW-5 is that accused Mukesh@Jainender appeared and wrote in the examination in place Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 19 of 30 of accused Binod and he was apprehended on the spot. Documents pertaining to accused Binod Kumar were found in possession of accused Mukesh@Jainender as can be seen from the ocular evidence as well as seizure memo and documents on record. The chain of documents and events stands proved beyond reasonable doubt by the prosecution. The prosecution witnesses withstood the test of cross-examination and supported the prosecution version as well as corroborated each other's version. Their testimonies are coherent and consistent. The writing on the hall permit by PW-3 further lends credence to the prosecution version as it was done in the same course of events as proved by PW-3 and the same has not been disputed by the accused. The said fact is relevant under section 6 of Indian Evidence Act which provides that facts which form part of the same transaction are relevant.
30. Furthermore, the FSL report (Ex. PW10/A) clearly linked the author of the questioned writing with the specimen writing of accused Mukesh@Jainender. This report is admissible under Section 293 Cr.P.C. but has still been proved by PW10. Comparison was made between questioned writings and signatures marked Q1 to Q8 on Hall Permit, handwritten answer sheet and statement of Mukesh@Jainender Kumar dated 24.04.2010 with standard writings and signatures marked S1 to S15 of Mukesh@Jainender Kumar and S16 to S19 and A1 of Binod Kumar. The expert opinion is that the person who wrote S1 to S15 also wrote Q1 to Q8. The report also mentions that the similarities are significant and sufficient and cannot be attributed to accidental Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 20 of 30 coincidence. Therefore, it is clear that accused Mukesh@Jainender wrote the examination in place of accused Binod, otherwise the writing would have matched with accused Binod's. This scientific evidence coupled with the direct oral evidence of the prosecution witnesses as well as the other documentary evidence lead to the irresistible conclusion that accused Mukesh@Jainender appeared in the examination instead of accused Binod and also wrote the examination personating accused Binod.
Defence of the accused persons:
31. The defences raised on behalf of the accused persons are not convincing for the reasons discussed hereinafter. One of the contentions was that the FSL report did not give opinion on S-16 to S-19 (specimen of accused Binod). However, bare perusal of the report shows that the said documents were examined by the expert and made part of the report as well. Therefore, there is no force in the aforementioned contention. It was also argued on behalf of the accused persons that the photo and signature on the application form and that hall permit are the same and there is no case of change of photo however, this argument also stands nullified in view of the expert opinion/FSL report that the signature matched writing of accused Mukesh @ Jainender. The fact that the photo of the candidate on the hall permit was stapled rather than pasted and that it was not attested by the hall permit issuing authority/Gazetted officer can be seen from bare perusal of the said hall permit and the oral evidence of the prosecution witnesses.
Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 21 of 3032. Another major defence of the accused persons revolves around their identification by the prosecution witnesses. While wrong identification of an accused by a witness in court can be a significant setback to the case of the prosecution, it is not necessarily fatal to the prosecution case. Eyewitness identification is also prone to errors. If there is additional evidence to support the prosecution version, such as forensic evidence or corroborating witness statements, a finding of conviction may still be given. Therefore, the weight given to an eyewitness identification depends on the facts and circumstances of the case.
33. In the present case, PW-2 and PW-3 identified both the accused even though they should have identified only accused Mukesh@Jainender. PW-5 identified accused Mukesh@Jainender however an observation was made by the court that he identified accused Binod as accused Mukesh@Jainender. The aforesaid aberrations could be due to several reasons. Even the factor that there was a confusion regarding the real name of the candidate could play a role. The witnesses may have somehow got to know about/see the accused persons before they identified them in court. It is also noteworthy that PW-5 denied all contrary suggestions of ld. Counsel for the accused on this point and his deviation is a minor one considering other evidence on record. Next, PW-4 stated that he could not identify the accused as the matter was very old and he only saw him for one hour. This is neither a positive identification nor a negative one. It is a matter of fact that PW-4 was examined as a witness almost eight years after the incident and Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 22 of 30 such a long gap cannot be held to the detriment of the prosecution case. Similarly, PW-7 could not identify the suspicious candidate/accused and he turned hostile. It is settled law that 'falsus in uno falsus in omnibus' doctrine is not applicable in India and those portions of the testimony which support the prosecution case may be read in evidence. PW-7 has supported the prosecution case to the extent that one candidate was found suspicious by PW-4 and the visiting officer and the same lends credence to the prosecution version. Lastly, PW-9 correctly identified accused Binod who had surrendered later on.
34. In light of the aforementioned facts and circumstances and other evidence present on record, namely the consistent deposition of the prosecution witnesses, the FSL report confirming the prosecution version, complete chain of documentary evidence and arrest of accused Mukesh@Jainender from the spot, undue weight need not be given to the identification aspect in the present case and the defence of the accused persons cannot be sustained.
35. Next, it is pertinent to note that the prosecution witnesses (officials conducting/supervising/invigilating the exam) have no motive to falsely implicate the accused persons. It would also be extremely absurd for an IO to deliberately not arrest an accused present at the spot so as to falsely implicate them both in such a case. Therefore, this court finds no force in the argument of the ld. Counsel for the accused persons that the accused were Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 23 of 30 falsely implicated and accused Binod was writing his own exam but deliberately not arrested on the spot.
36. It was contended on behalf of the accused persons that the lack of seizure of the attendance sheet destroys the prosecution case. It is settled law that defective investigation is not a ground for acquittal as this would tantamount to playing into the hands of the investigator. Reliance is placed on Karnel Singh vs. State of M.P. 1995 (5) SCC 518 in this regard. Thus, this court finds that the aforementioned lacuna in the investigation does not go to the root of the prosecution case which stands established beyond reasonable doubt even in the absence of such attendance sheet in light of the other oral and documentary evidence on record.
37. In the instant case, the defences raised by the accused have not been substantiated by them by way of any documentary or oral evidence or by pointing out major loopholes in the case of the prosecution. The discrepancies in cross-examination of prosecution witnesses are not major and do not go to the root of the matter. The defence of the accused persons that they were each writing their own exam could have easily been established by them by producing the hall permit of accused Mukesh@Jainender or by summoning the application form and other relevant documents of accused Mukesh@Jainender, however, no such steps were taken by the defence. Simply stating the same in the statement under section 313 CrPC does not amount to evidence. (Reference may be had to V.S. Yadav v. Reena 172 (2010) DLT 561 in this regard). This only Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 24 of 30 goes on to show that the defence raised by the accused is improbable and a desperate attempt to escape their culpability.
Offence-wise demarcation:
38. Cheating by personation is made punishable under section 419 IPC. As per section 416 IPC, a person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
39. Section 420 IPC punishes cheating and thereby dishonestly inducing the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. Cheating is defined under section 415 IPC as follows - whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
40. As already discussed above, so far as the offence of cheating by personation is concerned, it is clearly established by the Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 25 of 30 oral and documentary evidence placed on record by the prosecution, particularly testimonies of PW-3 and PW-4, that accused Mukesh@Jainender appeared and wrote the exam pretending to be accused Binod Kumar.
41. Additionally, accused Mukesh@Jainender by pretending to be accused Binod Kumar, deceived and dishonestly induced the invigilator/whoever allowed him access to the examination room to deliver the answer sheet to him to write the exam and thereby he cheated the Department/officials conducting the examination. The invigilator/person concerned would not have allowed him to enter the examination hall or to write the exam but for the deception. Therefore, it is proved beyond reasonable doubt that he committed the offence under section 420 IPC as well.
42. Section 468 IPC provides punishment for forgery for purpose of cheating. Section 463 IPC defines forgery as whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 471 IPC punishes whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged.Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 26 of 30
43. In the present case, forgery is proved by the firstly, testimony of PW-4; secondly that the fact Ex. PW2/B bears roll number and details of Binod Kumar however it was affixed with a stapled photograph of accused Binod Kumar (instead of pasted) and the said photograph was not attested by the authority issuing the hall permit/gazetted officer; and thirdly, the opinion of the FSL expert that the signature of 'Binod Kumar' on Ex. PW2/B match with the handwriting of accused Mukesh@Jainender. The aforesaid amount to material alteration and consequently amount to forgery.
Reliance is not being placed on the confession of accused Mukesh@Jainender (Ex. PW2/F) as it is not clear from the testimonies of the PW2 and PW4 whether the same was given while the accused was in custody or not. However, as accused Mukesh@Jainender used the forged hall permit to gain entry in the examination hall and consequently the answer sheet, the offence u/s 471 IPC also stands established.
44. The accused persons have been charged for the offence under Section 120B IPC, alongwith the main offences. Section 120B (2) IPC requires the offender to be party to a criminal conspiracy to commit an offence other than those covered in section 120B (1). With regard to the proof of conspiracy, the observations of Hon'ble Apex Court in Pratapbhai Hamirbhai Solanki v. State of Gujarat, (2013) 1 SCC 613 are relevant. The same is reproduced below:
"23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 27 of 30 should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
45. The prosecution has proved by producing the original application form bearing the photograph of Binod Kumar as Ex.PW1/C that Binod Kumar had applied for appearing in the examination and the subject of paper I is "an essay in English/Hindi" which is mentioned as one of the papers for the said examination. The hall permit i.e., Ex.PW2/B which was recovered from impersonator Mukesh@Jainender bears roll no. NDCD/ OBC/ 107/ Postman/ DR/ 2010 and is in the name of accused Binod Kumar. Same shows the examination centre as Balwant Rai Mehta Vidya Bhawan, Lajpat Nagar- IV, New Delhi. It bears signatures of the candidate in two places, one being under the heading 'Paper I', which have been opined to be done by accused Mukesh@Jainender. Under Section 106 of the Indian Evidence Act, 1872, onus to prove as to how the document pertaining to accused Binod Kumar were found in possession of accused Mukesh@Jainender, was that of accused Mukesh@Jainender himself, he being in special knowledge of the fact. Similarly, accused Binod Kumar was to explain as to how his hall permit and other documents were in possession of accused Mukesh@Jainender. Thus, from the said documents no other inference can be drawn except that both the accused conspired to cheat the Department/officials conducting the Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 28 of 30 examination by causing accused Mukesh@Jainender to appear in the examination in place of Binod Kumar.
46. A conspiracy is usually hatched in a secret making it almost impossible to produce any direct evidence about the date of the formation of the criminal conspiracy, the persons involved in it or the object of such conspiracy or how such object is to be carried out however the same can be inferred from the facts and circumstances of the case. In the present case, prosecution has been able to establish a chain of events that led to discovery of impersonation and other offences committed by accused Mukesh@Jainender. The same could not have been possible without the active involvement and agreement of accused Binod Kumar. Thus, offence u/s 120B IPC stands proved against both the accused. Resultantly, accused Binod Kumar is also guilty for the offences u/s 419, 420, 468, 471 read with section 120B, IPC.
47. To sum up the above discussion, to bring home the guilt of the accused persons the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The testimony of official witnesses is coherent and directly implicates the accused persons. Minor discrepancies in the testimonies do not affect the root of the matter. Pertinently, the scientific evidence, i.e., the FSL result conclusively establishes the charge against the accused persons. Both accused persons conspired with each other to commit the already discussed offences and thus they are both liable for the offences charged. The defence Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 29 of 30 has failed to punch a hole in the consistent testimony of the prosecution witnesses.
CONCLUSION -
48. Resultantly, accused Binod Kumar and Mukesh Kumar @ Santosh @ Jainendra are CONVICTED for the offences under section 419/420/468/471 IPC read with 120B of the Indian Penal Code, 1860.
49. Let the convicts be heard separately on sentence.
50. Copy of the judgment be provided to the convicts, free of cost.
Pronounced in open court on 19.04.2023 This judgment comprises of 30 signed pages.
(NEHA BARUPAL) Metropolitan Magistrate - 12 South-East District, Saket Courts, New Delhi/19.04.2023 Cr. Case No. 90107/2016 State v. Vinod & Anr. Page 30 of 30