Delhi District Court
State vs Hardeep Singh Etc., on 13 April, 2011
(P/1)
FIR NO. 402/99
P.S. IGI AIRPORT
U/S 420/471/120-B IPC
IN THE COURT OF SH RAJESH KUMAR GOEL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02 ,
DWARKA COURTS
FIR NO. 402/99
P.S. IGI AIRPORT
U/S 420/471/120-B IPC
Date of Institution : 11/05/2000
Date of final argument : 13/04/2011
Date of final order : 13/04/2011
JUDGEMENT :
A. Sl. No. of the Case : 02403R0009492000 B. Date of commission of the offence : on or before 19/10/1999 C. Name of the complainant : Sanjay Singh ACIO-II D. Name of the Accused persons : 1. Hardeep Singh s/o Bhajan Singh ( already stands convicted )
2. Rohit Michal s/o Sh.
Eugene Michal r/o 47/10 Old Rajinder Nagar, New Delhi
3. Ram Gopal s/o Shri Munshi Ram r/o B-8/58 Type-I, Police Line Pitam Pura, New Delhi
4. Mohinder Nath Mandal s/o Shri K.K. Mandal r/o D-2 Nightaingale apartment, Vikas Puri New Delhi E. Offence complained of : U/S 420/471/120-B IPC F. Plea of the accused persons : Pleaded not guilty (P1of 21) state vs Hardeep Singh etc., (P/2) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC G. Final order : Accused Rohit Michal and Ram Gopal stands acquitted.
Accused Mohinder Nath Mandal stands convicted u/s 420/471/120 B IPC.
H. Date of such order : 13/04/2011 BRIEF STATEMENT OF REASON FOR THE DECISION :
1. Brief facts of the case are that in the intervening night of 18/191099 one pax namely Hardeep Singh (one of the accused, already stands convicted) was apprehended who intended to go to Canada. On scrutiny of his documents it was found that the Visa sheet number W918990315 was chemically washed and tempered. During the interrogation, the said pax revealed that the above Canadian Visa Sheet was handed over to him by his agent namely Mohinder Nath Mandal (accused No.4) having mobile No. 9811056765 and another phone No. 5514386 for a consideration of Rs. 4 lakhs.
(P2of 21) state vs Hardeep Singh etc., (P/3) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC
2. The allegations against the accused persons namely Rohit Michal, Ram Gopal and Mohender Nath Mandal are that on or before 19/10/1999, they all entered into a criminal conspiracy alongwith co accused Hardeep Singh to facilitate his journey by arranging said forged visa sheet, on the basis of which and in furtherance of the said criminal conspiracy, their coaccused Hardeep Singh has cheated the IGI Airport authority to get the immigration clearance and used the said forged visa as genuine. Allegations against the accused Rohit Michal and Ram Gopal are that they facilitated the immigration clearance and in the issuance of the boarding card and ticket of the accused Hardeep Singh and accused Mohinder Nath Mandal had arranged the said forged visa for unlawful consideration.
3. After investigation , the chargesheet was filed. Prima facie a case u/s 420/471/120B IPC was made out against the accused persons. After compliance of section 207 Cr. P.C., all the accused (P3of 21) state vs Hardeep Singh etc., (P/4) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC persons were charged accordingly by the Ld. Predecessor of this court, to which accused Hardeep Singh pleaded guilty and he was convicted. Accused Rohit Michal , Ram Gopal and Mohinder Nath Mandal pleaded not guilty and claimed trial.
4. In support of its case, Prosecution has examined eight witnesses.
5. PW 1 Bhajan Singh is the father of the accused Hardeep Singh .
6. PW 2 Ct. Kul Awtar and PW 3 Ct Devinder Singh are just formal witnesses. PW 6 ASI Dharampal is the Duty Officer who proved the registration of the FIR as Ex. PW 6/A.
7. PW 4 Inspector Jawahar Lal was posted as I.C. Wing in (P4of 21) state vs Hardeep Singh etc., (P/5) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC departure left at IGI Airport. He had asked Sanjay Singh then ACIOII (PW 7) to get the case registered. PW 7 SI Sanjay Singh was posted as ACIOII and was working as Clearing Officer in departure left wing immigration who prepared the rukka Ex. PW 7/A and handed over the same alongwith the documents to the Ct. Devender Singh for the registration of the FIR.
8. PW 5 Ved Prakash official from RPO Jalandhar has proved the passport verification report of the passport No. A4765222 as Ex. PW 5/A.
9. PW 8 Mr. Jean Francois Devid was working as second security in Canadian High Commission and he appeared on behalf of Mr. Carrol vide authorisation letter Ex. PW 8/A and he proved the letter of Mr. Larry Carrol as Ex. PW 8/B. (P5of 21) state vs Hardeep Singh etc., (P/6) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC
10. Thereafter prosecution evidence was closed and the statement of the accused persons namely Ram Gopal, Rohit Michal and Mohinder Nath Mandal u/s 313 Cr.P.C were recorded wherein they denied the allegations made against them. However, they opted to lead evidence in their defence.
11. Accused Ram Gopal has examined one H.C. Amarnath as DW 1. Accused Mohinder Nath Mandal has examined one Shri Jasjeet Singh as DW 2 and himself as DW 4 and accused Rohit Michal has examined one Mr. Parvez Alamgir Khan as DW 3.
12. I have perused the record and heard the Ld. Counsel for the accused persons and the Ld. APP for the state.
13. First of all take the case as against accused Mahinder Nath Mandal. In this regard the testimony of PW1 Bhajan Singh is (P6of 21) state vs Hardeep Singh etc., (P/7) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC material . His testimony is not so lengthy , therefore, for the sake of convenience same is reproduced as follows:
ON SA:
'..........I had been residing on the above said address . My son Hardip Singh wanted to go Canada so I contacted agent Mahinder Nath Mandal r/o Vikash Puri. He agreed to sent my son Hardip Singh to Canada and asked me to give Rs 2.5 lacs and the passport of my son. I gave the passport to Sh Mandal earlier and on the date of flight I handed over Rs 2.5 lacs to Mahinder Singh Mandal. I had also given Rs 2.5 lacs to Mahinder Singh Mandal the time of handling over the passport. Mandal directed my son to meet one Rohit Micheal or in the Airport. During the checking of immigration Hardip Singh was apprehended as his passport was having fake visa for Canada . I had to pay to Rs Two lacs after reaching Canada. When I asked for money accused refused back to return the money. Mohinder Singh Mandal is present in the court..."
14. PW1 was not cross examined by the accused Mahinder Nath Mandal. From the record it is evident that accused Mahinder Nath Mandal has moved an application u/s 311 CrPC making the request to recall PW1 for his cross examination . PW1 was recalled subject to the cost of Rs 5000/ . Vide order dated 10.12.2008 , this court observed that accused Mahinder Nath Mandal has not deposited the said amount. Accordingly, on 10.12.2008 , vide detailed order , this (P7of 21) state vs Hardeep Singh etc., (P/8) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC court observed that accused Mahinder Nath Mandal has not complied the conditions vide which the PW1 had been recalled, therefore, the opportunity of the accused Mahinder Nath Mandal to cross examine PW1 , PW7 and PW8 was closed. Meaning thereby, the testimonies of PW1 , PW7 and PW8 qua accused Mahinder Nath Mandal has gone unchallenged and unrebutted.
15. PW1 Bhajan Singh has categorically stated that he had contacted the accused Mahinder Nath mandal resident of Vikas Puri , who has agreed to sent his son to Canada and asked him to given Rs 2.5 lacs. PW1 gave the passport and Rs 2.5 lacs to accused Mahinder Nath Mandal. At the time of handing over of the passport , accused Mahinder Nath Mandal had further directed that his son will meet one Rohit Michal at the Airport but he was apprehended on the ground that his passport is having fake visa.
(P8of 21) state vs Hardeep Singh etc., (P/9) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC
16. Even as per the disclosure statement made to the immigration authorities at the time when accused Hardip Singh was apprehended he had stated that his journey was arranged by accused Mahinder Nath Mandal and he has also given the mobile number of accused Mahinder Nath Mandal.
17. PW7 S.I Sanjay Singh who was working as ACIO II deposed that during immigration clearance one pax Hardip Singh who intended to go to Canada was handed over to him by Incharge wing Inspector Jawahar Lal ( PW4) alongwith Canadian Visa sheet . On scrutiny of the document it was found that visa sticker has been chemically washed and tampered. On interrogation it was revealed that aforesaid visa was handed over to him by one agent Mahinder Nath Mandal having mobile number 9811056765 and another number 5514386 , for a consideration of Rs four lacs.
(P9of 21) state vs Hardeep Singh etc., (P/10) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC
18. Aforesaid testimony of PW7 qua accused Mahinder Nath Mandal has gone unrebutted and unchallenged and there is nothing on record to disbelieve the same. Rather , during statement recorded u/s 313 CrPC , accused Mahinde Nath Mandal had admitted that about 10 years ago , he was having mobile number 9811056765 and number 5514386 which was installed at his residence.
19. PW2 Ct. Kulavtar deposed that one Hardip Singh was arrested and his personal search was carried out vide ExPW2/A. PW4 Inspector Jawahar Lal deposed that on 19.10.1999, he was posted as IC wing in Departure wing in FRRO Unit. One passenger came on the counter of HC Ram Gopal . He was apprehended and on interrogation , it was revealed that he had been asked to go to the counter of HC Ram Gopal. PW4 asked ACIO Sanjay Singh (PW7) to get the case registered.
20. PW8 Mr. Jean Francois David , then second secretary in (P10of 21) state vs Hardeep Singh etc., (P/11) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC the Canadian High Commission appeared before this court court and deposed that he has been authorized to appear on behalf of Mr. Carrol vide authorization letter ExPW8/A and he identified the signatures of Mr. Carrol on the letter ExPW8/B. PW8 has also not been cross examined by the accused Mahinder Nath Mandal despite opportunities. A careful perusal of the letter ExPW8/B shows that Canadian visa in question is not genuine and same is forged and counterfeit . From the testimony of prosecution witnesses it stands proved that on 18/191099 accused Hardeep Singh was apprehended at IGI Airport . On scrutiny of his documents it was found that the Visa sheet number W918990315 was chemically washed and tempered and it was arranged by accused Mahinder Nath Mandal for unlawful consideration.
21. It is true that accused Mahinder Nath Mandal has examined two witnesses in his defence but the same will not help him. He has tried to prove that during the period between 17.10.1999 , and (P11of 21) state vs Hardeep Singh etc., (P/12) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC 21.10.1999 , he was not available in Delhi . I am of the opinion that even if during that period accused Mahinder Nath Mandal was not available in Delhi , it does not make any difference . The criminal conspiracy was entered into on or before 19.10.1999 . It is not the case of the prosecution that everything took place between 17.10.1999 and 21.10.1999.
22. The gist of the offence of the criminal conspiracy is an agreement to break the law . In most of such cases, proof of conspiracy is largely based upon the circumstances and the agreement can be proved by necessary implications. The conspiracy is hatched in secrecy and it is impossible to adduce direct evidence in proof. Privacy and secrecy are most characterstic of a conspiracy and direct evidence in proof of a conspiracy are seldom available. In the present case , there are sufficient evidence to establish the involvment of the accused Mahinder Nath Mandal in the commission of the present offence.
(P12of 21) state vs Hardeep Singh etc., (P/13) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC
23. Now, take the case as against the accused Rohit Michal and Ram Gopal. As aforesaid stated prosecution has examined eight witnesses . If the testimonies of these witnesses is put to close scrutiny it becomes crystal clear that their testimonies are not sufficient to convict the accused Rohit Michal and Ram Gopal . Allegations against accused Rohit Michal and Ram Gopal are that they facilitated the immigration clearance of the accused Hardip Singh by issuing boarding pass and tickets.
24. PW1 Bhajan Singh, who is the only material witness has said nothing against these accused person . He is talking about co accused Mahinder Nath Mandal . He has merely stated that Mahinder Nath Mandal has asked his son to met Rohit Michal , except this there is no other evidence against them . During his cross examination , PW1 Bhajan Singh admitted that he was never called for the identification of (P13of 21) state vs Hardeep Singh etc., (P/14) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC the accused Rohit Michal . Admittedly, no transaction took place between him and the accused Rohit Michal and HC Ram Gopal . The prosecution has miserably failed to establish the chain of the circumstances qua the accused Rohit Michal and HC Ram Gopal .
25. PW2 Ct. Kulavtar and PW 3 Const. Devinder Singh are just formal witnesses . Pw4 Inspector Jawahar lal although deposed that one passenger came on the counter of Ram Gopal and on raising suspicion , he reached the counter and interrogated the pax Hardip Singh who disclosed that he has been asked by one agent to go to the counter of Ram Gopal and agent has given the description of the CO which was matching with the Ram Gopal but he does not remember the name of the agent. It appears that merely on such suspicion HC Ram Gopal has been made an accused.
26. During his cross examination PW4 Inspector Jawahar (P14of 21) state vs Hardeep Singh etc., (P/15) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC Lal replied that Mr. Ram Gopal has not cleared the pax. He admitted that they received information daily regarding the sitting arrangement from the DCP FRRO in a sealed envelope and said envelope is being opened by ACP and accordingly, sitting arrangement is done on the spot as per the instructions of the DCP FRRO and prior to that it is not known to anybody that who will sit on which counter and which seat. Colour of the uniform of the immigration officials remains the same and approximately 14 clearing officers remains on duty at one time. He further replied that he did not record any conversation between the pax Hardip Singh and Ram Gopal and he did not have any proof of the same. He further stated that due to suspicion he had taken the documents from Ram Gopal and he can certainly say that Ram Gopal was going to clear the pax . He further stated that for clearing the pax there are three formalities i.e to enter the name into the computer, to sign on the passport and to put the stamp on the visa after checking the document and he does not know whether the aforesaid formalities have (P15of 21) state vs Hardeep Singh etc., (P/16) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC already been complied for clearing the pax by HC Ram Gopal or not .
27. Although PW4 is referring that accused Hardip Singh and HC Ram Gopal were talking but he could not explain as to what they were talking. It is an admitted fact that HC Ram Gopal was posted as CO and his duty was to clear the passengers for immigration clearance. Even if pax had approached him for getting immigration clearance the same could not be a ground to convict the accused in the background of the fact that accused HC Ram Gopal has not cleared the pax Hardip Singh and documents have already been taken from him.
28. Further, PW7 S.I Sanjay Singh has deposed on the basis of the disclosure statement made by the coaccused Hardip Singh which again in my considered opinion is not sufficient to convict the accused Ram Gopal and Rohit Michal for the alleged offence. Allegations against these accused person are that facilitated the (P16of 21) state vs Hardeep Singh etc., (P/17) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC boarding pass and Air Ticket to accused Hardip Singh but nothing has been brought in this regard . In these circumstances, benefit of doubt goes to the accused Rohit Michal and Ram Gopal .
29. Keeping in view the above observation, facts and circumstances of the case, I am left with no option but to hold that prosecution has failed miserably to prove its case against the accused person namely Rohit Michal and Ram Gopal beyond the shadow of doubt but have proved its case as against accused Mahinder Nath Mandal . Accordingly, accused Rohit Michal and Ram Gopal stands acquitted from the charges u/s 420/471/120 B IPC and accused Mahinder Nath Mandal stands convicted for the offence u/s 420/471/120 B IPC.
(RAJESH KUMAR GOEL) Addl Chief Metropolitan Magistrate-02/Dwarka courts ANNOUNCED IN THE OPEN COURT TODAY I.E 13.4.2011 (P17of 21) state vs Hardeep Singh etc., (P/18) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC (P18of 21) state vs Hardeep Singh etc., (P/19) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC IN THE COURT OF SH.RAJESH KUMAR GOEL, ACMM-02/Dwarka Courts FIR NO. 402/1999 U/s 420/471/120 B IPC P.S. IGI Airport state vs Rohit Michal etc. , 27.4.2011 ORDER ON THE POINT OF SENTENCE:
Present:- Ld APP for the state.
Convict Mohinder Nath Mandal present with Legal Aid counsel Sh Sunil Parashar.
Accused Ram Gopal and Rohit Michal already stands acquitted.
Accused Hardeep Singh already stands convicted.
Ld counsel for the convict Mohinder Nath Mandal submits that convict is facing trial of the case for the last near about 12 years and he is not a previous convict and he is the only bread earner of his family .
Ld. APP for state submit that severe view may be taken at the time of awarding the sentence to the convict as the offence of such type are increasing day by day in the society.
I have heard the ld APP for the state and the ld counsel for the convict .
Keeping in view the facts and circumstances of the case and the nature of the allegation against the convict Mahinder Nath Mandal , Convict Mahinder Nath Mandal is sentenced to undergo RI for one year alongwith fine of Rs 500/- in default 5 days SI for the offence u/s 420 r/w 120 B IPC and RI for six months alongwith fine of Rs 100/-
in default one days SI u/s 471 r/w 120 B IPC .
Fine not paid.
Both the sentences shall run concurrently. Convict shall be given benefit of section 428 CrPC , (P19of 21) state vs Hardeep Singh etc., (P/20) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC if any.
Copy of judgment and this order be given to the convict at free of cost today itself.
Thereafter, file be consigned to record room.
(Rajesh Kumar Goel) ACMM-02/Dwarka/ 27.4.2011 FIR NO. 402/1999 U/s 420/471/120 B IPC P.S. IGI Airport state vs Rohit Michal etc. , 27.4.2011 Present:- Ld APP for the state.
Convict Mahinder Nath Mandal present with Legal Aid counsel Sh Sunil Parashar.
An application for interim bail till filing of the appeal has been moved by the convict .
Heard on the application.
Acting u/s 389(3) CrPC , I order that the convict Mahinder Nath Mandal in the present case be released on furnishing personal bond with one surety in the like amount to the tune of Rs 10,000/- for a period of one month i.e upto 26.5.2011 . The convict shall present the order of Appellate court under sub section (1) 389(3) CrPC if any up to 26.5.2011 . Till then, the order of sentence announced by this court today shall remain suspended. In case the convict fails to appeal before the Appellate court, or files appeal he shall inform this court on or before 26.5.2011 .
(P20of 21) state vs Hardeep Singh etc., (P/21) FIR NO. 402/99 P.S. IGI AIRPORT U/S 420/471/120-B IPC ( Rajesh Kumar Goel) ACMM-02/Dwarka/27.4.2011 (P21of 21) state vs Hardeep Singh etc.,