Delhi District Court
State vs A-1) Rakesh Kumar on 19 September, 2013
IN THE COURT OF SH. ASHU GARG,
METROPOLITAN MAGISTRATE -06 (CENTRAL), DELHI
CC No. 418/2/11 [FIR No. 689/1998, P.S. Daryaganj]
Unique Case ID No. 02401R0199972009
Date of Institution: 18.03.2000
Date of reserving judgment: 06.09.2013
Date of pronouncement: 19.09.2013
In re:
State versus A-1) Rakesh Kumar
S/o. Lt. Sh. Dalel Singh
R/o. Vill. Bijwasan,
Bhirtala Panna, PS Kapashera,
Delhi
A-2) Laxmi Devi
W/o. Lt. Sh. Dalel Singh
R/o. Vill. Bijwasan,
Bhirtala Panna, PS Kapashera,
Delhi
JUDGMENT:
1.The present chargesheet was filed against the accused Rakesh Kumar alleging commission of offences under section 420/511 IPC and 471 IPC, with the allegations that he had attempted to cheat the officials of the police department by applying for a job of Constable on compassionate grounds on the basis of forged educational FIR No. 689/1998 Page 1 of 18 certificates. The accused Laxmi Devi is her mother who was kept in column no. 2 of the chargesheet as the person not sent for trial.
2.Briefly stated, case of the prosecution is that one application was received at the office of DCP (Central), Delhi signed by one Laxmi, requesting for job of Contable in Delhi Police for her son Rakesh Kumar on compassionate grounds consequent to death of her husband late Sh. Dalel Singh. Another application was received signed by one Rakesh Rana, son of the said Sh. Dalel Singh requesting for appointment on compassionate grounds. Along with the said application, necessary proforma was filled up, duly signed by the said Rakesh Kumar and photocopies of 10th certificate, school leaving certificate and 10th class marksheet were filed. When the application was processed and the documents were sent for verification to the Bihar School Examination Board, Patna from which the applicant Rakesh Kumar claimed to have passed his 10th class, it was reported by the concerned authorities that no such person with the said name and roll number had appeared or passed the said examination. It was thus found that the photocopies annexed with the application were forged documents. The applicants were informed of rejection of their application on this ground. At the same time, the matter was reported to the concerned police authorities for suitable action. Upon receipt of the complaint, present FIR was registered under section 468/471 IPC.
3.Initially, the accused Rakesh Kumar remained on the run but he surrendered in the court and was arrested on 20.04.1999. However, FIR No. 689/1998 Page 2 of 18 the forged certificate, the photocopies of which were filed with the application, could not be recovered. His mother Laxmi Devi was also arrested subsequently. The IO obtained specimen signatures and specimen handwriting of both the accused Rakesh Kumar and his mother Laxmi Devi and sent the same for forensic examination. Report from CFSL, Hydrabad was received wherein no opinion could be given qua the signatures of accused Laxmi Devi, but it was opined that the specimen signature of accused Rakesh Kumar matched with those of applicant on the application filed before the office of DCP. Accordingly, after completion of investigation, chargesheet was filed in the court only against accused Rakesh Kumar. Accused Laxmi Devi was kept in column no.2 of the charge sheet as a person not sent for trial.
4.Vide order dated 25.03.2000, the court observed that material was sufficient to proceed against both the accused persons and thus, both the accused persons were summoned to face trial. Vide order dated 17.11.2004, the court framed charge against both the accused persons for commission of the offence u/s 471 IPC. Both the accused persons pleaded not guilty and claimed trial.
5.At the trial, prosecution examined 12 witnesses in all in support of its case.
6.PW-1 ASI Ramanand was the duty officer who had registered the FIR Ex. PW-1/A. FIR No. 689/1998 Page 3 of 18
7.PW-2 B. C. Kalra was the then ACP Headquarter (P) who deposed about receipt of applications Ex. P-1 and Ex. P-2 alongwith proforma Ex. P-3 duly annexed with enclosures mark-X, mark-Y and mark-Z. He further deposed about the documents being sent for verification to the Secretary, Bihar School Examination Board, Patna who gave response vide letter dated 30.07.98 that the documents were forged. He then brought the matter to the notice of the senior officials and gave complaint Ex. PW-2/A.
8.PW-3 Ct. Mahipal joined the investigation and witnessed arrest of accused persons. The specimen signature of accused Laxmi Devi Ex. PW-3/A, Ex. PW-3/B and Ex. PW-3/C and that of accused Rakesh Kumar Ex. PW-3/D, Ex. PW-3/E and Ex. PW-3/F were taken in his presence.
9.PW-4 HC Parminder Singh joined the investigation and witnessed the arrest of the accused Rakesh Kumar, conducting his personal search and recording of his disclosure statement.
10.PW-5 HC Pratap Singh had handed over the file Ex. PW-5/A with respect to compassionate appointment of accused Rakesh Kumar to the IO.
FIR No. 689/1998 Page 4 of 1811.PW-6 HC Anand Parkash handed over several documents to the IO including original applications and letter of Bihar Examination Board vide memo Ex. PW-6/A.
12.PW-7 Ct. Kulvir Singh had submitted the documents at CFSL Hyderabad.
13.PW-8 Jagdish Singh was the then Joint Secretary, Bihar School Examination Board who had verified the copies of certificates sent to him. On verification, he found that the documents was not genuine and the named candidate did not appear in the said examination. He proved his report Ex. PW-8/A.
14.PW-9 Insp. Virender Singh made endorsement on the complaint received from the DCP Office and got the FIR registered. He tried to apprehend the accused Rakesh Kumar but he remained untraceable.
15.PW-10 Insp. Dharampal Dahiya was the IO who obtained specimen signature and specimen handwriting of the accused persons and obtained original documents from the office. He subsequently obtained the opinion of CFSL Hyderabad and filed the chargesheet in the court.
16.PW-11 SI Avinash had carried out part investigation. He arrested the accused Rakesh and recorded his disclosure statement. He also FIR No. 689/1998 Page 5 of 18 obtained specimen handwriting of the accused Ex. PW-11/B-1 tp Ex. PW-11/B-8.
17.PW-12 Sh. D. D. Goyal was the then Government Examiner, Questioned Documents, CFSL Hyderabad who had examined the specimen signatures obtained by the IO and compared the same with questioned signature/handwriting on the applications in question. He proved his report Ex. PW-12/A.
18.Statements of the accused persons under section 313 CrPC were recorded on 14.02.2013 and additional statement was recorded on 01.07.2013. Both the accused persons denied their involvement and claimed that they never applied for any such job. They denied writing or signing any such application. They chose to lead evidence in defence.
19.Both the accused persons examined themselves as DW-1 and DW-2 respectively as defence witnesses.
20.DW-1 Rakesh Kumar stated that he was only 8th class pass and his left eye had lost its sight in an accident. He affirmed that he did not write or sign any application for a job with the police.
21.DW-2 Laxmi Devi also confirmed that her son Rakesh had studied up to 7th or 8th class and lost the sight of left eye in an accident. She FIR No. 689/1998 Page 6 of 18 also stated that no application was filed or signed by her for compassionate appointment.
22.It is in these circumstances that the Ld. APP for State has argued that prosecution has been able to establish its case beyond reasonable doubt as all the witnesses have supported its case and no material contradiction can be seen in their testimony. Ld. APP for State has primarily relied the upon the opinion of the handwriting expert and has argued that the same is sufficient to establish the direct involvement of the accused Rakesh Kumar.
23.On the other hand, Ld. Defence Counsel has argued that no case is made out against the accused persons. It is contended that there are inherent defects and infirmities in the prosecution case. It is argued that there is no material to show that it was the accused persons who had filed or signed the applications in question. It is then argued that the original documents which are claimed to be forged, have never been brought on record and the court cannot rely on mere photocopies of the documents. It is also argued that the report of handwriting expert cannot be relied upon as the specimen signature and handwriting of the accused persons were not obtained before the court. Some other contradictions and variations appearing in the evidence of the witnesses have been pointed and it is argued that the accused persons are entitled to be acquitted.
FIR No. 689/1998 Page 7 of 1824.I have heard the arguments advanced by both the sides and have carefully perused the material available on record. Ld. Defence Counsel chose not to file any written submissions or case-law, despite himself making repeated requests in this regard.
25.In a criminal trial, it is the prosecution that is required to prove its case against an accused beyond reasonable doubt. The burden has to be necessarily discharged by the prosecution and this burden never shifts upon the accused. To bring home the guilt of an accused, the prosecution is required to establish, firstly, that the facts point towards commission of an offence, and secondly, that it was the accused who who had committed the said offence.
26.As far as the first ingredient is concerned, the prosecution has relied upon the evidence of PW-2 and PW-8. PW-2 was the then ACP who deposed about the receipt of applications in question in the office for appointment on compassionate grounds by the applicants Rakesh Kumar and his mother Laxmi Devi, along with annexures of photocopies of educational qualification. The documents annexed to the applications were sent to the Bihar School Examination Board, Patna. The same were examined and PW-8 who was the then Joint Secretary, Bihar School Examination Board, gave report Ex. PW-8/A and verified that the said photocopies were forged documents and no person with the name of Rakesh Kumar ever appeared or passed from the relevant examination.
FIR No. 689/1998 Page 8 of 1827.Ld. Defence Counsel has strongly contended that the court cannot rely upon mere photocopies of the documents to conclude that they were forged. It is submitted that the actual forged certificates, photocopy of which were allegedly annexed with the applications, have never been recovered from the possession or at the instance of the accused persons. It is submitted that the photocopy of a document is neither a primary evidence nor a secondary evidence and thus cannot be relied upon in any manner.
28.However, I have been able to lay my hands on precedent tiled as Nakul Kohli v. State [173 (2010) DLT 197] wherein it has been observed by the Hon'ble High Court of Delhi that the offence of forgery includes forgery in the form of photocopy / color copy of documents. Relevant extract of the precedent is as under:
"In my view, photocopying a document, which is not genuine and with the kind of technology which is available now, wherein exact similar copies of the original can be made, would fall within the ambit of making a false document. With the advent of technology, scanners and computerised colour photocopiers produce identical copies which are exactly similar to the original. Excluding photocopying / printing from the ambit of a "false document" would be giving too narrow a reading to the word 'makes' as used in section 464..."FIR No. 689/1998 Page 9 of 18
It was observed thus:
"The contention of the learned Counsel that he should be discharged at this stage for offences under section 471 and 474 IPC, as the document is a photocopy and thus a secondary evidence, is also untenable, because in a given case where a photocopy is used as the primary offending article, the same would be the primary evidence for the purpose of trial of the said case."
29.In view of the law laid down in the above precedent, it cannot be said that a false photocopy of a document would not be covered in the definition of a false / forged document. The offender cannot escape from his liability by creating a forged / false / fake document and using its photocopy or otherwise creating/preparing a false photocopy from an original document and using it as genuine. Irrespective of recovery of actual forged document or the original document, photocopy of the said document cannot be excluded from consideration, particularly when it is this false photocopy which has been "used" for cheating. The questioned document is thus the forged photocopy itself. From this angle, it cannot be said that the forged photocopy would be no evidence. Rather this photocopy used as genuine is a primary evidence in itself.
30.The court has no reason to disbelieve PW-8 who checked the records and found that no such person with the name of Rakesh FIR No. 689/1998 Page 10 of 18 Kumar had appeared or passed the examination from their Board. Merely because PW-8 did not bring the record as to who had appeared at Roll No. 8207, that would not make any difference. The points raised by Ld. Defence Counsel, that is, there are over writings on document Ex. PW-3/A and mark-X, the date on document mark-X1 is not legible and there is fluid mark on letter sent by PW-8, would not be sufficient to falsify the evidence of PW-8. There is nothing on record to show that the said PW-8 had given a false report. Further, it is not even the defence of the accused that the accused had actually appeared and passed in the said examination or that the documents annexed with the applications were correct and genuine. The accused never summoned the record of Bihar School Examination Board, Patna to establish that he had appeared or passed the examination as Roll No. 8207. Rather the defence of the accused has been that he never appeared in the said examination and never passed the same. In such a position, there is no doubt that the photocopies annexed with the applications for the job on compassionate grounds, are forged documents.
31.Once it is established that the said photocopies are forged copies / documents, the mere fact that they had been annexed with the application to get a job on compassionate grounds, would be sufficient to hold that the documents were "used as genuine" by the applicant. The offence would be thus covered under section 471 IPC as the applicant had used forged documents.
FIR No. 689/1998 Page 11 of 1832.Coming to the second ingredient, the burden is now upon the prosecution to establish the identity of the accused persons to be those who had filed the applications in question. In this regard, the prosecution has relied upon the evidence of PW-2 coupled with the report of handwriting expert PW-12 that was given on the basis of specimen signatures obtained by PW-3, PW-10 and PW-11.
33.A perusal of testimony of PW-2 would show that he himself never received the applications in question and had deposed merely on the basis of the available official record. Neither he had seen nor he had identified the accused persons to be those who had signed the applications. He never saw the accused persons writing, signing or submitting the applications in question. As such, PW-2 was not competent to identify the accused persons to be signatories of the applications in question.
34.Merely because the applications received in the office mentioned the names and addresses of the accused persons, that would not directly implicate the accused persons, as anyone else can write the name of accused persons, sign it and file the same, though the finger of suspicion points towards the accused persons only who were the only direct beneficiaries of the offence. Still, the prosecution has to rule out the possibility of anyone else signing or submitting the applications in the office, by leading positive evidence.
FIR No. 689/1998 Page 12 of 1835.There is no other eye witness examined don record who could depose that it was the accused persons who had signed the applications in question or had filed the same in the office. The prosecution case is now entirely based on the report of handwriting expert PW-12 to establish the identity of the accused persons.
36.It is pertinent to notice that even as per this report, opinion could not be been given qua the signature of accused Laxmi Devi. It could not be established that the signatures of 'Laxmi' appearing on the application Ex. P-1 filed in the office of the DCP belong to accused Laxmi Devi. As such, it cannot be said that the accused Laxmi Devi had used any forged document as genuine.
37.It is only the accused Rakesh Kumar whose signatures tallied with that on application Ex. P-2. As per the report of handwriting expert, the person whose specimen signatures/ writings were given, also wrote the questioned signatures/handwriting.
38.At this stage, it is necessary to discuss the admissibility of such evidence which is based on the specimen signatures and specimen handwritings obtained from the accused while in police custody. PW-3, PW-10 and PW-11 all have deposed about the specimen signatures / handwritings of the accused persons having been obtained at the police station. The question is whether the police officials were within the four corners of the law when they obtained the specimen signatures / handwritings of the accused persons in this manner.
FIR No. 689/1998 Page 13 of 1839.The issue was dealt with by the Hon'ble Supreme Court of India in various precedents. In precedent titled as State of Bombay v. Kathi Kalu Oghad [(1961) 2 CrLJ 856], the Hon'ble Supreme Court held that such obtaining of specimen handwritings would not be violation of Article 20 (3) of the Constitution of India. The law developed and the import of law laid down by the Hon'ble Supreme Court was clarified by the full bench of the Hon'ble High Court of Delhi in judgment titled as Sapan Haldar v. State [Crl. A. no. 804/2001 dated 25.05.2012]. It was observed as under:
"With respect to specimen handwritings obtained from an accused by the investigating officer, in the decisions reported as (1994) 5 SCC 152 Sukhwinder Singh & Ors. vs. State of Punjab and AIR 2003 SC 4377 State of Haryana vs. Jagbir Singh & Anr., the Supreme Court categorically held that said evidence was totally inadmissible in evidence."
It was further observed as:
"Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different vis-à-vis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct. The FIR No. 689/1998 Page 14 of 18 Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions."
The reference was answered thus, "i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No.25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison."
FIR No. 689/1998 Page 15 of 1840.It has thus been clearly laid down that the police officials have no power to obtain the specimen signatures and specimen handwritings of the accused in their custody at the stage of investigation. Section 4 and 5 of Identification of Prisoners Act would apply only to obtaining of finger prints or foot prints but same would not apply the specimen handwriting and signatures. Though such position is now being take care of by amendment in the CrPC wherein Section 311-A has been inserted, yet the same would not be retrospective in operation. Prior to the said amendment, the police officials had no power to obtain the specimen handwriting / signatures from the accused persons while in their custody. Any such material collected has to be excluded from consideration being inadmissible in evidence.
41.Applying the said law to the matter in hand, it can be said that when specimen signatures of the accused persons were obtained by PW-10 and PW-11 in the presence of PW-3, at the police station, the said procedure was not as per law. Once this part of evidence is excluded from the area of consideration, nothing further survives in the prosecution case. As a corollary, it has to be held that the report of PW-12 cannot be relied upon by the court as the same was based on inadmissible evidence of specimen signatures/handwritings obtained without jurisdiction.
42.Thus, handwriting of the person in such cases cannot be proved by handwriting expert and has to be proved only in the manner prescribed in the Evidence Act. In the present case, the IO has not placed on FIR No. 689/1998 Page 16 of 18 record any document on the basis of which the admitted signature of the accused may be compared with that on the applications in question. The IO did not obtain any document from the possession or at the instance of the accused bearing his signatures that might be available to the court to ascertain that it was the accused who had signed the applications in question. Similarly, no witness acquitted with the signature / handwriting of the accused or who had seen the accused signing or writing has been examined on record who might identify his signatures or hand writing on the applications in question so as to establish his identity. Thus, with the exclusion of the evidence of PW-12 is excluded, it can be said that there is no other evidence on record to establish the identity of the accused Rakesh Kumar to be the signatory or author of the application Ex. P-2.
43.The court does not find it necessary to go into other points raised by the Ld. Defence Counsel, that is, duty roster of PW-3 has not been produced; there is a space between the contents and signature of the IO on documents Ex. PW-4/A and Ex. PW-4/B; Page no. 1, 2 and 3 of Ex. PW-5/A are of different types, receipt of FSL report is not on record; delivery report of letter dispatched from Bihar has not been proved; there appears a suspicious blue color dot on Ex. PW-4/B; duty roster of PW-12 has not been placed on record; and PW-12 could not tell the date when the report on record was signed.
44.In view of the above discussion, it can be said that the material on record is not sufficient to establish the identity of the accused persons FIR No. 689/1998 Page 17 of 18 to be the signatories / writers of the applications in question or to be the persons who had filed them in the office. In view of the legal impediment in considering the report of handwriting expert, nothing further survives in the prosecution case. It is not established beyond reasonable doubt that the signatures on the applications in question belong to the accused persons. As such, it cannot be said that the accused persons had used as genuine a forged document.
45.In a criminal case, the burden is upon the prosecution to prove its case against the accused beyond reasonable doubt. For that, cogent and reliable evidence is to be led. Mere suspicion, howsoever strong it might be, cannot replace the standard of proof required to establish guilt of an accused.
46.Accordingly, both the accused persons are given benefit of doubt and are acquitted of the charges. However, their bail bonds shall remain in force for the next six months in terms of Section 437-A CrPC.
47.File be consigned to the record room.
Announced in the open court this 19th day of September 2013 ASHU GARG MM-06 (Central), Delhi FIR No. 689/1998 Page 18 of 18