Delhi District Court
State Through Cbi vs . P.C. Tomar on 5 August, 2013
39/39
IN THE COURT OF SH. LOKESH KUMAR SHARMA, CHIEF
METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT, NEW DELHI
State through CBI Vs. P.C. Tomar
RC No. 2(A)/94 & CC No. 11/06
Unique ID No. 02403R0008961996
Date of institution of case: 09.05.1996
Date of reserving the judgment: 31.07.2013
Date of pronouncement of judgment: 05.08.2013
J U D G M E N T
1. S. No. of the Case : 11/06/11
2. Date of Commission of Offence : Somewhere between year 1961 to Dec. 1966
4. Name of the complainant : Source
5. Name,parentage & address of accused: P.C. Tomar S/o late Sh. Tota Ram,
R/o B203, Maurya Apartment,
I.P. Extension, Patparganj, Delhi.
6. Offence complained or proved : 420/468/471 IPC
7. Plea of Accused : "Not guilty"
8. Final Order : Acquitted
9. Date of Final Order : 05.08.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. In the present case, accused was charge sheeted for the offences under section 420/468/471 IPC on the allegations that he was a Dhimar by caste and was a permanent resident of State of U.P. till 1961 and was thus not entitled for issuance of SC Certificate CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 showing him to be belonging to Caste Mallah by the State of Delhi as he was not a permanent resident of Delhi on 20.09.1951. However, the accused, who had obtained the post of Overseer (Gardens), at MCD and was also later on promoted to the post of Director, Horticulture Department, against SC quota on the basis of two scheduled caste certificates dated 11.07.1961 issued from the office of Harijan Wefare Officer, Delhi Administration as well as another certificate dated 28.12.1966 issued from the office of Deputy Commissioner, Delhi which were issued at his addresses of H. No. 418, Panchkuiyan Road, New Delhi and B150, Netaji Nagar, Delhi respectively. However, it is pertinent to point out here itself, that the certificate dated 11.07.1961 was no where used by the accused for any purpose whatsoever as mentioned by the CBI in its charge sheet filed against him in the present case.
2. On a complaint made by one Sh. Yaad Ram, investigation was also carried out in this regard and it was found that the aforesaid certificates were obtained by the accused fraudulently by preparing forged documents which were used by him as genuine one and therefore he was booked for the aforesaid offences.
3. After completion of investigation, charge sheet was filed by the CBI in the present case and cognizance of the offences was also taken against the accused by the learned predecessor of this court and the accused was summoned to face trial. The accused had also duly appeared before the court to contest the case on its merits and was supplied the CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 copies of the chargesheet and other documents accompanying it.
4. On 06.07.2001 charges for offences under sections 420/468/471 IPC were framed against the accused to which he had pleaded not guilty and had claimed trial.
5. In order to prove its case against accused beyond any reasonable doubt, 21 witnesses were examined by the prosecution.
6. PW1 was Sh. Ram Chander S/o Sh. Pitamber Lal who was a resident of A27, Guru Ram Das Nagar, Laxmi Nagar, Delhi92 and was also the brother in law (Jeeja) of the present accused. In his deposition before the court, he was stated to have joined Ministry of Home as LDC in the year 1952 and had retired in the year 1985 as Section Officer from CBI. He was stated to have born on 08.08.1927 at New Delhi where his father was residing in a Government Accommodation bearing at H. No. 402, Panchkuiyan Road, New Delhi where he had also stayed till 1956. PW1 was stated to be belonging to Mallah caste and in the year 1954 he got married to Kusum Lata D/o late Sh. Tota Ram who was also of the same caste and was also the sister of present accused. Father of the accused was stated to be working as Naib Tehsildar in U.P. and after the retirement he had settled in Etah District of State of U.P. Certificate issued to accused was stated to have been issued by PW1 at the request of accused which was placed on record as Ex. PW1/A. Prior to joining of his job with the Government of U.P., Tota Ram, CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 the father of accused was also stated to be living with PW1 at Delhi as he used to work in a Stone Cutting Machine and it was only after his getting the government job that he had left the place of PW1. PW1 had also placed on record his statement recorded by CBI as Ex. PW1/B. During his cross examination by the learned APP after declaring him hostile, he had denied the suggestion put to him that he had told the investigating agency in his statement that Sh. Tota Ram had never resided at H. No. 402, Panchkuiyan Road, New Delhi before or after his marriage with the later's daughter. He had also denied the suggestion that accused had come to Delhi only after his marriage in the year 1954. However, it was admitted by him to be correct that Sh. Tota Ram had joined his job about 510 years prior to the year 1950 and when he was specifically asked that once the said Tota Ram had already got a job about 510 years before 1950 then there was no possibility of his residing at Delhi in the year 1950, then PW1 had refused/declined to make any comment about the same. It was further admitted by him that his wife was not known to him prior to his marriage as they had never met or had resided together before their marriage. He had further denied the suggestion that he was trying to help the accused or his wife by deposing falsely and in favour of the accused and had stated further that he was not even on visiting terms with the accused and it was also admitted by him that after the year 1940 to 1945 neither the accused nor his father had ever resided with him in Quarter No. 402, Panchkuiyan Road, New Delhi. However, they were on visiting terms with them. It is also pertinent to mention here itself that no SC CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 certificate of accused was ever issued at the address of H. No. 402, Panchkuiyan Road, New Delhi.
The said witness was not cross examined by the accused despite availing an opportunity in this regard.
7. PW2 was one Sh. Devi Prasad Diwedi who was stated to working as Director, DDA, Vikas Sadan and had stated that during the year 198687 he was posted as Officer Incharge in CCS/II/Executive Magistrate in the office of Deputy Commissioner of Delhi and was responsible for issuance of SC/ST Certificates and also for verification of such certificates issued earlier from their office. For the purpose of issuance of any such certificate, the main requirement was that the applicant should have been a resident of Delhi since the year 1951 and should have belonged to a Scheduled Caste. File No. F14 (302)/CCS/2/DC Ex. PW2/A was stated to have opened on the reference dated 17.09.1986 received from the Director (Personnel), MCD which was marked to PW2 by Smt. Neeru Singh, the then ADM (CCS) who was Incharge of North East District and letter dated 17.09.1986 has been placed on record by him as Ex. PW2/A1, another letter dated 29.10.1986 has been placed on record as Ex. PW2/A2. However, file was thereafter, called by ADM CCS on 03.11.1986 vide letter of the even date placed on record as Ex. PW2/A3 and again the same was marked to PW2 vide note sheet Ex. PW2/A4 bearing the signature of the P.A. of ADM, and it was mentioned by him in a note dated 05.11.1986 placed on record as Ex. PW2/A5 that file was required to be CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 placed before ADM CCS on 11.11.1986. The present accused was thereafter asked to submit the documents in support of his claim by 17.11.1986 and the communication in this regard has been placed on record as Ex. PW2/A5 which was marked directly to Head Clerk who had submitted the file with ADM concerned on 17.11.1986 when it was stated that accused had already submitted his entire documents related to his stay at Delhi at the relevant period of time. The noting made by one Sh. Bhagwan Singh Talwar, Head Clerk in this regard was stated to be appearing at point C and the note of ADM after conducting inquiry was appearing at PointD on Ex. PW2/A5 and thereafter necessary communication was dispatched by PW2 to the concerned person informing him about the fate of inquiry. However, again some complaint was made to Deputy Commissioner who had remanded back the said file to ADM for conducting detailed inquiry and the order of Deputy Commissioner was placed on record as Ex. PW2/A6 bearing the signatures of late G.S. Chima, the then Deputy Commissioner at point A. Thereafter, a detailed order was passed by Smt. Neeru Singh, the then ADM which was placed on record as Ex. PW2/A7 to A9 and the communication dated 30.03.1987 as Ex. PW2/A10 and communication dated 01.05.1987 was Ex. PW2/A11.
During his cross examination by learned defence counsel Sh. S.P. Ahluwalia, he had deposed after having seen the letter Ex. PW2/A11 that this letter was sent by him to Sh. Yaad Ram Singh who was the complainant against the present accused, mentioning therein about the genuineness of the SC certificate issued to the accused being belonging to the Mallah caste and further that his sister was residing in Delhi prior to 20.09.1951 CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 and this report was prepared by the then ADM Ms. Neeru Singh. However, he could not cite the reasons or the basis for the ADM either to have arrived at or to hold such an opinion and view after conclusion of her inquiry. Further, it was stated by him that his office had categorically held that the certificate issued to the accused was valid and genuine as he had been able to prove that actually he belonged to Mallah Community and was residing in Delhi even prior to 1951.
8. PW3 was one Sh. P.L. Yadav, working as Assistant Director with the Ministry of Social Justice and Empowerment, Shastri Bhawan, New Delhi and he was stated to be posted in the said Ministry since 1985 and it was during the period 19921998 that he got an opportunity to deal with the subjects of "SCs/STs". He had also placed on record a compilation of book regarding rules regulating the SC/ST and had placed the same on record as Ex. PW3/A and had further stated that CBI had never obtained any lengthy statements of this witness at any point of time whatsoever. According to the circular dated 02.05.1975, the claimant was required to be belonging to the claimed community which should have been further notified as SC either in relation to a State or a Union Territory (UT) from where the claimant wanted to get the certificate issued and as per circular dated 22.03.1977 either the parents or even the accused should have been a permanent resident of the State on the date of notification of SC list. It was stated further that a list of SCs of State of U.P. was notified on 10.08.1950 and the list of SCs of Delhi was notified on 20.09.1951 as per which the Mallah community was though CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 mentioned as SC in the list adopted by Government of Delhi whereas no such recognition was recorded in the notification of Government of State of U.P. During his cross examination by learned defence counsel Sh. S.P. Ahluwalia, it was categorically admitted by him that it was correct to say that a circular dated 22.03.1977 was passed by the Ministry of Home Affairs wherein the terms "Ordinary Resident" was defined in contrast to the term "Permanent Resident". However, the witness could not either admit or deny the fact that any notification issued by Ministry of Home Affairs could only have a prospective effect and not a retrospective effect. The witness himself had never gone through Manak Hindi KoshPartIII Ex. PW3/DA where community Dhimar was cited and defined as a scheduled caste. Similarly, he could not admit or deny a document produced before him during his cross examination which was marked as PW3/DA wherein also the Dhimar community had been defined at point A nor he had gone through the Brihat Hindi Kosh PartIII Ex. PW3/DB. Hence, he could not say with confidence as to whether Dhimars were also included in Mallah caste or not. Same was his answer about Ex. PW3/DC Hindi Shabd Sagar PartVIII. He had also never gone through Ex. PW3/DD which was a copy of Census of India, VolumeI in the year 1961. Same was his answer to another communication notification dated 22.03.1977. Witness was stated to have gone through the Constitution of India and had also admitted the correctness of Constitution (SC) (UT) order 1951 C.D. 32. Be that as it may, the deposition of all these witnesses has not supported the case of the prosecution rather their depositions have tilted the present case in favour of the present CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 accused alone.
9. PW4 was one Sh. Anil Sharma, Inspector, Anti Corruption Branch who had seized certain documents vide seizure memo Ex. PW4/A from the office of CCS II Branch. Another seizure which was made by him on 18.10.1995 was also placed by him on record as Ex. PW4/A2.
During his cross examination by the accused, he had stated that whatever grounds were there for cancellation of SC certificate, same must have been mentioned in order Ex. PW4/A2 itself.
10. PW5 Sh. Hari Shankar Gupta who was working as Clerk in Maharani Laxmi Bai Kanya Inter College, GT Road, had deposed that during the year 1994 he was posted as Suit Clerk in Municipal Board, Etah (UP). He had deposed that on the direction of CBI, he had handed over documents vide seizure memo Ex. PW5/A to PW5/C. He had also placed on record, the Assessment Register of House Tax, Municipal Board, Etah for the period 1.10.1970 to 31.3.1981 as Ex. PW5/D, which was maintained by him and used to remain in his possession during the course of his official work during the said time. He had also placed on record the assessment register of house tax, Municipal Board, Etah for the period 1.4.1981 to 31.3.1992 containing page 1 to 101 as Ex. PW5/E. He had also placed on record the House Tax file of property No. 109/110, Rewari Mohalla in the name of Anand Lata as Ex. PW5/F, the House Tax file of property No. 152, Rewari CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 Mohalla in the name of Smt. Laxmi Devi as Ex. PW5/G and the House Tax file of property No. 112, Rewari Mohalla in the name of Smt. Ramkali as Ex. PW5/H. He had also deposed that the papers of three seized files which were Ex. PW5/F1 to PW5/F3 in file Ex. PW5/F, Ex. PW5/G1 in file Ex. PW5/G and Ex. PW5/H1 to H3 in file Ex. PW5/H all were bearing his signatures. He had also placed on record the extracts of House Tax register of property No. 110, 152 and 112, Rewari Mohalla vide Ex. PW5/J, PW5/K and PW5/L, respectively. Hence, from his aforesaid testimony, it has become an established fact on record that late father or mother of present accused were not having any property in their own/individual name and only his married sister Anand Lata was having the property in her own name in the said locality.
During his crossexamination by Sh. S. P. Ahluwalia, learned defence counsel, he had stated that he could not remember as to when he was posted in the Tax Department of Municipal Board, Etah. He had admitted that there was no entry in his handwriting in the register Ex. PW5/D. He had also admitted that this register was never maintained by him nor any entry was ever made in his presence. He had specifically stated that in fact he had never remained connected with the said register. He had also admitted that he had never dealt with register Ex. PW5/D nor he had any knowledge about its entries. He had also admitted that he was only a witness of production of registers and the documents mentioned in the seizure memos. He had also admitted that he had never remained connected/scribed/maintained Ex. PW5/F, Ex. PW5/H and all other files referred by him in his testimony. He had specifically stated that he had no knowledge about any of CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 these files as he was only a witness of production of files. Hence, none of those documents stood proved on record as per the legal requirements in that regard.
11. PW6 was one Sh. Vinod Kumar working as Administrative Officer, Lok Nayak Bhawan, Delhi and had deposed that he was posted as Superintendent (CCS), Superintendent (Judicial) and Superintendent (Marriages) in the office of Deputy Commissioner, Delhi from the year 1992 till January, 1996. He had deposed that he had handed over certain documents to the IO vide memo Ex. PW6/A and B respectively. He had placed on record the SC/ST Certificate Issue Register for the period 14.06.1966 to 18.08.1966 bearing serial no. 886 to 1196 of CCS branch as Ex. PW6/C. He had further deposed that he had handed over the file bearing no. F14 (302)/CCSII/DC bearing the pages on correspondence side 1 to 31C and on the noting side bearing pages no. 1 to 11N to the IO vide memo Ex. PW2/A. He had also stated that a bunch of circulars (11 in total) Ex. PW6/D1 to Ex. PW6/D11 pertaining to his office were also handed over by him to the IO. He had deposed that Certificate no.2033/Caste/MISC/66 (M) dated 28.12.1966 was issued to one Sh. Prem Chand Tomar on the said date but he could not identify the signatures of the Issuing Authority appearing thereon.
In his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he had stated that he was transferred to the office of DC in the year 1992 and the concerned file was taken in custody by the CBI for the purpose of seizure of the same. After going through Ex. PW2/A, he had answered to the question put to him that he had no CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 knowledge as to whether any enquiry was ever instituted on the complaint of Yaad Ram Singh or not. He had stated that he had never worked with Ms. Neeru Singh, the then ADM North & East. He had stated further that it was a matter of record as to whether Ms. Neeru Singh, the then ADM North & East had conducted any enquiry on the complaint of Yaad Ram Singh, Assistant Director, Horticulture and had held that the complaint against P.C. Tomar was found baseless and certificate issued to him regarding his status of SC was found to be valid or not.
12. PW7 was one Sh. Naresh Chand Bansal, Retired Principal, who had deposed that he had joined Dharam Samaj Inter college, Aligarh, U.P. on 01.08.1966 as lecturer and had become principal on 01.07.1991 and had worked as Principal till 30.06.2002. He had placed on record the Scholarship Register Ex. PW7/A of his school containing entries from serial no. 9001 to 9100 and had also identified the signatures of the then Principal Sh. Har Prasad on all the pages, except at serial no. 9085. Although he had never worked with Sh. Har Prasad but he had identified his signature because it formed the part of his school record. Sh. Har Prasad had died subsequently. He had further proved entry No. 9076 vide Ex. PW7/A1 in the register Ex. PW7/A which was in respect of one student Prem Chand Tomar S/o Sh. Tota Ram who had studied in the said school during the year 19521953 & 195354 as per records. He had also placed on record the Attendance Register of Class VI pertaining to the year 195253 as Ex. PW7/B and attendance register of Class VII pertaining to the year 195354 as Ex. PW7/C. He had further CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 deposed that against serial no.9076, entry of Prem Chand Tomar was mentioned in both the said registers. He had further deposed that as per records, the said student had paid full tuition fee for the relevant period. He had further deposed that as per record, SC students were exempted from the payment of Tuition Fee. Scholar Register and Attendance Register were stated to be handed over to the CBI vide memos Ex.PW7/D1 & D2 bearing signatures of one S.C. Aggarwal who had worked as Head Clerk with this witness.
In his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he was shown form no. 9005 Ex. PW7/DA to which he had stated that the same had not been signed by late Sh. Har Prasad, however the same had been signed by some other person, whose signature he could not identify. He was also shown Form No. 9007 Ex. PW7/DB, Form NO. 9010 Ex. PW7/DC and 9011, 9013, 9014, 9019, 9022 to which he had stated that the same were not signed by anybody. On seeing form no. 9025 Ex. PW7/DD he had stated that the same was also not signed by late Sh. Har Prasad but was signed by some other person whose signature he could not identify. After seeing form nos. 9031, 9033, 9038, 9043, 9047, 9052, 9055, 9066, 9067, 9071, 9072, 9073, 9081, he had stated that the same were also blank and were not signed by Har Prasad. He had stated further that Form Nos. 9040 Ex. PW7/DE & DF were also not signed by late Sh. Har Prasad. He had admitted that late Sh. Har Prasad had never signed any paper in his presence, however, he had identified his signatures as per records. He had stated further that he had never told CBI that he had ever seen Har Prasad signing or that he could have CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 identified his signatures. He had admitted that there was no column in Ex. PW7/A & B which might have fixed the identity of the students like parentage, village etc. and further it was admitted by him that it was also correct that name, parentage or village of students might have been the same though such particulars would have pertained to different students of same name. He had also admitted that the record exhibited during his examination in chief had not depicted any identification mark or photo of the students. He had also failed to identify any of the students named in the abovesaid records. He had further stated that it was not mandatory that SC students were to be essentially given fee concession. He had admitted that if someone belonging to SC category, had failed to produce the SC certificate, then he was not given fee concession. He had further admitted that if some student belonging to SC category was not interested in availing the facility, then also he could have done so.
13. PW8 was one Sh. Vinod Chander Tomar, S/o late Sh. Tota Ram, R/o H No.37/A, Shakarpur, Delhi, who had deposed that accused P.C. Tomar was his younger brother. Accused had retired from MCD as Director Horticulture. He had further deposed that he had worked as Assistant in the Ministry of Civil Aviation and had retired from the service in the year 1993. He was born in the year 1935 at Delhi. Though he could not tell the exact place where his parents were residing, however, they were stated to be residing in Delhi. His birth was not registered as at that time there was not much population in Delhi. He had further deposed that his father had worked on Stone Cutting Machine and CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 thereafter he had shifted to U.P. His father had retired as Naib Tehsildar from Mainpuri District. However, he could not remember the date of his retirement. He had also deposed that he had three sisters namely Aanand Lata, Kusum Lata and Pushp Lata and all were married. Pushp Lata and Kusum Lata were married in Delhi and third one was married in Etah, U.P. as her husband was a businessman at Etah. He had deposed that the name of his grandfather was late Sh. Shyam Lal who had retired as Hindi Teacher at Etah. He had further deposed that his father had not constructed any house. His mother's name was Smt. Kalawati. He had further deposed that accused was also born in Delhi but he did not know about the exact place of his birth. He had deposed that Pramod Kumar was the son of his brother in law (Jeeja) late Sh. Ram Swaroop who was working in Allahabad Bank at Etah. He had further deposed that their caste was Mallah which had fallen within the category of scheduled caste in U.P. and Tomar was their Gotra. He had further deposed that he had claimed himself as Scheduled Caste at the time of his education as well as employment. He had also claimed himself as SC Category in Delhi University for the first time.
During his cross examination by the learned APP after declaring him hostile, he had stated that CBI had raided his house at H. No. D 258, Pandav Nagar, Ganesh Nagar Complex, Delhi92, however, he could not remember the exact date as many years had elapsed. He had no knowledge as to whether CBI had raided at the U.P. house or not. He had stated that he had no knowledge about whereabouts of the accused P.C. Tomar at that particular point of time. He had denied the suggestion that he was residing with his CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 father and other family members at Mainpuri since 1935 till 1954 after the retirement of his father. He had further denied the suggestion that accused P.C. Tomar had studied at Aligarh. The date of birth of accused P.C. Tomar was in the year 1943 however, he could not remember the exact date and month. He had further denied the suggestion that he had not claimed himself as scheduled caste during his education and service. He had further denied the suggestion that accused was also born in Aligarh. He had no knowledge as to whether any of his relatives had also claimed the benefit of Scheduled Caste at any point of time in their life or not. He had denied the suggestion that he had deposed falsely. Mallah community used Tomar as Gotra. He had also denied the suggestion that Mallah's had never used Tomar as their Gotra and had stated further that Mallahs were also known as Dhimar.
In his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he had stated that PW1 Sh. Ram Chander was his brother in law and had further admitted that Sh. Ram Chander had been residing at House no. 402, Panchkuyian Road in 40's and 50's till his retirement. He had further stated that quarter No. 418 was also the place of his residence in between. He had admitted that his brother P.C. Tomar had also born at Delhi. He had stated that his family comprising of his father, brother i.e. accused P.C. Tomar and mother etc. were residing with Mr. Ram Chander (PW1) in 40's and 50's. He had also admitted that his father was working as Stone Cutter in Delhi in 40's and early 50's i.e. before his employment in U.P. He had further admitted that after getting employment in U.P., only his father had shifted to U.P. and he alongwith his brother CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 accused P.C. Tomar had been residing with his brother in law at 402/418 Panchkuyian Raod in 40's and 50's till the retirement of his brother in law. When he had filled the form seeking his own employment, he had declared himself as scheduled caste belonging to Mallah caste. Though, he was asked to produce the scheduled caste certificate by the department but during those days since the certificates were generally not issued hence he had informed his department accordingly. He had also admitted it to be correct that the department had also got verified from the police about his belonging to scheduled caste and an inquiry was also made in that regard and Inquiry Officer had submitted the report that he belonged to scheduled caste. He was given benefits of schedule caste during his whole service. He had admitted that the Government of India had notified the castes belonging to scheduled caste category. He had admitted that the Government of India had circulated Census of India 1961, Appendices to Census Mannual Part I for U.P. mark DA and according to the notification of Government of India, Mallah caste was declared as scheduled caste and it had come within the category of Mujhawar. In view of this submission of the PW, this court is not precluded from taking a judicial notice of such government notification as well. Lastly he had also admitted that his entire family including his father, sister and brother P.C. Tomar belonged to scheduled caste Mallah community. Mallah caste had fallen within the category of scheduled caste in Dehli and U.P.
14. PW9 was one Md. Firasat Ullah S/o Md. Abdul Gaffar Khan R/o House No. 33, CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 Lodhi House, Holigate, Etah, Aged about 54, who had deposed that he was the Ward Member of Nagar Palika Parishad, Etah, U.P. since November, 1979 to FebMarch, 1995 and was representing Rewari Mohalla and Holy Mohalla, Nagla Kachiyana and others. He knew Lal Singh and Anand Lata R/o Rewari Mohalla and by caste they were "Dheemars", which was a backward class in U.P. During his crossexamination by the learned defence counsel Sh. S.P. Ahluwalia, he had stated that he had not gone through the notifications issued by Government of India, State Government or Census of India 1961 and was not aware of the fact that a notification was issued under Census of India 1961 PartI, U.P. whereby Dheemars who were also known as Majhawar, Mujafir, Mallah in District Agra, Etah, etc. were also declared as Scheduled Caste and copy of same was placed on record as mark D. It was also not within his knowledge that circular dated 22.03.1977 had clarified the term ordinary resident which was essentially not meant to be a permanent resident and by this circular the status of any person residing any where in the country having issued S.C. Certificate by the respective States was declared as valid. He had no knowledge about mark DC. He had no personal knowledge about this case nor he knew the accused at all.
15. PW10 was one Lal Singh S/o Sh. Shyam Lal Age 65 years, retd. R/o H. No. 152, Rewari Mohalla, Etah, who had deposed that the name of his father was Shyam Lal and name of his brother was Tota Ram. He was residing at the aforesaid address alongwith his father and brother. Their caste was called as Turai which was also known as Dheemar CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 and Mallah.
In his crossexamination by learned defence counsel Sh. S.P. Ahluwalia, he had admitted that Dheemar, Turai, Mallah were all synonymous of one caste or that all the aforesaid castes were scheduled castes. He had further admitted that his brother and father were given benefits of scheduled castes. He had stated that accused (correctly identified) was his nephew who also belonged to scheduled caste.
16. PW11 was one Sh. Deewan Chand, Additional Director of Education, Directorate of Education, New Delhi. He had deposed that he had remained posted as Director, Personnel, MCD from January 1993 to February, 1996 and used to deal with the cases of promotion, seniority, confirmation, recruitment in all service matter in group A and B and General Cadre of all categories. He had proved the personal file belonging to P.C. Tomar as Ex. PW11/A. He had also placed on record, the letter dated 03.01.1962 Mark P11/1 vide which the post of Garden Overseer was offered to accused P.C. Tomar, who had accepted the said post under general category vide letter Mark P11/2. He had also placed on record, personal file of accused as Ex. PW11/3A and Ex. PW11/3B. He had deposed further that he could not tell as to who had enquired the matter against the accused and what was the fate of the enquiry as he never came across the said enquiry during his tenure there in the MCD.
During his cross examination by the learned APP after declaring him hostile, he had stated that the statement Mark P11/4 was given by him to the CBI as per record.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 In his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he had stated that he had no personal knowledge about the facts of the present case, however, he had stated as per the record. He had not seen the said record in the court, hence he could not specify as to what was that record. He was aware of the facts that an enquiry about the genuineness of the scheduled caste certificate regarding accused P.C. Tomar (correctly identified) was though got conducted however, he was not aware about the final/ultimate result of the said enquiry. Hence, he could deny the fact that said enquiry had ended up in favour of the accused.
17. PW12 was one Sh. Atul Seth S/o Sh. P.K. Seth, R/o 87, Ambika Vihar, Delhi and had deposed that in the year 1994 he was working as LDC in the office of Deputy Commissioner, Delhi, CCS II, (Caste Certificate SectionII), Tis Hazari Courts. He had deposed that during the investigation of this case, he had handed over photocopies of report dated 21.10.1994 of Sh. G.C. Jain, Retired Judge in respect of OBC list and copy of order of Deputy Commissioner, Delhi from his office which were placed on record as Ex. PW12/A & B respectively. However, since he was no longer in the service, hence he could not produce the originals of the same.
In his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he had admitted that he had never personally dealt with Ex. PW12/A & B hence, he could not vouch for the authenticity of the said exhibited documents. He had further stated that he had no knowledge about the fact that the operation of order dated 03.05.1995 of Sh.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 D.M. Sapolia, the then Deputy Commissioner of Delhi was stayed by the Hon'ble High Court of Delhi vide its order dated 29.05.2001 in CM No.1582/2001 in CWP 80/1996 vide Ex. PW12/DA running into four pages.
18. PW13 was one Sabina Verma, working as UDC at Divisional Commissioner's Office at 5 Sham Nath Marg, New Delhi. She had deposed that she was asked by the court to produce original of Ex. PW12/A & B which were not traceable in their office, however, she had produced the photocopies of same in the court. She was not even cross examined by the accused despite availing an opportunity in that regard.
19. PW14 was one Sh. Raman Sabarwal, working as Assistant Director (Song and Drama Division), Ministry of I & B, Bhopal and he had deposed that he was a witness to the search at the house of accused Tomar at A47 and had identified his signature at Point A on search cum seizure memo dated 12.08.1994, the copy of which was Ex. PW14/A. During his crossexamination by learned defence counsel Sh. S.P. Ahluwalia, he had stated that he had not seen the file in the court. He had also stated that he had no personal knowledge about the contents of the file seized vide Ex. PW14/A.
20. PW15 was one Sh. D.S. Pandari, working as LDC at the office of DGSND, Parliament Street, New Delhi, who had deposed that he had witnessed the house search CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 of accused P.C. Tomar at Krishna Nagar, vide memo Ex. PW14/A bearing his signatures at point 'B'.
During his crossexamination by learned defence counsel Sh. S.P. Ahluwalia, he had stated that he had not seen the file in the court nor he had any personal knowledge about the contents of the file seized vide Ex. PW14/A.
21. PW 16 was one Sh. Suresh Chander Aggarwal S/o Sh. Thakur Das Aggarwal, R/o 43, Begumbagh Mohalla, Aligarh, U.P. who had deposed that he had retired from the post of head clerk of Dharam Samaj Inter College, Aligarh in the year 2001. He had worked on this post since 1966. He had seen scholar register EX.PW7/A of his school pertaining to year 195253, Scholar register no. 9076 Ex PW 7/A1, pertained to one Prem Chand Tomar S/o Sh. Tota Ram Kanungo, Sudamagarhi, Aligarh which bear the signature of the then principal late Sh. Har Prasad Sharma at point A. As per record, Prem Chand had shown his caste as Tomar. He had also seen attendance register of class 7th B Ex. PW 7/C at page no 1 of the said register at serial no. 12, there was an entry pertaining to Prem Chand Tomar s/o Sh Tota Ram Kanungo, sudamagarhi, Aligarh. Column of caste against this entry was left blank.
In his cross examination by the learned defence counsel Sh. S.P. Ahluwalia, he had stated that entries in Ex. PW 7/ A & Ex PW 7/C were not in his handwriting. He had admitted that he had never maintained the said registers but those had only remained in his custody. Tomar was a caste. He had no knowledge about the children studying in the CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 school where he was working as Head Clerk. He had denied that the name and parentage of two persons could have been the same. Ex PW 7/A1 pertained to class 6 th and 7th. He had admitted that out of 27 entries in Ex. PW 7/C, the castes of only five students were mentioned. Relevant columns in case of 22 students were lying blank. He had denied the suggestion that since the student shown at serial no. 6 was shown as belonging to Khatik, (caste ) in the relevant columns hence, from serial no. 7 till 19 as well the caste had not been shown because of the reason that they had also belonged to the Khatik caste. Similarly, it was also denied by him that since at serial no. 19 Lala Ram had been shown as Jatav and the candidates from serial no. 20 to 27 had not been categorized hence it would have essentially meant that they were also Jatavs. He had failed to identify any of the students whose names had been mentioned in forms serial no. 1 to 27 in Ex. PW 7 /C. He had stated that he had no knowledge as to whether the caste Majhwar shown at page 67 in Census of India 1971 for Uttar Pradesh included Mallah or not. He had not even denied the suggestion as to whether Majhwar included Mallah or not. He had stated that certain castes were mentioned in the attendance register, which he had not brought. He had no knowledge about the notifications issued by Govt. of India or Govt. of UP form time to time since 1953 till the date of his deposition before the court. He had further stated that he had no knowledge that Govt. of India had clarified all ambiguities in a notification issued on 22.03.77 whereby the term "ordinary residence"
and "permanent residence" were also defined. He also had no knowledge about this case except Ex. PW 7 /A1 and Ex PW 7/C, which were handed over by him to the IO of CBI.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 He had denied the suggestion that all the entries in that register were not correct.
22. PW 17 was one Sh. Joel N. Dass who had deposed that he had remained Principal in the aforesaid college since 1987 to 1999 and had worked as Teacher since 1961. He had seen Ex PW 17/A which was the result of High School Examination pertaining to year 1957. He had signed the register at the time of handing over the same to CBI. He had also handed over scholar register Ex. PW 17/B to the CBI and the relevant entry was at page no. 877 Ex. PW 17/C pertaining to Prem Chand Tomar was bearing the signature of V.C Wartfod. There was a loose application Ex PW 17/D in the register which was purported to have been signed by P.C. Tomar and it also bear his signature at point A which he had made at the time of handing over the same to CBI. After putting court question to him, he had stated that P.C. Tomar was not known to him nor he could have identified his signature on the application.
During his cross examination by the learned defence counsel Sh. S.P. Ahluwalia, he had admitted that he had not maintained Ex. PW 17/A including the portion mark B therein. He had also admitted that this record was not maintained/written when he was working in the school/institution. He had also admitted that though there were various cuttings/over writings on Ex. PW 17/A but he had failed to explain as to under what circumstances such cuttings/over writings were made. He had admitted that he could not comment on the authenticity of Ex. PW 17/A and entries there in as it was neither maintained by him nor during his tenure. He had also admitted it to be correct that there CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 could have been so many persons with the same name and parentage. He had failed to identify any of the students whose names were mentioned in Ex PW 17/A. Similarly, he had stated that Ex PW 17/B &C were also not maintained by him or under his orders nor he could have identified the students mentioned in Ex PW 17 /C. Same was also his reply regarding Ex PW 17/C for which also, he could not have vouched for the authenticity of the entries made therein however, since it was a record, hence, it must have been presumed as authenticated. He had admitted that he had no knowledge about the person who had moved Ex. PW 17/B nor he could have identified the person who had moved this application. He had no knowledge about the various notification issued by Government of U.P., Census Board of India/Government of India pertaining to Scheduled Caste or Scheduled Tribes. He could not say as to whether Mallah caste was a scheduled caste in U.P. or not.
23. PW 18 was one Sh. Naresh Kumar S/o Sh. Karan Singh, posted as Secretary Shipping & Public works Department in Anadaman Nichobar Administration who had deposed that he was posted in the office of Deputy Commissioner Delhi as ADM in September, 1993 and he was Incharge of North East Delhi and Caste Certificate Issuing Branch. He had identified the signature of Sh. D.M. Sapolia, the then Deputy Commissioner on the order passed in file no. F573/94/CCS Ex. PW4/A running into 9 pages as he had worked under him and had also seen him signing and writing. He had further deposed that he had also examined the complaint received from National SC ST CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 Commission alleging that Sh. Tomar had obtained a fake caste certificate. He had deposed that they had called Sh. Tomar either to give evidence in support of his claim or otherwise to furnish his explanation about the allegations made against him that he had falsely obtained the caste certificate. He had deposed that as ADM, he had examined all the record and had recommended to the competent authority i.e. Deputy Commissioner of Delhi for cancellation of fake certificate issued in favour of Sh. Tomar. During his cross examination by learned defence counsel Sh. S.P. Ahluwalia, he had stated that he had not brought the file wherein he had conducted the enquiry/examination on the complaint of National Commission for SC and ST and wherein he had examined various records. He had further stated that he had also not brought the reply filed by the accused. He had stated further that he was not in a position to bring the file as he had been posted outside Delhi and the file should have been called from the Revenue Department of the Government of Delhi.
Later on he was also shown a copy of letter no. F 573/DC/CCS2/9293/433 dated 24.11.93 Ex PW 18/DA which bear his signature at point A. He had deposed that he was aware of notification issued by Government of India/Government of U.P with regard to categories of various castes falling under SC/ST. He was also shown a gazette notification Ex PW 18 /D2 to which he had stated that he was also aware of this notification. He was also shown Ex PW18 /DA to which he had replied that this document Ex PW 18/DA was not his finding but was only a show cause notice in respect of a complaint received by the DC Delhi office issued to P.C Tomar. He had further CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 deposed that he was also aware of the finding after show cause notice was issued to accused and that is why the order was issued which was referred in his examination Ex PW 4/A2. He had stated further that he had remained associated in the enquiry against the accused and had also conducted an inquiry in the beginning and had given his finding to the Dy. Commissioner Delhi. However, he had failed to produce those findings as same were already given to the Dy. Commissioner of Delhi which might have been available in the office of Govt. of Delhi. He had deposed that since he had left Delhi Govt. hence, he was not able to say as to whether the same was available with the Delhi Govt. or not and on the basis of his finding, Sh. D.M. Sapolia, the then Dy Commissioner had issued order PW4 /A2, He had also stated that he was aware of the Census report Ex. PW3/A and had deposed further that during the course of inquiry he might have seen large number of documents but he could not tell whether he had seen Ex PW1/A and document Ex PW 18/D3 due to passage of time. He had deposed that it was the discretion of the member of the SC/ST community to claim benefits of various notifications issued by the Govt. and if he wanted to forgo those benefits, he could have done same as well. He had also deposed that due to passage of time he could not remember as to what were the documents on the basis of which he had given his recommendations to the Dy. Commissioner. He had denied the suggestion that the documents referred in Ex PW18/DA were the basis of his recommendation and had reiterated further that it was only a show cause notice and not the recommendation. He was further not supposed to follow as to what had transpired after his recommendation CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 sent to the DC. He was shown a document Ex PW18/D4 to which he had stated that it bear the signature of Sh. D.M.Sapolia, the then DC Delhi at point encircled A. He had however denied the suggestion that he had issued a show cause notice to P.C.Tomar without going through the correct facts/various notifications issued by Govt. of India, Govt. of U.P . with regard to various instructions issued by those authorities from time to time. He could not remember as to which document he had considered while issuing show cause notice to establish the identity of the accused. He could not remember what other documents were considered by him while recommending to the DC Delhi as the file might have been contained all such documents. He had denied the suggestion that he was deposing falsely or that the facts mentioned in the show cause notice were incorrect and were not supported by any cogent evidence/true facts.
24. PW 19 was one Sh. Ranvir Singh S/o Sh. Raghuvir Singh who had deposed that he had worked as Revenue Assistant in the office of Collectorate Mainpuri since 1958 to 1997. He had further deposed that he knew Sh. Tota Ram who was naib Tehsildar in Collectorate Mainpuri and was residing at Mohalla Rewari Distt. Ettah. He had further deposed that Tota Ram was Dhimar by Caste which was also known as Kahar. Caste Dhimar was covered by backward class and Dhimar was not a S/C. In his cross examination by the learned defence counsel Sh. S.P. Ahluwalia, he had stated that he had no knowledge as to since when the benefits of SC and ST were given by Govt. of India and other States. He had stated that he had no knowledge of CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 notification dated 17.04.1953 issued by ministry of Home Affairs. As per State Govt. order, Dhimars were not SC. However, he could not remember as to whether any G/O was ever issued by State of U.P. mentioning therein that the certificates issued by other States with regard to SC/ST shall not be considered as valid. He had no knowledge about the Census of India, U.P. wherein Mallah, Kewat, Kahar and Dheemars were declared as SC who belonged to Etah, Unnav etc. He could not admit or deny as to whether any other person named Tota Ram who belonged to SC was also residing in Rewari Mohalla. He had no knowledge about the family members of Tota Ram. He had also failed to identify the family members of Tota Ram including the accused. He could not tell as to whether accused belonged to SC. He had also admitted the report Ex. PW19/DA. Though, he knew many persons with the name of Tota Ram but only one Tota Ram Dhimar among all of them was working as Naib Tehsildar. He had no knowledge as to whether said Tota Ram had ever worked as Stone Cutter at Delhi or had ever resided there with his family or not. It was also not within his knowledge that the elder son of said Tota Ram was working at U.P. or not.
25. PW20 was one Sh. Harish Chand Gupta S/o Sh. Hukum Chand who had deposed that he was working in Collectorate, Mainpuri as an employee since 1958. He knew Tota Ram who was AIT N/T in the office of Collector at Mainpuri. He had also deposed that Tota Ram belonged to Kahar Caste which was also known as Dheemar. Dheemar/Kahar caste was a backward caste and not a S.C. He had lastly deposed that he had worked with CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 Tota Ram for about 89 years but he could not remember the exact years.
During his cross examination by the learned Defence counsel Sh. S.P. Ahluwalia, he had stated that he could not remember as to when Constitution of India had come into existence. He had no knowledge as to whether for the first time the benefits of SC/ST were given in the year 1952. He had no knowledge about the notifications dated 17.04.1953, 25.05.1960, 22.03.1977. He had stated further that he had no knowledge as to which was the notification vide which said that Dhimars were not recognized as SC. He was not known to any of the residents of Rewari Mohalla. He had no knowledge about the family members of Tota Ram including the present accused. He had no knowledge as to whether elder son of Tota Ram was also in Government service and was availing the benefits of SC as he also belonged to Mallah Caste. He had no knowledge as to whether Tota Ram had resided in Delhi from 1945 to 1954 and had worked as Stone Cutter. He had no knowledge as to whether Tota Ram had resided in Delhi with his family members with his brother in law and he knew nothing about the said Tota Ram. He only knew one Tota Ram who had worked as Naib Tehsildar in the office of Collector at Mainpuri, U.P.
26. PW 21 was one Sh. R.K. Saini, DSP/CBI/ACUIV who had deposed that in the year 1994, he was posted in the ACB Branch of CBI, New Delhi and on 05.01.1994, he was entrusted with the investigation of this case no. RC 2A/94. He had identified the signatures of Supdt. of Police Sh. A.W. Degwekar, the then SP, CBI at point 'A' on the FIR Ex. PW 21/A. He had further deposed that during the course of investigations, he CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 had seized relevant records and had also recorded statements of the witnesses and had conducted searches. He was shown Ex.PW 14/A on which he had identified his signature at points C1 to C5. He was also shown seizure memo Ex. PW 21/B dated 30.10.94 on which he had identified the signatures of Sh J.S. Emmaluel at point A who was entrusted with part investigation of this case. He was also shown the seizure memo dated 26/10/94 Ex. PW 5/A on which he had identified his signatures at point B. He had deposed that through this seizure memo Ex. PW5/A, he had seized documents from Sh Hari Shankar Gupta. He was shown the seizure memos Ex.PW 5/B, Ex. PW 5/C, Ex. PW 6/A and Ex.PW 6/B on which he had identified his signatures at point B. He was also shown seizure memo dated 17/08/94 Ex. PW21/C on which he had identified his signatures at point A. He had further deposed that through this seizure memo Ex. PW21/C, he had seized record from the Sh. Deewan Chand, Director Personnel, MCD, Town Hall. He was also shown shown seizure memos EX.PW 7/D1 & D2 on which he had identified his signatures at point B. He was further shown seizure memo dated 15.04.1994 Ex. PW21/D and through this seizure memo he had seized documents from Sh. Amar Singh of Ministry of Civil Aviation. He was also shown seizure memo dated 14/04/94 Ex. PW 21/E through which he had seized documents from Sh Joen N. Dass, Principal, Christian Agriculture Inter College, Etah, UP and he had identified his signatures at point B who had singed the same in his presence. He was also shown seizure memo dated 21/01/94 Ex PW 21/F through which he had seized record from Sh Rajender Nishcal, Dy. Directer( Vigilance) II, MCD and had identified his signatures at CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 point B who had singed in his presence. He was also shown another seizure memo dated 21/01/94 Ex PW 21/G through which he had seized records from Sh Shailesh Kr. Stenographer, in the office of Director Personnel, MCD and had identified his signatures at point B who had signed in his presence. He had further deposed that he had recorded statements of all the witnesses u/s 161 Cr.P.C and nothing was added to or omitted from what they had stated before him. He had further deposed that thereafter, he was transferred and remaining investigation was done by Anil Kumar who had filed the charge sheet. During the course of investigation, Sh J.S. Emmalcul and Sh. V.M.Mittal, Inspectors were deputed to conduct part investigation in this case. He had further deposed that through the seizure memo dated 12/08/94 Ex. PW 14/A, he had seized one folder containing scheduled caste certificate mark A, caste certificate issued by Harijan Welfare officer mark B, appointment letter of P.C.Tomar dated 15/01/62 Mark C, Degree issued by Directorate of Food Utilisation, U.P issued to P.C. Tomar Mark D, certificate issued by K.L.Mathur mark E, letter dated 29/12/56 and 08/11/57 addressed to Tota Ram mark F & G, employment certificate issused in favour of P.C. Tomar Mark H, a letter Dt. 27/03/93 addressed to P.C Tomar is mark J containing tow pages, two certificates issued by Mission Boys H.S. School Etta, dated 27/06/57 in favour of Pram Chand Tomar Mark K, Mark sheet dated 30/06/58 and mark sheet for the year 1959 issued by Board of High School and Intermediate Education, Uttar Pradesh Mark L and M, letter Ex. PW 6/D11, certificate issued by Tehsildar Maistrate Jasrana, Distt. Mainpuri, dated 09/04/55 and 07.06.1955 mark N & O, another certificate dt. 21/04/93 CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 and 06.06.1955 issued in favour of Vinod Chandra by Tehsildar Magistrate Mark P & Q were received by him along with other documents which were seized vide memo Ex PW 14 /A. He had further deposed that P.C. Tomar had also made a representation and file in respect of said representation was Ex. PW 21/H. He had also seized one file relating to selection of candidate for the post of Garden Oversear, MCD vide Ex PW 21/J. Two seizure memos were Ex. PW 21/C. During his cross examination by the learned Defence Counsel Sh. S.P. Ahluwalia, he had stated that he had no knowledge as to whether any preliminary enquiry was got conducted by any officer of CBI including Sh. A.W. Degwakar the then, S.P. CBI. He had though admitted that it was for the officers who had ordered for registration of the case under any cognizable offence to find out as to whether any cognizable case was being made out and also as to which of the sections were attracted. It was for the head office to see whether charge sheet was to be filed or not on the basis of evidence collected during the investigations. He had stated that he could not remember the name of the officer concerned who was working as Head at that time. He could not remember as to when the provisions of reservation of S.C and ST were made in the Constitution of India but he had remembered that for deciding the case of a person, he should have been an ordinary resident of the state from which he was obtaining the S.C certificate on 20/09/51. However, he could not tell as to whether the criteria of being an ordinary resident of the State from which one was obtaining the certificate had remained effected till 22/03/77 or not. He had no knowledge as to whether circular dated 22/03/77 was in CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 fact issued by Government of India or not. He had admitted that notification bearing no. BC 12025/2/76SCT 1 dated 22.03.77 had come into existence on the above mentioned date. He had further stated that as per the said notification, while issuing SC certificate, as mentioned in para 3 thereof, specific verification was required to be done from the revenue record in respect of the ordinary residence of the applicant. He had also placed on record Ex. PW 21/A &B which were seized by him and were filed alongwith a charge sheet.
He had also admitted it to be correct that the aforesaid notification dated 22.03.1977 had come into existence on the very same date itself which was mentioned on the face of it and as per the said notification, while issuing SC certificate, the verification was required to have been done from revenue record of the ordinary place of residence of the applicant. He had denied having any knowledge regarding the stay granted by the Hon'ble High Court of Delhi to the findings given by the Deputy Commissioner pertaining to cancellation of SC certificate and had stated further that since the proceedings before the CAT were filed after conclusion of investigation in the present case, hence, he had no knowledge about the order Ex. PW21/DA passed by the CAT on the petition preferred before it by the accused.
27. It is pertinent to mention here itself that neither the other IOs were examined in this case by the CBI nor even the said Deputy Commissioner, Sh. D.M. Sapolia had ever bothered to appear in the witness box to depose in this case despite his continuous CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 availability at Delhi. Thereafter, PE was closed vide order dated 11.02.2010.
28. Statement of accused was recorded under section 313 Cr.P.C. wherein the entire incriminating evidence appearing against him on record was put to him in its verbatim to which he had stated that for the purpose of issuance of SC certificate, the main requirement was only that the person concerned should have been an ordinary resident of the area from which he was issued the certificate and there was no precondition or precedent regarding his being a permanent resident of the place from where the certificate was intended to be issued to him. Further, it was stated by him that the alleged school and residence records were not duly proved in accordance with law by the concerned witnesses who had produced the same and also that the order passed by the then Deputy Commissioner, Sh. D.M. Sapolia was not in accordance with law and was malafide in nature which was already quashed and set aside by the CAT. Since his father was a Mallah by caste which was also known as Majhi, Majhawar, Mujafir and Kewat belonging to schedule caste. Hence, the present accused was also a schedule caste and was entitled to all the benefits arisen there from. He had lastly claimed his innocence and false implication in the present case.
29. After appreciation of the evidence of the prosecution and examination of the testimonies of the witnesses, I have no hesitation in holding that the investigating agency had miserably failed to prove its allegations beyond any reasonable doubt against the CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 accused. All the family members of the accused who were cited as the prosecution witnesses had totally turned hostile and had not supported the version of CBI and since the real uncle, real brother as well as brother in law of the accused had claimed themselves to be scheduled caste by virtue of their belonging to Mallah castes. Hence, by no stretch of imagination, it could have been presumed that the accused did not belong to said caste.
30. So far as the certificate issued to accused related to his caste is concerned, same was duly proved by PW2 & PW3 that the said certificate was genuine and was validly issued to the accused after proper examination of his claim and despite conducting an inquiry into the matter twice, no illegality could have been imputed to the genuineness and authenticity of the said certificate.
31. Even the record witnesses examined by the prosecution had not been able to prove the allegations of the prosecution beyond any reasonable doubt and from the documents placed on record such as Ex. PW9/DA, (Census of India 1961), Appendices to Census Manual PartI, for U.P., it has become apparently clear that the caste of the accused appearing at serial no. 51 at Page67 thereof was regarded as a schedule caste being synonymous to term Majhawar. Even the findings of CAT rendered in TA No. 96/2009 in writ petition (C) no. 7139/07 dated 01.06.2009 are also to be kept in mind wherein the claim of accused was upheld by the CAT as well.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39
32. So far as the allegations regarding obtaining of said certificate by the accused by misrepresentation and fraud are concerned same were examined twice by the department concerned and every time the findings have come in favour of the present accused and no deficiencies, irregularities, deceits and fraudulent means were ever detected in any of his claims made by him for issuance of caste certificate in his favour. Even in the notification published in the year 1951 also, the caste Mallah was cited as a schedule caste and further clarification in this regard was made absolute by the subsequent notification issued on 22.03.1977 in the form of circular by way of which even a distinction was also made between an ordinary resident and permanent resident and ordinary resident does not essentially meant a permanent resident as well. Hence, on the date of issuance of certificate to the present accused pertaining to his caste i.e. either on 11.07.1961 or on 28.12.1966, he was supposed to be governed by the OM No. 42/34/52 NGS dated 17.04.1953 pertaining to the Ministry of Home Affairs which talked about the eligibility for a candidate to obtain such certificate being an ordinary resident of the place from which the certificate was sought to be issued by him and this OM was further affirmed by the OM dated 25.05.1960. Hence, the witnesses examined by the prosecution had failed to prove the fact beyond any reasonable doubt that either the accused was an ordinary resident of U.P. as claimed by the investigating agency or he had been born and brought up at U.P itself. Hence, all these short falls are sufficient enough to cause a severe dent in its story as set up by the prosecution.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39
33. Out of the total number of witnesses examined, none of the witnesses had stated that the accused did not belong to Mallah caste rather its own witnesses had supported the claim of the accused that he was a Mallah by caste. Further, it has not been explained in proper manner by the investigating agency or by either of the witnesses examined by it as to what forgery was done by the accused and in respect of which of the documents and in what manner the same was done by him. Therefore, in view of the testimony of PW 1 himself, the allegations as leveled against the present accused prima facie appear to be bald in nature having no substantial force or legal and factual sanctity behind them. Further, PW2 had categorically admitted that after conducting a detailed inquiry into the matter, the caste certificate issued to the accused was found to be genuine and this fact was also communicated by him to the complainant Sh. Yaad Ram Singh. It was also admitted by PW9 Md. Firasat Ullah that he was not aware about the notification which was issued in Census of India 1961 PartI, U.P. whereby Dheemars who were also known as Majhawar, Mujafir, Mallah in the District of Agra, Etah Etc. were declared as Schedule castes. It was also admitted by PW10 that Dhimar, Turai, Mallah were synonymous of one caste and were regarded as schedule castes.
34. Hence, in view of all these short falls as discussed above appearing in the prosecution story, I have no hesitation in holding that the prosecution had miserably failed to prove its case against the present accused beyond any reasonable doubt by bringing any of his acts or omissions as allegedly committed by him within the four CBI. Vs. P.C. Tomar, RC no.2 (A)/94 39/39 corners of the definition of an offence as defined in the books of Statute. Accordingly, accused stands acquitted from the charges of the offences alleged to have been committed by him. His bail bond and surety bond stands cancelled and discharged. Original Documents of surety, if any be returned to its rightful claimant(s) after cancellation of endorsement on the same.
35. File be consigned to record room after completion of other necessary formalities in this regard.
ANNOUNCED IN THE OPEN COURT ( LOKESH KUMAR SHARMA)
TODAY ON 05.08.2013. CMM/SE/Saket Court/New Delhi.
CBI. Vs. P.C. Tomar, RC no.2 (A)/94