Delhi District Court
State vs . Ashok Kumar@ Bittu & Ors. on 23 August, 2012
CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02: CENTRAL ROOM NO.216:TIS HAZARI COURTS :DELHI ID No: 02401R0007112012 CA NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120 B IPC STATE Vs. ASHOK KUMAR@ Bittu & ORS. IN THE MATTER OF: STATE .......... Appellant VERSUS 1. ASHOK KUMAR @ BITTU S/o SHRI BHAGWAN DAS HOUSE NO. 2336, PUNJABIAN GHAR DELHI 2. GULSHAN VERMA S/o SHRI BRIJ LAL HOUSE NO. 2/39A, VIJAY NAGAR, P.S. MODEL TOWN, DELHI 3. ASI SHEODAN SINGH (Retd.) S/o SHRI HARPAL SINGH HOUSE NO. E10/550, NEHRU VIHAR DAYAL PUR, SHAHDARA, DELHI ......... RESPONDENT / ACCUSED
CRIMINAL APPEAL AGAINST THE IMPUGNED JUDGMENT AND ORDER DATED 07.09.2011 PASSED BY LD. CMM DATE OF INSTITUION : 06.01.2012 DATE OF ARGUMENTS : 18.08.2012 DATE OF ORDER : 18.08.2012 ORDER ON APPEAL:
1. This appeal has been preferred by State against the judgment of acquittal passed by Ld. ACMM on 07.09.2011 whereby all the three respondents were acquitted in a case U/s 420/468/471 /120B IPC of PS I.P. Estate.
Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 1/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012
2. I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Counsel Sh. Rajesh Dua for respondent Ashok Kumar, Ld. Counsel Sh. Mukul Sharma for respondent Gulshan Verma and Ld. Counsel Sh. Rakesh Srivastava for respondent Sheodan Singh . I have perused the appeal file as well as TCR.
3. Brief facts necessary for disposal of this appeal are that a secret information was received by the office of Crime Branch to the effect that a racket is being operated in Delhi in which Passports carrying fake names and addresses are being got prepared in connivance of Spl. Branch officials .
4. A specific input received was qua issuance of one such Passport under the name Jatin Rajpal, S/o Shri Bhagwan Dass, R/o 1/11361 , Subash Park, PS Welcome Delhi. Upon inquiry it was found that the address mentioned in the Passport was not in Passport Holders name. Even though house no. mentioned was found in Gali no. 8 but it was occupied by one Smt. Asha Kulshreshth who denied knowing any person by the name Jatin Rajpal. It was revealed that verification of this Passport was done by respondent no.3 ASI Sheodan Singh (now retired) of Spl. Branch, under his remarks "satisfied". In the domicile inquiry the ASI gave certificate of witness of one Raj Kumar purportedly residing at 1/11362 and one Shobha Ram purportedly residing at 1/11352 who were shown to have stated that they know Jatin Rajpal who was residing there for the last 20 years. This report dated 22.09.91 was signed by the ASI and the above persons. Qua the police station report the ASI mentioned that there is no criminal record of the said Jatin Rajpal . ASI also enclosed photocopy of Ration Card No. 58914 purportedly issued in the name of Shakuntla Devi mother of said Jatin Rajpal. Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 2/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Inquiries from Food and Supply Department Circle 43 at Bhajan Pura revealed that the colony Subash Park, PS Welcome does not fall under their jurisdiction and rather its fall under the jurisdiction of circle no. 2. The original ration card was found genuine but the photocopies submitted were found to be fake.
5. Further investigation revealed that the said Passport holder Jatin Rajpal was actually respondent Ashok Kumar @ Bittu, S/o Shri Bhagwan Dass R/o 2336, Gali Kakwan, Basti Punjabiyan, Subzi Mandi, Ghanta Ghar. He obtained the new Passport in the wrong name and address as he failed to get his old Passport renewed on account of his involvement in two criminal cases first being Under Gambling Act with PS Subzi Mandi and other under Arms Act with PS Adarsh Nagar. He conspired and succeeded in getting a new Passport under a fake name and address as Passport no. K071920 on 08.10.91 in connivance with other accused persons.
6. It was revealed that accused Ashok Kumar @ Bittu met co accused Gulshan Verma of Vijay Nagar at a Chit Fund Company . There Gulshan Verma offered him that he can arrange an original Passport in fake name & address for him. A deal was struck. Gulshan Verma got signed three applications for Ashok Kumar under a disguised name of Jatin Rajpal by forging the columns of the Passport form. Accused ASI Sheodan singh joined the conspiracy and prepared the fake reports and helped Ashok Kumar @ Bittu and Gulshan Verma in preparing the fake Passport. On this forged Passport accused Ashok Kumar @ Bittu travelled to Hong Kong under disguised name of Jatin Rajpal on 08.10.91 and at the Immigration Counter he also signed as Jatin Rajpal. All those documents were also seized. Exhibits were sent to forensic lab. The Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 3/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 story line of the prosecution was corroborated by the CFSL Report. Accused Ashok Kumar and Gulshan verma were arrested while accused Sheodan Singh got benefit of Anticipatory Bail.
7. Upon conclusion of investigation charge sheet U/s 419/420 /468/471/120B IPC was prepared on 21.07.93 and filed before Ld. ACMM on 12.02.94. After the accused were summoned they were charged on 16.05.98 . All the accused were charged with conspiracy apart from 468/471 IPC . Accused Ashok Kumar was additionally charged with offence punishable U/s 420 IPC.
8. During the course of trial, in order to prove its case prosecution examined 19 witnesses in all . It was followed by recording of Section 313 Cr.P.C. statements of accused during which they claimed that they have been falsely implicated in this case. Accused Ashok Kumar @ Bittu was in a total denial mode and he simply gave evasive denial replies. He denied that the forged Passport was obtained by him in a disguised name of Jatin Rajpal or that he used it to visit to Hong Kong. He pleaded bald ignorance to the Passport Form containing his photo.
9. Accused Gulshan Verma took a plea that he had filled up the columns of the Passport Form on the asking of the person with whom he was learning work. He did not avail the opportunity to lead evidence in his defence.
10. Accused Sheodan Singh admitted that the inquiry of the Passport in the name of Jatin Rajpal was conducted by him . He however denied that he prepared a false report under a criminal conspiracy with the coaccused . He had accepted that the report on the basis of which Passport was issued was prepared by him . He examined one DW Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 4/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 in his defence.
11. After hearing both the sides Ld. Magistrate passed the impugned judgment of acquittal.
Hence this Appeal by the State.
12. While opening his submissions the attention of this court is drawn by Ld. Addl. PP for State to PW2 Smt. Asha Kulshretha, who deposed that the address & house no. 1/11362, Subash Park belong to her & her family since 1983 & no person by the name of Ashok Kumar @ Bittoo (Jatin Rajpal) even resided there. She categorically stated no Policeman ever came to her house for any Passport Enquiry.
13. PW3 Chander Bhan who was Inspector with Food and Supply Department categorically deposed that the photocopy Ex. PW 7/D (submitted by accused Sheodan with the verification report) of the Ration Card was not issued by Circle No. 2 even though the area Subash Park, Shahdara fall in their Circle.
14. PW4 Umrao Singh Asst. Regional Passport Officer proved on record the Original Passport Application Ex. PW 4/A1 containing photograph of accused Ashok Kumar @ Bittu in the Passport form filled as Jatin Rajpal . The other original papers filed with the form are Ex. PW 4/E2 and A 3 i.e. Personal information form and CID Verification Report. This witness was not cross examined by accused Ashok @ Sheodan Singh. He was not even suggested that the Passport Form was forged or manipulated in any manner.
15. PW5 Rajesh Jain and PW10 Rakesh Kumar identified accused Ashok and stated that Ashok Kumar is a resident of 2336, Gali Kakwan , Subzi Mandi.
16. PW6 SI Jagdish was posted as SI With FRRO as per which passenger with Passport Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 5/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 K071920 travelled abroad under the name Jatin Rajpal. He proved the passenger list, immigration card etc. as Ex. PW 6/A to E.
17. PW7 Retd. ACP Harshwardhan was Insp. in Spl. Branch when he assigned the Passport Verification Form in the name Jatin Rajpal to accused Sheodan Singh . He proved the verification report and annexed documents as Ex. PW 7/A to D.
18. PW8 Sh. M.K. Aggarwal is Sr. Scientific Officer, CFSL, CBI and he proved his detailed forensic report as Ex. PW 8/A to Ex. PW 8/D, as per which he compared the questioned handwriting and signatures available on the Passport Application Form and related documents namely Q1 to Q48 with specimen signatures and handwriting of all the three accused as S1 to S36. As per the report, predominantly, the handwriting and signatures tallied with the respective accused as per the prosecution case. Interestingly accused Gulshan Verma and Sheodan did not cross examine this witness on the report and as such as per settled legal proposition , the contents of the report are admitted by them.
19. It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence.
20. In AIR 1957 SC 369 and also in AIR 1968 SC 147 Hon'ble Supreme Court has held, " In a case where defence is not suggested to PWs , defence version may be rejected as an afterthought."
Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 6/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012
21. In Babu Lal Vs. Caltax (India Ltd.) A 1967 C 2005 it was ruled, " generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account."
22. In 1990 Crl. (NOC) 125 it was ruled, " When defence does not cross examine a witness on certain facts, those facts are thus admitted by defence."
23. In case titled, "Satyender Kumar Sharma Vs. Jitender Kudsia" 2005 DLT 498 Hon'ble Delhi High Court while referring to Section 138 Evidence Act qua cross examination ruled, " If a witness is not cross examined on a particular point , the opposite party must be deemed to have accepted truth of the statement."
24. Further more, it is interesting to observe that even though in the Appeal in hand defence has tried to score a point by referring to identification of Prisoner's Act'1920 qua lack of permission of Court before taking of specimen signatures and handwritings of accused persons but not a single question was put to the handwriting Expert qua the same dismissing their own identity and their authoring the specimen sheets.
25. PW11 Ct. Ashok proved the sample and writing sheets of accused Ashok Kumar @ Bittu as Ex. PW 11/A. PW12 Ct. Avdesh Narayan and PW13 Ct. Jai Prakash proved specimen. PW14 ASI Mahender was posted at PS Welcome when accused Sheodan Singh came for verification of criminal antecedents of "Jatin Rajpal".
26. PW15 Ct. Sumit is witness of taking of sample and specimen handwriting of accused Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 7/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Sheodan Singh and Gulshan Kumar. This witness too has not been cross examined by either of accused despite grant of opportunity. Hence the fact that accused gave specimen signature and handwriting, stands admitted.
27. PW19 Inspector Ramphal is IO of the case.
28. The detailed CFSL report Ex. PW 8/A to D reveals that the handwritings on the Passport Application Form along with the Personal Particular Verification Form marked as Q 2, Q 3, Q 6, Q 12, Q 13, Q 15, Q 18, Q 32, Q 33 and Q 36 were in the handwriting of accused Gulshan Verma who gave his specimen handwriting in sample sheets S 23, S26, S 27/1 to 30 , S 28 and S 29.
29. As per the CFSL Report , the signatures and name on the Passport Form as "Jatin Rajpal" as well as on the Emigration Card i.e. Q11, Q 14, Q 14A apart from Q 25 to Q 30 were appended by accused Ashok Kumar @ Bittu as they tallied with the specimen handwriting and signatures given by him as S1, S7, S3/1 16, S4/116, S8/116,S9/116, S10, S16, S17/116, S18/118, S19/116 , S 20/118.
30. As per CFSL Report , the Verification Report from Q43 to Q48 was prepared by accused ASI Sheodan Singh as the same tallied with specimen handwriting and signature given by him as S 30 to S 35.
31. It is argued by Ld. Addl. PP that once the Scientific Evidence had come on record to prove the charge against the accused persons apart from supporting and oral documentary evidence alongwith existence of photographs of the accused Ashok Kumar on the Passport Application on the basis of which the fake Passport was got issued by accused Ashok Kumar under a criminal conspiracy with Gulshan Verma and Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 8/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 ASI Sheodan Singh, Ld. ACMM ought not have acquitted the accused persons.
32. At the onset the primary plea raised by all the accused is that the CFSL Handwriting Report can not be read and relied against them in so far as their sample handwriting was taken at the time when they were in custody and that as per Identification of Prisoner Act '1920 their specimen handwriting could not have been taken without permission from the concerned Court in terms of 2010 (2) JCC 1416 . Perusal of this judgment reveals that Division Bench of Hon'ble High Court observed that "unless steps qua identification of the accused are taken and permission of Court is obtained under Identification of Prisoners Act'1920 , reports qua specimen etc. deserves to be excluded while considering specimen incriminatory evidence."
33. Law on this aspect is well settled since 1961. Constitution Bench of Hon'ble Supreme Court consisting of 11 Judges in case titled State of Bombay Vs. Kathi Kallu Oghad (1962 ) 3 SCR 10 , while upholding that the act of police in obtaining the specimen signature and writing etc. does not violate Article 20 (3) of the Constitution, observed "That is why it must be held that by giving these impressions or specimen handwriting the accused person does not furnish evidence against himself. So when accused person is compelled to give a specimen handwriting or impression of his finger, palm or foot it may be said that he has been compelled to be a witness; it can not however, be said that he has been compelled to be a witness against himself........... There was no infringement of Article 20 (3) of the Constitution in compelling an accused person to give his specimen handwriting or signature or impression of his thumb, finger , palm or foot to the Investigating Officer or under orders of the Court for the purpose of comparison"
Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 9/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012
34. Similar view was taken by Hon'ble Supreme Court in State of UP Vs. Boota Singh (1979) (1) STC 31.
35. The case law relied by the defence not only does not discuss the above Constitution Bench Judgment of Hon'ble Supreme Court but the same also stood over ruled by Full Bench Decision of Hon'ble Delhi High Court in case titled Bhupinder Singh Vs. State Crl. Appeal 1005 / 2008 , dated: 30.9.2011 , hyper link - http:// indiankanoon.org/doc/1055439. In this matter the question referred to the Full Bench was " Whether the sample finger print given by the accused during investigation U/s 4 of the Identification of Prisoners Act'1920 without prior permission of the Magistrate U/s 5 of The Act will be admissible or not ? ". Hon'ble Full Bench of Delhi High Court relied on Inspector of Police Vs. N.M.T.Joy (2004) 5 SCC 729 for observing that, " Admissibility of evidence or a piece of evidence has to be judged having regard to provisions of the Evidence Act." While relying Puranmal Vs. Director of Inspection (1974) 1 SCC 345, it was observed, " Evidence obtained on an illegal search can not be excluded." While relying State of Karnatka Vs. Y.Reddy , AIR 2000 SC 185 , it was observed that " Criminal Justice should not be allowed to become Casuality for wrong committed by the Investigating Officers." While relying State Vs. M.Krishan Mohan, (2007) 14 SCC 667, it was observed, " Specimen , fingerprint and handwriting can be taken from an accused." While relying State Vs. Navjot Sandhu (2005) 11 , SCC 600, it was observed , " Even if Evidence is illegally obtained, it is admissible."
Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 10/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012
36. While discussing Section 2 (h) Cr.P.C. qua definition of investigation and relying on Directorate of Enforcement Vs. Deepak Mahajan, AIR 1994 SC 1775 it was observed by Full Bench of Hon'ble Delhi High Court that , " the term investigation as defined in Cr.P.C. has an inclusive definition. Infact investigation includes all efforts of a police officer for collection of evidence namely proceeding to the spot , ascertaining facts and circumstances, discovery and arrest of suspected offender, collection of evidence relating to commission of offence which may consist of examination of various persons including the accused and taking of their statements in writing and search of places or seizure of things which are considered essential for investigation and to be produced at the trial." Full Bench of Hon'ble Delhi High Court further observed, " that the view taken by Ld. Single Judge of Hon'ble Delhi High Court in Sunil Kumar @ Sonu Vs. State Crl.Appeal 446 of 05 , decided on 25.3.2010 is correct law. The observations of Ld. Single Judge upheld by Hon'ble Full Bench in the reference are "It is true that the specimen finger print impression of the appellants were taken by the IO directly and not through the Magistrate as provided in Section 5 of the Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification Prisoners Act specifically provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurement to be taken in the prescribed manner. In view of the independent powers conferred upon a police officer under Section 4 of the Act, it was not obligatory for him to approach the Magistrate under Section 5 of the Act. He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him. Therefore, no illegality attaches to the specimen finger print impressions taken by the Investigating Officer. The court needs to appreciate that the very nature and characteristic of material such as finger prints renders it intrinsically and Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 11/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 inherently impossible for anyone to fabricate them. If there is an attempt to fabricate finger prints, that can certainly be exposed by the accused by offering to allow his finger prints to be taken so that the same could be compared through the process of court. Crl. A. No. 1005/2008 Page 6 of 15 None of the appellants has come forward to the court with a request to take his finger print impressions in the court and get them compared with the chance finger prints st lifted by PW1 from Car No. DL 2CA 4116 on 21 December, 2000." (Emphasis supplied)
37. In another Division Bench Judgment of Hon'ble Delhi High Court titled Ved Pal @ Vedu Vs. State Crl. Appeal 791 of 09 decided on 13.10.11 Hyper link - http:// indiankanoon.org/doc/1434066 held while upholding the conviction in a kidnapping for ransom matter , " the appellant can not escape from ransom note .... the Expert Report clearly indicate that the person who wrote the red enclosed writing ..... also wrote ..... specimen handwriting of appellant Ranbir Singh ......an argument has been raised that specimen handwriting of Ranbir @ Pappu could not have been taken in the course of investigation and that the specimen handwriting can only be taken when the matter comes to Court, with permission of the Court, in view of provision of Section 73 of Indian Evidence Act. We do not agree with this contention. By virtue of Section 73 of th Indian Evidence Act , it is provided that when the matter comes before the Court, the specimen handwriting of the accused can only be taken with the permission of the Court. The present situation is not one where the matter was before the Court. There is no bar to Investigating Agency taking the specimen handwriting of an accused in the course of investigation."
38. Thus, from the above detailed discussion, I have no hesitation in concluding that learned ACMM has committed a grave error in this regard by not relying on the Handwriting Expert Report. Ld. ACMM has refused to rely on the CFSL report on a plea that out of around 15 odd signatures and writings as "Jatin Rajpal", the Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 12/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Handwriting Expert could not connect four out of 15 with accused Ashok Kumar @ Bittu. It is a wrong way of appreciating the evidence, in so far as while appreciating the Expert Report all that has to be seen is as to which questioned exhibit tallied with the specimen given by the accused not the one which did not tally. It appears that Ld. Trial Court got the the very basics wrong.
39. Similarly I do not find any strength or logic in the plea of defence that no attempt was made by IO to connect the thumb impression available on the Passport Form with that of Ashok Kumar @ Bittoo. Ld. ACMM gave undue stress on this omission while passing the judgment of acquittal. A close look at the disclosure statement give by accused Ashok Kumar @ Bittoo clearly reveals that the thumb impression available on the Passport Form were actually not appended by him. In this backdrop , I see no reason as to why IO ought to have obtained specimen thumb impression as well.
40. Another interesting aspect which has come to the Court qua accused Ashok Kumar @ Bittoo in connection with the forged and fabricated Passport Form is that despite mentioning his disguised fake name as "Jatin Rajpal", accused Ashok Kumar @ Bittoo mentioned correct names of his parents namely father Sh. Bagwan Dass and mother Smt. Shakuntla Devi.
41. Further more , a defence story was built up by accused Ashok Kumar @ Bittoo to distance himself from his photograph available in the forged Passport Form. It was argued that the photographs were seized by the police during investigation and were appended on the Form to falsely implicate him in this case even though he had nothing to do with the same. The only logic show is that the photographs are only stappled and Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 13/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 not pasted on the Form at different places. I see absolutely no strength in this plea because all that the Form required is that the applicant has to " affix photograph". It is nowhere mandatory that the photograph ought to have been pasted. Multiple stappling of photograph at the appropriate place tantamount to correct affixation. Moreover, the plea of belated affixation of Ashok's photo on the forged Passport Form is nothing but an after thought in so far as no such suggestion was put to the IO or any other witness during the cross examination in the trial.
42. Another plea taken on behalf of accused is that IO did not collect the particulars of his original old expired Passport Form . I see no reasons as to why the old assumingly genuine Passport Documents should have been seized qua accused Ashok in this trial . The said earlier Passport Documents would have been of no aid to the prosecution in proving the charge in the matter in hand.
43. Another plea taken is that police ought to have collected documents to show previous criminal involvement of accused Ashok Kumar @ Bittoo to show the necessity to obtain a fake Passport. No doubt collection of the details of the criminal involvement would have further strengthened the prosecution case but the omission in this regard on the part of IO does not dilute the overwhelming evidence available against the accused Ashok Kumar @ Bittoo.
44. In case titled Ram Singh @Chhaju Vs. State of HP, 2010 (2) SCC 445 , Hon'ble Supreme Court held:
" Failure of the Investigating Agency can not be a ground to discredit the testimony of the victim . The victim had no control over the Investigating Agency and the negligence, if Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 14/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 any , of the Investigating Officer could not affect the credibility of the statement of PW."
45. In case titled C. Muniappn Vs. State of Tamilnadu, 2010 (4) RCR Criminal 268 , Hon'ble Supreme Court held :
"The defect in the investigation by itself can not be a ground for acquittal. In case of defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapse , carefully , find out whether the said evidence is reliable and as to whether such lapses affect the object of finding out the truth. The conclusion of trial in the case can not be allowed to depend solely on the probity of the investigation."
46. In case titled Kashinath Mondal Vs. State of West Bengal, 2012 VII AD (SC) 365 dated 31.7.2012 it has been observed by Hon'ble Supreme Court that :
"But, it is well settled that remissness and inefficiency of the Investigating Agency should be no ground to acquit a person if there is enough evidence on record to establish his guilt beyond reasonable doubt."
47. It is interesting to observe that during the course of trial in one of the bail bonds furnished by accused Ashok Kumar @ Bittoo on 25.6.1992, he has himself mentioned his name as "Ashok Kumar @ Jatin Rajpal @ Bittoo" . The fact that he has surname Rajpal is also evident from the written argument dated 14.8.2012 submitted on his behalf wherein he has been repeatedly referred to by his own Ld. Defence Counsel as Ashok Rajpal. It has been pointed out by Ld. Addl. PP that the disguised name adopted by accused Ashok Kumar i.e. "Jatin Rajpal" actually belonged to his own nephew.
48. As far as accused Gulshan Verma is concerned , as mentioned supra, the CFSL hand Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 15/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 writing report categorically connects him with the forged Passport. Also in his own Section 313 Cr.P.C. statement, accused Gulshan Verma has conceded that the columns of the forged Passport were filled up by him alone. As such as far as the technical evidence is concerned, the same not only stands proved against accused Gulshan but it also stands admitted by him . The only plea raised on his behalf is that he was working as an apprentice under a person and he used to assist that person in filling the Application Forms etc. It is interesting to observe here that this defence plea of being an Apprentice starts and concludes in the same line. There is a total unexplained silence qua the particular of the said "Person" with whom he was doing the claimed apprenticeship Defence is also silent qua the place or any location or any such shop or office of alleged place of working . Once it is argued on behalf of this accused that filling of a Form, like the forged and fabricated Passport Form in hand does not necessarily assign criminality to the person filling the Form it is duty of such person to provide necessary honest details of it. On this score , recourse has to be taken to Section 106 of the Evidence act. More so, on its illustration A. The Section is reproduced here under for ready reference.
49. Section 106 Evidence Act runs as under:
Section 106 Evidence Act: Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations : (a) When a person does an act with some intention other than that which the character and circumstance of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 16/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 ticket. The burden of proving that he had a ticket, is on him.
50. In case titled Murlidhar Vs. State of Rajasthan 2005 (2) Apex Criminal 373 , while referring to Section 106 Evidence Act Hon'ble Supreme Court held that :
"although burden of prove in criminal case is on prosecution but prosecution is not supposed to prove those facts which are especially within the knowledge of accused and it would be impossible , or at any rate disproportionately difficult for the prosecution to establish such facts."
51. In case titled Shambhu Vs. State AIR 1956 SC 404, it has been observed by Hon'ble Supreme Court that "Sec. 106 is designated to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
52. Plain reading of the illustration (a) reveals that in case accused Gulshan had any intention other than the conspiracy to arrange for a forged and fabricated Passport in a disguised name of Jatin Rajpal for accused Ashok Kumar, the onus was entirely upon him. Close scrutiny of Section 313 Cr.P.C. statement reveals that he has given totally evasive replies and denials and has not come forward with any explanation or any evidence proved by the prosecution .
53. It is a settled legal proposition that when an accused gives evasive reply to the evidence available on record and then his evasiveness of the replies itself become a circumstance against him.
Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 17/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012
54. In case titled Munna Kumar Upadhyayay @ Munna Upadhyaya Vs. State of Andhra Pradesh , 2012 V AD (SC) 373 it has been observed by Hon'ble Supreme Court that :
None of the accused, particularly accused no. 2 , offered any explanation during the recording of their statements under Section 313 Cr.P.C. not even disputed before that the material incriminating evidence was put to accused No.2, while his statement under Section 313 Cr.P.C. was recorded. Except for a vague denial, he stated nothing more If the accused gave incorrect or false answers during the course of his statement U/s 313 Cr.P.C. , the Court can draw an adverse inference against him - present case - we are of the considered opinion that the accused has not only failed to explain his conduct , in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers - Court not only draws an adverse inference , but such conduct of the accused would also tilt the case in favour of the prosecution.
55. In case titled Anand Mohan Vs. State of Bihar , 2012 VI AD (SC) 469, it has been observed by Hon'ble Supreme Court that :
".......If accused wanted the Court to believe that at the time of the incident he was in the Contessa car in the front of the procession and not at the spot, he should have taken this defence in his statement under Sectioin 313 Cr.P.C. and also produced reliable evidence in support of this defence. Section 103 of the Indian Evidence Act,1872 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
56. It is interesting to observe that not only no evidence was led by the accused Gulshan despite grant of opportunity but also no specific suggestion qua his defence story was given to either of the relevant PWs. Record reveals that deposition of PW19 Inspector Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 18/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Ram Phal has gone unchallenged from the side of accused Gulshan in so far as he has not cross examined this witness despite grant of opportunity.
57. As far as accused Sheodan Singh is concerned, the fact that the verification report of the fake Passport Verification Application Form was prepared by him is not disputed. This stands admitted not only during the trial , during cross examination of relevant PWs but this was also accepted by him in his Section 313 Cr.P.C. statement apart from his arguments during the hearing of this Appeal. The CFSL handwriting report also connects him with relevant documents which led to issuance of Fake Passport . It is argued on his behalf that the failure on the part of IO to seize the Fake Passport should go against the State . I see no strength in this plea in so far as according to the record , Passport could not be recovered from the custody of accused Ashok despite attempts as he had apparently hidden it with his some friends at an undisclosed location. Be that as it may , the sheer fact that the forged application form and supporting documents were duly available on record and but for the fake verification report prepared by accused Sheodan Singh under criminal conspiracy , no forged Passport would have been issued.
58. Another plea taken on his behalf is that the address verified by this accused was 1/11361, Subash Park , Shahdra, Delhi and during the verification , he recorded statements of two witnesses Raj Kumr and Shobha Ram of the locality. It is argued that prosecution has failed to trace and produce these two witnesses during the trial and this fact should go against the State. It is strange that such an argument is putforth in the facts and circumstances of this case. Rather this plea of defence Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 19/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 supports the Prosecution Case in so far as Prosecution has proved and establish on record through PW 2 Smt. Asha Kulshreshtha an actual resident of house no.1 /11361, Subash Park, that she and her family are in occupation of this address since 1983 and that accused Ashok Kumar @ Bittoo (Jatin Rajpal) has never resided there. She said that no one even came to her house for any Passport Verification. It is a writing on the wall that once the address furnished in Passport Verification Form was fake and a disguised name was used, the two witnesses claimed to have been examined by accused Sheodan Singh during Passport verification too were necessarily fake. Once the so called verification was done under a criminal conspiracy and fake names and identity were introduced, prosecution can not be held responsible for not being able to trace the non existent persons. Rather it was incumbent on accused ASI Sheodan to trace and examine those two persons in support of his plea that he had actually met both of them apart from accused Ashok at Subash Park house of PW2 Smt. Kulshrestha so as to show that he had no criminal nexus with other two accused.
59. In this regard the criminal and guilty mind of ASI Sheodan Singh is evident from the fact that he even approved the forged ration card to be a correct one, despite the fact that as per PW3 Chanderbhan , this ration card was not issued by the relevant circle of their Food and Supply Department. On the Police verification part, Ld. ACMM has mentioned illogical pleas that PW2 Smt. Asha Kulshrey ought to have brought her ration card to show that accused Ashok was not part of the ration card and also that she ought to have brought her original property document. I see no reason for all this. When accused Ashok Kumar was not claiming that he is or was a resident of 1/11361 Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 20/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Subash Park, why should the prosecution witness bring documents to prove negative of it. Once all the fake and forge documents were prepared, a hapless witness whose property's particulars have been misused to commit forgery, can not be hassled in the manner mentioned in the impugned judgment.
60. Overwhelming evidence beyond shadow of any doubt has come on record to show that after all the three accused succeeded in their criminal conspiracy to procure a fake Passport for accused Ashok Kumar @ Bitto in the name of Jatin Rajpal, he even traveled abroad to Hong Kong as is evident from his emigration card Ex.PW6/D & E.
61. In the light of aforesaid discussion, I have no hesitation in concluding that the impugned judgment of acquittal passed by Ld. ACMM can not be sustained either on facts or in law and same is accordingly set aside. Accused Ashok Kumar is convicted for commission of offence punishable U/s 420/468/471/120B IPC, accused Gulshan Verma and Sheodan Singh are both convicted for commission of offence punishable U/s 468/471/120B IPC . They all be taken in to custody and sent to J/c. They shall be heard separately on the point of sentence.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 18.8.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 21/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI ID No: 02401R0007112012 CA NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120 B IPC STATE Vs. 1. ASHOK KUMAR@ Bittu
2. GULSHAN VERMA
3. SHEODAN SINGH ORDER ON SENTENCE
1. Vide separate judgment on appeal dated 18.08.2012 preferred by state against the order of acquittal , accused Ashok Kumar was found guilty for commission of offence punishable U/s 420/468/471/120B IPC, accused Gulshan Verma and Sheodan Singh were found guilty for commission of offence punishable U/s 468/471/120B IPC and they were convicted accordingly.
2. I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Counsel Sh. Rajesh Dua for convict Ashok Kumar, Ld. Counsel Sh. Mukul Sharma for convict Gulshan Verma and Ld. Counsel Sh. Rakesh Srivastava for convict Sheodan Singh.
3. On the point of sentence it has been submitted by Ld. Addl. PP that convicts do not deserve any leniency in so far as they purposefully and designedly entered into a criminal conspiracy so as to procure passport in the fake name and identity.
4. On the contrary it is argued on behalf of convict Ashok that he is a married man having one daughter and that he is only earning member in his family. It is stated that he is Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 22/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 diabetic and has already faced trial since 1992. It is prayed that he may be ordered benefit of probation.
5. On behalf of convict Gulshan , it is submitted that he has three minor children besides his wife and widow mother . He too has prayed for benefit of probation. It is also nd argued on his behalf that by virtue of 2 proviso to Section 386 Cr.P.C. , in an appeal , the convict can be awarded sentence not more than three years , the maximum sentence a Magisterial Court could have imposed.
6. As far as convict Sheodan Singh is concerned, it is argued that he is aged 65 years and has now retired from Delhi Police. It is stated that he has clean antecedents and as such he may be given benefit of probation.
7. Convicts have relied on 2005 (3) JCC 1354 , 2006 (2) JCC 1188 and 2009 (3) JCC 1847 in order to stress that they be granted benefit of probation.
8. While appreciating the plea of the convicts for grant of probation primarily on a plea that they have faced trial since 1992 , this Court can not loose sight of the fact that all the three convicts were suitably well placed in their lives. There was no social or familial compulsion of any sort on either of them to indulge in what they did under the criminal conspiracy. Conspiracy between a public servant specially Police Officer of Special nd Branch and a man who thought of procuring a 2 Passport in a fake name only to fuel his appetite for foreign travel apart is appalling. The situation is further aggravated by joining of middle man who as per the prosecution was a conduit between them and all this, is quite a serious and distressing.
9. As the law stands , a Passport is the property of Government of India and is given to a Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 23/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Citizens of India so as to provide them an identity as to their sacred Right of Citizenship of India. Any endeavour on the part of any individual to fudge , temper , falsify or forge any such document, by implication is a very profound and critical offence in so far as not only usage of such a fake Passport would Internationally bring disrepute to the Nation but would also constitute a threat to our National Security. A right message deserves to be sent that any attempt fiddle with Security of the Nation or anything ancillary to it would not be tolerated at any cost and would result in serious consequences.
10.For the foregoing I am not inclined to grant benefit of probation to either of the convicts.
Moreso, the delay in conclusion of the trial is largely attributable to them. Better part of the delay occurred on account of their strategic absentism and they can not seek benefit of their own wrong.
11.In case titled Sevaka Perumal Vs State AIR 1991 SC 1463 it has been observed by Hon'ble Supreme Court that :
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society can not long endure under serious threats. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed."
12.In case titled Dhananjoy Chatterjee vs State (1994)2 SCC 220 it has been observed by Hon'ble Supreme Court that "The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 24/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 the defenceless and unprotected state of the victim. Imposition of appropriate punishment is manner in which the court responds to the society's cry for justice against criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment."
13.In the totality of circumstances, convict Ashok Kumar @ Ashok Rajpal @ Bitto is sentenced to undergo RI for three years U/s 420 IPC apart from fine of Rs.10,000/ I/D to undergo SI for three months. For offence punishable U/s 468 IPC , he is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months and for offence punishable U/s 471 IPC he is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months. So far as offence punishable U/s 120 B IPC coupled with above offences is concerned, he is sentenced to undergo RI for one year with fine of Rs.10,000/ I/D to undergo SI for three months. All these sentences shall run concurrently and benefit of Section 428 Cr.P.C. be granted to convict.
14. Convict Gulshan Verma is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months for commission of offence punishable U/s 468 IPC and for offence punishable U/s 471 IPC he is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months. So far as offence punishable U/s 120 B IPC coupled with above offences is concerned, he is sentenced to undergo RI for one year with fine of Rs.10,000/ I/D to undergo SI for three months. All these sentences shall run concurrently and benefit of Section 428 Cr.P.C. be granted Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 25/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 to convict.
15. Convict Sheodan Singh is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months for commission of offence punishable U/s 468 IPC and for offence punishable U/s 471 IPC he is sentenced to undergo RI for 3 years with fine of Rs. 10,000/ I/D to undergo SI for three months. So far as offence punishable U/s 120 B IPC coupled with above offences is concerned, he is sentenced to undergo RI for one year with fine of Rs.10,000/ I/D to undergo SI for three months. All these sentences shall run concurrently and benefit of Section 428 Cr.P.C. be granted to convict.
16.Warrants be prepared accordingly. Copy of judgment on appeal and order on sentence be supplied to each convict free of cost.
17.A prayer has been made for grant of bail to the convict U/s 389 Cr.P.C. Separate detailed submissions on the same heard . I have my reservation upon applicability of Section 389 Cr.P.C. in the situation in hand in so far as Section 389 Cr.P.C. talks of bail during pendency of appeal under Chapter 29 Cr.P.C. . Whereas against an order passed by an Appellate Court / Sessions Court in an appeal, Cr.P.C. does not provide nd for a 2 appeal and necessary recourse lies with Chapter 30 Cr.P.C. by preferring a revision. Hence prayer of bail is declined. File be consigned to RR. TCR be sent back with a copy of the order.
Announced and Dictated in open court : 23.8.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 26/ 26 CR NO: 02/2012 FIR NO: 120/92 PS I.P.ESTATE U/s 420/468/471/34/120B IPC DATED:18.08.2012 Order in Appeal State Vs. Ashok Kumar @ Bittu & ors. Page 27/ 26