Delhi District Court
State vs 1 Phanjoubam Ghanshyam Singh @ Romeo ... on 18 March, 2011
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST02) , DELHI.
Sessions Case Number: 230/1/2010
Unique ID Number: 02401R1205172006
State versus 1 Phanjoubam Ghanshyam Singh @ Romeo @Priyo
@ Michael S/o Late Sh. Bhorot Singh
R/o Wangkhei Konsam Leikai,
P.S. Porompat Imphal East,
Manipur.
2 Thounaojam Shyam Kumar Singh @ Sanayaima @
Sanayai S/o Th. Binoy Kumar
R/o Uripok Yambem Leikai, Imphal West,
Manipur.
3 Moirangthem Jayanta Kumar Singh @ Milan @
Iboyamima @ James S/o Mirangthem Ananda
Singh. R/o Wangkhei Keithel Asangbi,
P.S. Porompat Imphal East, Manipur.
FIR Number: 70/2006
Police Station: Special Cell
Under Sections: 419/468/120B of the Indian Penal Code,
18/19/20 Unlawful Activities &
3 & 9 of Official Secret Act.
Sessions Case Number: 230/1/2010 Page 1 of 45
Unique ID Number: 02401R1205172006
State versus Phanjoubam Ghanshyam Singh Etc.
Date of filing of the charge sheet before
the court of the Metropolitan Magistrate : 31.12.2006.
Date of receipt of file in this Court after committal : 01.03.2007.
Arguments concluded on : 05.03.2011
Date of Judgment :14.03.2011
Appearances: Sh. B.S. Kain, Additional Public Prosecutor
(Substitute) for the State.
Accused Phanjoubam Ghanshyam Singh @ Romeo
@Priyo @ Michael and Moirangthem Jayanta
Kumar Singh @ Milan @ Iboyamima @ James are
produced from Judicial Custody.
Accused Thounaojam Shyam Kumar Singh @
Sanayaima @ Sanayai is on interim bail.
Sh. V.K Ohri, counsel for accused persons namely
Accused Phanjoubam Ghanshyam Singh @ Romeo
@Priyo @ Michael and Moirangthem Jayanta
Kumar Singh @ Milan @ Iboyamima @ James
Sh. Ghanshyam Sharma, counsel for accused
Thounaojam Shyam Kumar Singh @ Sanayaima
@ Sanayai
Sessions Case Number: 230/1/2010 Page 2 of 45
Unique ID Number: 02401R1205172006
State versus Phanjoubam Ghanshyam Singh Etc.
JUDGMENT
The prosecution case in brief is that on 2.10.2006 at about 11 am an specific information was received that two terrorists of United National Liberation Front ( in short UNLF) were going to Kathmandu from IGI Airport, Delhi. One sympathizer of the organization was also with them. The information was recorded in DDR. A team of police officials was constituted under the supervision of Inspector Mohan Chand Sharma. The raiding party rushed to IGI Airport. There the police officials came to know that three passenger namely Maibam Milan Singh, Shyam Kumar and R.K. Romeo Singh were off loaded by the airline. All these three persons were then intercepted when they were coming out of the Airport. M.K. Singh and R.K. Romeo Singh were found in possession of fake identity cards apparently issued by the Forest Department, Government of Manipur Imphal. It was also revealed that on the basis of those fake identity cards, they were going to Nepal by Indian Airlines Flight Number IC813. These three persons were then brought to the office of Special Cell. They were interrogated. Their luggages were also checked. During interrogation, it was revealed that the actual name of M.Milan Singh was M.J.K. Singh. The real name of R.K. Romeo Singh was found to be P.G. Singh. The name of the third persons was revealed as Thounaujam Sessions Case Number: 230/1/2010 Page 3 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Shyam Kumar Singh ( hereinafter called as T.S.K. Singh). From the baggage of M.J.K. Singh , a pen drive was recovered. From the baggage of P.G. Singh one CD was recovered. The same were scrutinized. Accused T.S. K Singh was found to be involved in harbouring them. He had also aided them financially to carry out their unlawful activities. The articles were sealed. The accused were interrogated and their disclosure statements were recorded. After completion of investigation challan was filed.
The charge against the accused Moirangthern Jayanta Kumar Singh ( hereinafter called M.J.K. Singh), Phanjoubam Ghanshyam Singh ( hereinafter called as P.G. Singh) and Thaounaojam Shyam Kumar Singh ( hereinafter called as T.S.K. Singh) were framed for offence punishable u/s 18/19/20 of Unlawful Activities ( Prevention ) Act 1967 read with section 120B of the IPC. A separate charge u/s 120B/419/466/468/471 were also framed against the accused M.J.K. Singh and P.G. Singh.
It is alleged against that the accused M.J. K. Singh being a member of banned outfit UNLF and accused P.G. Singh being militant of schedule appended with the Unlawful Activities ( Prevention) Act, 1967 and being the member of such outfit UNLF have committed offence punishable u/s 20 of Unlawful Activities ( Prevention) Act 1967. Further before 2.10.2006 conspired , advocates, advises or knowingly facilitate commission of a terrorist act or an act preparatory to the commission of terrorist act and accused T.S.K. Singh also provided logistic and other Sessions Case Number: 230/1/2010 Page 4 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. support, inclusive of financial support to the banned terrorist outfit KYKL and UNLF, besides harbouring to the said M.J.K Singh and P.G. Singh and committed offence punishable u/s 18 & 19 of Unlawful Activities ( Prevention) Act 1967.
It is further alleged that on 2.10.2006 or before that agreed to do an illegal act in respect of obtaining, collecting article, documents or information and pursuant thereto accused M.J.K. Singh was found in possession of a pen drive containing information, which amounts to secret document, which was seized as per seizure memo mark A and accused P.G. Singh was found in possession of compact disc, containing information with regard to training camps strength of defence organization and their deployment etc. which was seized as per memo mark B, which may be useful to an enemy or which relates to a matter, the disclosure of which that it is likely to affect sovereignty and integrity of nation and accused T.S.K. Singh provided logistic, financial and other support in this regard, besides harbouring the others which was done in pursuance of the agreement and was done to commit offence punishable u/s 3 and 9 of the Official Secret Act 1923 and all the accused thus committed offence u/s 120B of the IPC.
Further it is alleged that on 2.10.2006 or before obtained collected documents and information which is intended to be directly or indirectly useful to an enemy or which relates to the matter the disclosure of which is likely to affect the sovereignty and integrity of Indian and accused Sessions Case Number: 230/1/2010 Page 5 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. M.J.K. Singh was found in possession of a pen drive containing information, which amounts to secret documents, which was seized as per seizure memo Mark A and accused P.G. Singh @ Romeo was found in possession of compact disc, containing,information with regard to training camps strength of defence organization and their deployment etc. which was seized as per memo mark B, which may be useful to an enemy or which relates to a matter that it is likely to affect sovereignty integrity of nation and accused T.S.K. Singh provided logistic and other support in this regard besides harbouring the others which was done in pursuance of their agreement and was done to commit offence punishable u/s 3 and 9 of the Official Secret Act, 1923.
It is further alleged against the accused M.J. K. Singh and P.G. Singh that on 2.10.2006 at about 11 am at IGI Airport both of them represented and personated themselves as M.Milan Singh and R.K. Romeo Singh respectively and having I Card for the same identity by which they had fraudulently and dishonestly intended to use it as genuine for the purpose of cheating and fraudulently used the said identity card as genuine and thereby both of said accused persons have committed offence punishable u/s 419/466/474/468/471 IPC.
The prosecution in support it its case, examined 17 witnesses which includes PW1 ASI Paramjeet Singh who proved the register No. 19 as per the record the CD and pen drive allegedly seized from the accused persons and in his cross examination admitted that register No. 19 does Sessions Case Number: 230/1/2010 Page 6 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. not found mention about the section 3 and 9 of the Official Secret Act and same was found mention on the road certificate Ex. PW1/C. The road certificate were used to send three hard disks of 40 GB but they were pertaining to different cases FIR No. 45/06 & 54/06. It is also admitted that the baggage checked in by the airline will have a tag mention the ticket no. and the name of the person but the baggage seized in this case did not have any ticket number and name of the passenger.
PW2 Inspector Ramesh Lamba stated in his examination the story as narrated in the preceding para of the judgment and also proved the documents prepared during the course of investigation and during the examination court observed that in memo Ex. PW2/G nine passport size colour photographs have been mentioned but the same were not discovered in the green color trolley Bag P3. He did not call any person either from the residential colony or market or from the offices to join the raid while leading to IGI Airport. He went to IGI Airport in a private vehicle. The Govt. vehicle was available but the same was not taken for the raid as such no corresponding entry was made in the log book of government vehicles. He further admitted that he had not gone to any counter of Indian Airlines of checking point to verify that the accused persons were the persons who had actually checked on the airport on the ticket seized by them. This clearly means that there were no baggage at the time of detention of the accused persons and the baggage containing the incriminating document were planted subsequently by police. It is Sessions Case Number: 230/1/2010 Page 7 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. further stated by witness that he cannot give any reason why the hard copy from the CD was not obtained. As such witness could not furnish any reason for not taking the print out of the contents of the CD especially when the contents of the pen drive allegedly recovered from accused persons were taken on a hard copy. It is further proved by the fact that name R.K. Singh and Romeo Singh are only aliases of the same person and this witness is silent about the effort to ascertain the identity from the bank or Income Tax Authority. PW2 further stated that he had told names and aliases names of these accused in his statement to the IO, however in statement Ex. PW2/DA where the name with alias name not recorded.
PW3 ASI Raj Singh is the Duty Officer who proved the copy of FIR No. 70/06 Ex. PW3/A on the basis of rukka brought by Insp. Ramesh Lamba. PW3 ASI Raj Singh admitted that that on 2.10.2006 at about 3.15 pm accused persons were brought to P.S. Special Cell and PW2 Insp. Ramesh Lamba handed over the rukka to this witness. The FIR against the accused persons was recorded thereafter.
PW4 SI Ravinder Kumar Tyagi stated that he and Insp. Ramesh Lamba and Insp. Mohan Chand in charge of the raiding party did not record statement of any airlines staff about the check in or off loading of the accused persons on that day. No statement was recorded of the airlines staff about the check in luggage of the accused persons on that day. As per the statement of PW4, SI Ravinder Kumar Tyagi, nothing incriminating was found concerning accused T. Shyam Kumar Singh Sessions Case Number: 230/1/2010 Page 8 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. from the Pen Drive and C.D allegedly recovered from the co accused persons. PW4 Ravinder Kumar Tyagi has admitted in his statement that during investigation, he came to know that the accused T.S.K. Singh is a politician, contractor and social worker and he contested the Assembly Election. In his cross examination he admitted that Insp. Mohan Chand Sharma has briefed them about the information received from Intelligence Agency. No memo was prepared by Insp. Mohan Chand Sharma regarding the information from Intelligence Agency in his presence. It is not in his knowledge whether Insp. M.C. Sharma sent a requisition to the neighbouring office which are having central government and government offices but he did not call anybody personally. PW4 further admitted that nobody was joined from the public at the time of interception at the airport and no incriminating articles was found from the possession of accused T.S.K. Singh at the time of interception.
PW5 Rajeev Sharma was working as an Accountant in Hotel Swisston Palace, proved the entry in hotel register from the period 31.3.2006 till 11.09.2006. he deposed that as per record on 24.8.2006 at about 8.45 pm, T.Shyam Kumar Singh alongwith four other persons, two males and two females had come to the hotel and they were given three rooms number 205,303 and 304 and left the said hotel on 28.8.2006 at 3.30 pm alongwith his family members.
PW7 Shantanu Bhattacharya is the witness regarding the verification of the tickets of the co accused. He admitted in cross Sessions Case Number: 230/1/2010 Page 9 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. examination that airlines issued blank tickets to its authorized agents. He had not furnished any record to the police about the serial number of tickets or bunch of tickets issued to agents by the airlines or in relation to the ticket. PW7 further admitted that as per the procedure, all the agents who sell tickets on behalf of the airlines are known as Passenger Sales Agents and they submit the records and the payments of the tickets sold by them fortnightly to the airlines alongwith the record of sales. He cannot say whether the tickets Ex. PW7/X1, PW7/Y1 and PW7/Z1 were sold in one sale or individually, at one time or at different time. He further admitted that he has no personal knowledge whosoever about the documents exhibited by him except the contents of the letter Ex. PW7/B which was signed by him. Therefore, from the testimony of this witness it is not established that the air tickets in question were purchased at the same time or at the different time, who purchased them and who made the payment. As this witness has admitted that the tickets are sold by the agents and they remit the payment to the airlines fortnightly.
PW8 Shekhar Sinha, Senior Traffic Superintendent, IGI Airport Stated that he was never called by the police in this case. No enquiry was made from his by the police nor his statement was recorded and he has no personal knowledge of this case.
PW9 Yashpal is the witness from Hotel Ahluwalia Palace, Bank Street, Karol Bagh, who testified that on 1.10.2006 at about 11.55 pm T.S.K. Singh alongwith his family members and friends came to the hotel Sessions Case Number: 230/1/2010 Page 10 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. and they were given seven rooms and they left the hotel on 4.10.2006. In his cross examination PW9 admitted that the checked in entry in the register was made on 1.10.2006 and the checked out was made on 4.10.2006 which shows that T.S.K. Singh alongwith his family and companions stayed in the hotel for four days. PW9 further stated that the rooms number 103,105,106 and 201 were shown to have been allotted to T.S.K. Singh, were allotted between the period 1.10.2006 to 4.10.2006 to others and for this he could not give any explanation to it and as such it shows that the record of the hotel was also tampered with.
PW10 Vinay Kumar was working as a Deputy Secretary Home, Govt. of NCT of Delhi and proved vide letter dated 11.12.2006 of DCP Head Quarters, the matter was processed and placed before the Lt. Governor of Delhi for his decision vide Ex. PW10/A. The testimony of this witness is of no help to the prosecution as all the accused have already been discharged by the Ld. ASJ u/s 121/121A/122/123 IPC for which sanction is required u/s 196 Cr.P.C before launching the prosecution.
PW11 K.R. Mehndiratta, , Assistant Director Department of Consumer Affairs, Govt. of NCT, Delhi testified that the draft chargesheet of case FIR No. 70/2006 of P.S. Special Cell, Lodhi Colony and other material were placed before him for obtaining the sanction/committing the offence punishable under section 18/19/20 of the Unlawful Activities ( Prevention ) Amendment Act, 2004 apart from the Sessions Case Number: 230/1/2010 Page 11 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. other offences. In cross examination, PW11 stated that the request was accompanying the documents as per list enclosed. They received the request from DCP Special Cell addressed to DCP Head Quarters, as an enclosure to the request for grant of sanction. He had not seen the original letter of request of DCP, Special Cell. He had conveyed the order on the basis of approval received from Hon'ble Lt. Governor of Delhi. The approval was received on 27.12.2006 as per the record brought by him. He was not personally present at the time when the file was presented before the Lt. Governor of Delhi. He conveyed the sanction on 29.12.2006. In his cross examination he denied that the material placed before Hon'ble Lt. Governor was not disclosing any incriminating evidence against accused T.S.K. Singh. Sanction order supposed not containing any specific incriminating evidence against a particular accused. Since the order was based on the material in the record. Since the sanction was granted on the basis of documents. He cannot name any document or statement which may be disclosing incriminating evidence against the accused. He denied that the sanction was granted by the Lt. Governor in routine manner or the sanction was accorded without appreciation of record or facts of the case.
Under section 17 of The Unlawful Activities ( Prevention) Act, 1967, defines that No court shall take cognizance of any offence punishable under this Act except with the previous sanction of the Central Government or any officer authorized by the Central Government in this Sessions Case Number: 230/1/2010 Page 12 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. behalf and under section 19 of this Act, the Central Government may, by notification int he Official Gazette, direct that all or any of the powers which may be exercised by it under section 7 or 8 of both, shall, in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised also by any Statement Government.
Insp. M.C. Sharma who received the secret information reportedly expired, however during the course of investigation he has not cited as witness nor his statement u/s 161 Cr.P.C was recorded. There is no explanation given by IO ACP Sanjeev Kumar Yadav as to why this witness was not cited in the list of witnesses or as to why his statement was not recorded. During the evidence of the prosecution witnesses it is also admitted that no evidence could be collected against T. Shyam Kumar Singh to the effect that he was trying to help the two high ranking banned organization i.e. UNLF to established their base in Delhi. He further admitted that no evidence could be collected during investigation against the accused that he assisted financially the banned organization or the other co accused persons. He further admitted that no separate evidence was collected regarding harbouring given by the accused to the other accused persons. PW17 ACP Sanjeev Kumar Yadav also admitted that the I card which was recovered from accused T. Shyam Kumar Singh was genuine on verification and that no recovery of any discovery of fact was effected pursuant to the disclosure statement of the accused T.S.K. Singh.
Sessions Case Number: 230/1/2010 Page 13 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. PW12 Inspector Puyum Ranbir Singh, Special Cell of Imphal District who stated that he assisted the Investigating Officer ACP Sanjeev Kumar Yadav in the investigation. He further stated that the statement of the accused T.S.K. Singh recorded by him during the investigation is not on judicial file. He further admitted on being shown the certified copy of an order of the court in case FIR No. 284(10)/2004, Imphal Police Station that accused T.S.K. Singh has been discharged in this case.
PW13 K.C. Karlupia, Assistant Director I.B. Testified the visit of the accused T.S.K. Singh to Kathmandu from Kolkatta and his return from Kathmandu to Delhi. There is nothing int he testimony of this witness whether accused T.S.K. Singh was accompanied by his family member or else.
Criminal conspiracy cannot be inferred from literature and correspondence which advocate anti social activities unless such writings establish a ink between accused and accused so as to involve the entire group in a charge of criminal conspiracy..
Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and times without a reasonable link. Suspicion, however strong, cannot take the place of legal proof. The mere circumstances that the three accused appellants were caught together for ticket less traveling, presumably so that this circumstance might serve as a plea of alibi , cannot lead to the inference that they had hatched the conspiracy to Sessions Case Number: 230/1/2010 Page 14 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. commit multiple murders as observed in a case titled as State Vs Moti Ram Air 1990 SC 1709.
In Parliament attack case, appellant Afzal was proved to be a partner in the conspired crime of enormous gravity. The circumstance clearly established that he was associated with the deceased terrorist in almost every act done by them in order to achieve the objective of attacking the Parliament House. His conduct and actions antecedent contemporaneous and subsequent, all pointed to his guilt and were only consistent with his involvement in the conspiracy to commit terrorist acts. The conspiracy to commit the offence of murder in the course of execution of conspiracy was well within the scope of conspiracy to which appellant Afzal was a party. Therefore, he was held liable to be punished under section 120B read with section 302 with sentence of death.
Mere association, however, strong cannot make the members, members of the conspiracy without more. In case of assassination of former Prime Minister of India Rajiv Gandhi, wireless message showing that only main accused, conspirator were knowing about the object of conspiracy. Co accused in his confession said that he has a strong suspicion that the target of the accused persons was Mr. Rajiv Gandhi. The court held that it would not make him a member of conspiracy. Mere fact that the main accused sent message about arrest of accused persons held not sufficient to draw an inference of conspiracy against them as Sessions Case Number: 230/1/2010 Page 15 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. observed in a case titled as State Vs Nalini AIR 1999 SC 2640.
The Privy Counsel in a case titled as Daniel Youth V King AIR 1945 PC 140 warned that in a joint trial, care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. In Nalini case, Hon'ble Mr. Justice Wadhwa pointed out the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. It was observed that there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.
In case titled as K.R. Purushothaman V. State of Kerala AIR 2006 Supreme Court 35, where in it has been observed that in Major EG Barsay V. State of Bombay, AIR 1961 SC 1762, Subba Rao. J. Speaking for the Court has said. The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all he parties should agree to do a single illegal act. It may comprise the commission of a number of acts.
In another case titled as L.K. Jain Vs. The State, Delhi High Sessions Case Number: 230/1/2010 Page 16 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Court 2006 (1) RCR ( Criminal) wherein it has been observed that he offence of criminal conspiracy is defined in section 120A IPC. The gist of the offence of criminal conspiracy is an agreement to break the law although a formal agreement of the parties concerned is not essential to the formation of a criminal conspiracy but it is also well settled that a conspiracy consists not merely in the intension of two or more persons, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. Mere evidence of association is not sufficient to lead to the inference of conspiracy. True, it is very rare that one can lay hand on direct evidence of conspiracy because the conspiracy is generally hatched between two or more persons in secrecy and at time and place which may not be easily detected. More often it is the circumstantial evidence which is pressed in service to establish the guilt of criminal conspiracy and based on such circumstances an inference is raised in regard to an agreement between two or more persons as talked of in the section.
In another case titled as V.C. Shukla , Sanjay Gandhi Vs. Delhi Administration (1980) 2 Supreme Court Cases 665, wherein it has been observed that The prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. In the present case it is difficult to find any acceptable evidence of any conspiracy. Even taking the main parts of the prosecution case at their face value, no Sessions Case Number: 230/1/2010 Page 17 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. connection has been proved with the destruction of the film and the two appellants.
Further in another case titled as Arup Bhuyan Vs. State of Assam Supreme Court of India Criminal Appeal No. 889, 2007 Hon'ble Mr. Justice Markendey Katju and Hon'ble Ms. Justice Gyan Sudha Mishra has held that In our opinion, Section 3 (5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.
PW17 ACP Sanjeev Kumar Yadav is the Investigating Officer has specifically stated in cross examination that no evidence could be collected against T.S.K. Singh to the effect that he was trying to help the two high ranking banned organization i.e. UNLF to established their base in Delhi. Further admitted that no separate evidence collected regarding harbouring given by the accused T.S.K. Singh to the other co accused persons. There is no evidence on record to show that the accused persons had any intention to base camp at Delhi. There is no evidence on record to prove against the accused T.S. K. Singh that he has given financial assistance or help in provoke the unlawful activity either in Manipur or in the territory of India. Therefore, in view of the ratio of the aforesaid judgments and material on record. It has been held that the Sessions Case Number: 230/1/2010 Page 18 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. prosecution failed to prove the guilt of the accused persons for offence punishable u/s 18/19/20 of Unlawful Activities ( Prevention) Act 1967 read with section 120B of IPC as there is no oral and documentary evidence placed on record prove that the member of UNLF are doing any illegal activities or any financial assistance or any kind of assistance to the banned organization to establish their base in Delhi.
So far as with respect to the offence punishable u/s 3/9 of the Official Secret, PW14 Lt. Col. P. Sreeram, Eastern Command Head Quarter Kolkata stated that the opinion mentioned in his letter Ex. PW14/A was prepared and given to him by Superior Colonel intelligence and he had signed this covering letter on receipt of opinion. He has not seen any of the page 1 to 6 documents, enumerated at point X in Ex. PW14/A prior to forwarding the letter Ex. PW14/A to the addressee. The witness has been shown two bunches hard typed copies of papers, one set of them is bearing Serial No. 40 to 55 titled Operation, all clear launch against the revolutionary parties of Manipur since 16.9.2004 and another bunch of paper is bearing serial No. 49 to 55 under the title Translation of Manipuri language from page 49 to 55. The witness on seeing the said documents stated that he never seen the bunch of papers being shown to him and seen the same first time in the court. The opinion given by Colonel Intelligence was sent to Military Intelligence, the opinion is not on the judicial file. In cross examination PW14 Lt. Col. P. Sessions Case Number: 230/1/2010 Page 19 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Sreeram stated that all the documents received in their branch and will be stamped at the back showing branch and the date and file movement. It is further admitted that two bunches of paper shown to him today in court do not bear any stamp/date overleaf of any paper reflecting its receipt in their department. There is no acknowledgment on any paper overleaf of two bunches of papers seen by him in court alike Ex. PW14/A overleaf point X by Military Intelligence. He have no personal knowledge of the case and he disposed on the basis documents seen in the court. As such PW 14 Lt. Col. P. Sreeram, categorically reject the ' secret documents' shown to him by saying that he never seen the bunch of papers being shown to him today. He see the bunches of papers today first time in the court. Therefore, the testimony of alleged secret documents are being under his opinion as expert or the official whosoever has given the opinion have presumed the relevant document is not placed before the competent authority nor received in their office, he has time to time saw the alleged secret documents, on the basis of which the opinion was sought not applied his mind while granting expert opinion.
The opinion is given by the Superior Officer as per the deposition of PW 14 Lt. Col. P. Sreeram, the Superior officer who given the opinion is beyond the control. The person who given the opinion is not cited as witness nor turned to depose in the court.
PW16 Virender Kumar stated that he was working as Under Sessions Case Number: 230/1/2010 Page 20 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Secretary to the Govt. of India Ministry of Home Affairs, North Block, New Delhi and in terms of the provisions of Sub Section 3 of Section 13 of the Officials Secret Act, he convey the orders, on behalf of the his Excellence President of India, the authorization to Sh. Alok Kumar, Deputy Commissioner of police of Special Cell to make a complaint in this aspect in the court of competent jurisdiction. The order Ex. PW16/A was sent to Principal of Secretary Home and a copy to Sh. Alok Kumar, DCP, by forwarding letter under his signatures, the letter is Ex. PW16/B. In his cross examination it is admitted that the documents were in English language and other regional language. He did not get the documents in regional language translated into English and he was not conversant with the regional language. He did not take the help of any person conversant with the regional language to make the opinion regarding the nature of the documents.
In a prosecution for an offence of spying under section 3 of the Act, it is necessary to prove that the accused acted for a purpose prejudicial to the safety or interests of the State. In certain cases of spying, however, where the offence is punishable with imprisonment for a term which may extend to fourteen years, it has been provided that it would not be necessary to prove that the accused was guilty of any particular act tending to show such a purpose, if from the circumstances of the case or the conduct of the accused or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety Sessions Case Number: 230/1/2010 Page 21 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. or interests of the State.
Section 3 of the Indian Official Secrets Act defined as, if any person for any purpose prejudicial to the safety or interests of the State:
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass words, or any sketch, plan, model, article or not or other document of information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter, the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States.
On a prosecution for an offence punishable under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State and notwithstanding that no such act is proved against them they may be convicted if, from the circumstances of the case or their conduct or their known character as proved, it appears that the Sessions Case Number: 230/1/2010 Page 22 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. purpose was a purpose prejudicial to the safety or interests of the State and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place or relating to anything in such a place or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority and from the circumstances of the case or their conduct or their known character as proved it appears that their purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan model article, note, document obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
In a case under section 3 of the O.S. Act, lays down a rule of presumption and not of evidence. It does not dilute the degree of proof. The prosecution need not prove any particular act of the accused and it entitles the court to convict an accused if from the proved circumstances, if the purpose was prejudicial to the interest of the State. It is not necessary that the information sent should be secret so as to constitute offence under section 3 of the Act. Even an information which may not be secret but which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign state or useful to an enemy is an offence under section 3 of the Act.
In case titled as 1972 Raj LW 675 (695) (DB), it was held that the Sessions Case Number: 230/1/2010 Page 23 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. presumption under this section cannot be raised simply because the accused had an access to the office from where the plan was secreted and it was traced out with a person with whom accused was connected.
In case titled as 1991 Raj Cri C 299 (304) it was held that when the contents of the letter allegedly recovered from the house of accused was not of the value to be used for planning sabotage in case of hostilities breaking out in that area to which the paper relates, then the conviction of the accused under section 3 read with section 9 and under section 120 B of IPC would not be proper.
A complaint under 13(3) is not an ingredient of an offence under section 3(1) (c) but is a matter that squarely falls in the relation of procedure to be followed in the trial of the offence. Section 13(3) namely the condition precedent for taking cognizance of an offence except upon complaint from specified officer applies only when the cognizance of an offence is to be taken in Official Secrets Act. The mere fact that by legal fiction the offence under the Official Secrets Act is offence under the Army Act does not automatically incorporate section 13(3) of Official Secrets Act, relating to procedural law into the Army Act. Authorization under section 13(3) of the Act need not be signed by the President, the officer executing the authority must, however, specify in the order that it is done by virtue of the authority so vested in him and that he is acting for and on behalf of the government. Valid complaint is a condition precedent for taking cognizance. Word complaint in the context cannot Sessions Case Number: 230/1/2010 Page 24 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. be given an elastic meaning so as to cover a charge sheet or report submitted by the police officials.
In case titled as G.D. Mariswamy Vs State of Karnataka, 2004 Cri LJ 3584, ILR 2004 Kar 3316, it was held that nonexamination of the investigating officer does not take away the case of the prosecution. But in the offences under the Prevention of Corruption Act, the case itself starts from the Investigating Officer by preparing the entrustment mahazar and ends after the trap is completed by preparing the trap mahazar. In such circumstances examination of the Investigating Officer is just and necessary for proper adjudication of the case and in the interest of justice In case titled as Moti Sah Vs State of Bihar, 1997 (1) B.L.J. 294 at p. 295, it was held that the cognizance on the basis of carbon copy not permissible. The secondary evidence evidence can be led only under certain conditions specified under Section 65 of the Evidence Act, 1872.
On perusal of the provisions of the Act will indicate that it is essentially concerned with the security of the country and for this purpose, therefore, lays down stringent provisions in relation to all matters that come within the compass of the definition of the official Secrets Act. That the Act also takes into account the possession of documents or material that may be associated with matters of defence or other secrets of the State is selfevidence and the Act also makes a very Sessions Case Number: 230/1/2010 Page 25 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. clearly mention of the fact that if a person obtains such material for a purpose prejudicial to safety or interest of the State or if a person discloses such material to persons or agents in such manner as the safety, interest or security of the State may be prejudiced, the law will deal with him very stringently as provided for in this Act. A general reference to the scheme of the Act has been adverted to by him for the reason that the gravamen of the charge against the accused in this proceedings relates to his having allegedly obtained and allegedly having been found in possession of material of official Secrets. This alone is insufficient for a charge under the Official Secrets Act because the law requires that such acts must necessarily be accompanied by attempts at disclosing or disseminating such material to unauthorized persons who, in the Act, have been referred to as 'foreign agents'. In short, it is very essential for the safety and security of any country that stringent provision be made in respect of any act or attempt that may endanger the safety or interest of the country.
The requirement as to the existence of sanction cannot be given a narrow interpretation namely that once cognizance of an offence is taken, the existence of the sanction becomes irrelevant. In a way, this amounts to invoking hypallage logic if cognizance itself cannot be taken for the absence of sanction. Taking cognizance of an offence by whatever means cannot justify the existence of sanction. In fact and strictly speaking, if there did not exist any valid sanction, it cannot be said that the cognizance Sessions Case Number: 230/1/2010 Page 26 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. was validly taken. Taking of cognizance of an offence by itself cannot cure the defect of the sanction.
In case titled as State of Maharashtra Vs. Dr. B.K. Subbarao and another 1993 CRI.L.J. 2984, wherein it has been observed that Another head of challenge which is common to both the authorization letter is that a reading of a relevant provisions of the Official Secret Act requires that the appropriate Government, namely, the Central Government is required to authorize the prosecution. An objection was raised by Dr. Subbarao, relying on the provisions of Art. 77 of the Constitution, that where an action requires sanction of the appropriate Government and if such authorisation is produced , it must prime facie disclose that it is that authorisation issued by that officer for an on behalf of the concerned Government. Dr. Subbarao seeks to draw a distinction between the authorisation issued by the officer of the department and between the authorisation of the aforesaid type because he contends that if the authorisation is merely signed by the officer of a particular department that at the highest the Court would be justified in holding that he has granted the authorisation on his behalf or on behalf of the department which he represents. Unless it is made specific in the authorisation that it has been issued for and on behalf of the Government which the officer represents , according to Dr. Subbarao a Court would not be justified in holding that the authorisation has come from the Government. Counting this submission pointed out that if one is to Sessions Case Number: 230/1/2010 Page 27 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. regard the head of the Central Government as the President of India, it would be absurd to expect that every authorisation letter will have to be signed by the President. He submitted that it is for this reason that under the rules of business powers are delegated to different officers who, after obtaining the requisite Government approval, accord letters of sanction or authorisation. To this extent , the submission is correct because both the Central Government and the State Government under the rules of business do function and are required to function in this manner. It is, however necessary to take note of the fact that in all those cases where the officer is exercising the authority of the Government, it is specified in the order that it is done by virtue of the authority so vested in hims and furthermore, that he is acting for an on behalf of the Government concerned. In the absence of these two averments, neither of which is present int he authorisation letter, it would be impossible to hold that either of these two authorisation letters passes the test of legal validity.
In the instant case PW14 Lt. Col. P. Sreeram stated that he has never seen bunch of paper being shown to him which does not bear any stamp/date overleaf of any paper reflecting its receipt in their department. There is no acknowledgment on any paper overleaf of two bunches of papers seen by him in court like Ex. PW14/A. PW16 Virender Kumar who proved the sanction and authorization of Sh. Alok Kumar, DCP, Special Cell and his Excellence President of India but Alok Kumar, DCP has not cited as witness nor prayed to prove the sanction u/s 13 of the Sessions Case Number: 230/1/2010 Page 28 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Official Secret Act. The documents which are alleged to be recovered are in regional language and same was not translated into English and PW16 Virender Kumar stated that he could not say as to what is written in these documents. In these circumstances testimony of both the witnesses does not inspire confidence. Hence the guilt of the accused u/s 3 & 9 of Official Secret Act is not proved on record.
So far as with respect to the charges u/s 419/466/468/471 IPC against the accused M.J.K. Singh and P.G. Singh. Offence u/s 419 IPC states that whosoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
The prosecution may prove that the accused cheated complainant and did so by pretending to be some other person or by knowingly substituting one person for another; or by representing that he, or some other person, is a person other than the person he really is. When the accused, through only a nurse, had styled herself as a 'doctor' competent to treat patients, even if she had pretended to be a doctor, through not really a doctor, she cannot be convicted for cheating by personation under section 419 IPC. A charge should be framed in relation to the person cheated.
Further illustrated that where the accused personated real owner of property for buying stamp paper and executing sale deed, a charge under section 416 and 419 was framed, the charge through correct with Sessions Case Number: 230/1/2010 Page 29 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. reference to stamp vendor and sub registrar it was incorrect with reference to the real owner.
PW6 S. Singsit Principal Chief Conservative of Forest, Government of Manipur, Imphal has brought the summoned record pertaining to two identity cards issued by Deputy Conservative of Forest Manipur and register forest contractors identity cards, he verified the same on record and seen his reply Ex. PW6/A and deposed that as per recorded Sl. no. 239 the identity cards was issued in the name of Y.K. Shimray R/o Nungshong Khunou village Ukhrul District having corresponding photographs of the applicant in whose favour the identity card was issued. The identity card Ex. P5 was not issued by Deputy Conservator of Forest Manipur and as per register brought by him at Sl. No. 245 the identity card was issued in the name of Ch. Dinachandra Singh, RMC Road. He has seen the identity card Ex. P18 of Serial No. 245 for affirming its genuineness, to which he stated that this identity card was not issued by Deputy Conservator of Forest, Manipur. In cross examination stated that he did not hold any inquiry nor ordered to investigate how and where the identity cards Ex. P5 and Ex. P18 were prepared or forged. He have not passed any instructions or ordered directing that forger of identity cards be brought to books as it was a serious security concern. He had not informed the police and local authority about the forged identity cards Ex. P5 and Ex. P18 was prepared by police/intelligence bureau in order to frame the accused Sessions Case Number: 230/1/2010 Page 30 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. persons present in the court and nor the matter was investigated by him nor any action was taken by him.
PW2 Inspector Ramesh Lamba, PW4 SI Ravinder Kumar Tyagi and other member of the raiding party have denied to be planted the identity cards upon the accused persons or falsely implication of accused persons in this case. The accused M.J. K. Singh and P.G. Singh were also examined u/s 313 Cr.P.C and when question put to them that they were traveling on fake identity cards issued by Department of Forest , Manipur, they denied the same as incorrect. It is alleged that accused persons stated that identity cards has been planted on the accused persons but accused persons in their statement recorded u/s 313 Cr.P.C contrary to it, denied the same as incorrect. The accused persons were sailing in two different boats by taking two different plea/stories and has not been able to prove in their defence whether the identify cards have been planted upon them or the same has not been recovered from their possession. The accused persons namely M.J.K. Singh and P.G. Singh were apprehended alongwith identity cards which was not in the real name and the same has been verified from the deposition of PW6 S. Singsit. The offence u/s 416 defines cheating by personation and fact that the identity card Ex. P5 and P18 were recovered with air travel tickets in the fake name and both the accused boarded on the fake name and produced the fake identity cards by personating them with fake name . Hence the prosecution has been proved the ingredients of offence Sessions Case Number: 230/1/2010 Page 31 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. u/s 419 IPC against the accused P.G. Singh and M.J.K. Singh.
Now so far as with respect to the charges for offence punishable u/s 466/468/471/474 IPC read with section 120B against the accused P.G. Singh and M.J.K Singh, it was alleged that both the accused are the member of a banned out fit agreed to conspirator to commit illegal act and beside said agreement also acted upon pursuant to such agreement to commit offence describing themselves as M. Milan Singh and R.K. Romeo Singh and had fraudulently and dishonestly intended to use it as genuine and knowing to be that said documents is forged documents. To this effect the prosecution has examined PW6 S. Singsit, Principal Chief Conservative of Forest Government of Manipur, Imphal, who have been shown the identity cards Ex. P5 at Sl. No. 239 and Ex. P18 at Serial No. 245. In cross examination, it has been stated that he did not hold any inquiry nor ordered to investigate how and where the identity cards were prepared or forged. He has not passed any instruction, order or direction that forger of identity cards be brought to books as it was a serious security concern.
PW17 ACP Sanjeev Kumar Yadav, Investigating Officer stated that he did not verify the facts for invoking Unlawful Activity Act or that the accused persons are involved in other FIR or that the accused persons have arrived at Delhi from Manipur. He also did not verify the fact whether the accused persons have booked tickets personally through ticket agency to travel Kathmandu or that they made payment to the travel Sessions Case Number: 230/1/2010 Page 32 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. agency and what was the mode of payment. He did not investigate the facts for obtaining the handwriting of the accused persons whether the accused persons have forged the identity cards or could not give any reason for the same. It is also admitted fact that Ex. PW6/C is a identity card in which no sign or name is mentioned nor it contained any photographs but it contained the signatures of Chief Conservator of Forest of Manipur. Investigating Officer Sajeev Kumar Yadav, ACP did not verify the fact about the accused persons stayed in the hotel from the hotel staff nor he can give any reason for the same. He did not personally made any recovery from the accused persons. He did not informed any authority about the possession of arms and ammunition. It is also admitted that the documents mark A and C did not bear the name, signatures and the stamp of the officials who prepared the said documents. It is also admitted that no evidence could be collected against accused T. Shyam Kumar to the effect that he was trying to help the two high ranking banned organization i.e. UNLF etc. No evidence could be collected during investigation against accused that he assisted financially the banned organization or the other co accused persons. No separate evidence was collected regarding harbouring given by the accused to the other accused persons. He did not verify regarding the deposition of amount in the account of accused, as mentioned in the handing over and seizure memo Ex. PW2/J. It is correct that at page No. 291 the document which has been marked B there is no mentioning Sessions Case Number: 230/1/2010 Page 33 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. regarding the person who prepared the documents and it does not bear any stamp or signatures. It is denied that documents mark B recovered from accused T.S.K. Singh is false and fabricated document and the same has been prepared to falsely implicate the accused in the present case.
For the purpose of proving the aforesaid charges the prosecution has to prove that the forgery of the document is possible in the event that the accused persons themselves are not author and signatory of the documents. There is no such material on record collected during the course of investigation that any signatures or handwriting of the accused persons were obtained or sent to the FSL for comparison with the fake identity card. PW6 official concerned from Conservative Department, Manipuri has stated that the document i.e. identity cards Ex. P5 and P18 are not issued from their Department. He received the copy of the alleged fake identity cards but he has not made any complaint to the police or any authority that the fake identity cards are used and registered by him after coming to know about the fake identity cards nor hold any inquiry in order to investigate as to how and who prepared the alleged identity cards Ex. P5 and P18 and same were forged one.
The Investigating Officer PW 17 ACP Sanjeev Kumar Yadav has not made any investigation as to who and how the forgery has been committed on both the identity cards for the purpose of proving of charge of forgery, it is essential that the prosecution has to prove that the documents in question have been prepared and forged by the accused Sessions Case Number: 230/1/2010 Page 34 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. persons in their own handwriting and signatures or their instance by some other person, the accused must have forged the documents which has implied forged and dishonest on the part of the accused. The forgery must be proved that the alleged identity cards have fraudulently and dishonestly used as genuine for the purpose of cheating knowing to be forged documents for offence punishable u/ 466/467 IPC read with the ingredients of section 463 have to be established and hence section 195(1)
(b)(ii) of Cr.PC is a bar for initiation of proceedings during the pendency of a civil suit as observed in (1191) 3 Andh LT 595 (597).
In case titled as Magan Bihari Lal AIR 1977 SC 1091, wherein it has been observed that, the expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law.
In case titled as Motty Philipose 2006 Cri LJ 2271 (Ker) wherein it has been observed that in case of forgery marks list for obtaining admission to a medical college, there being no direct evidence as to who had committed that forgery, official in the University who had allegedly made certain entries in the said marks list having been acquitted, no expert evidence with regard to handwriting forthcoming, the accused were acquitted for the offence under section 465/466 or 468 IPC. Sessions Case Number: 230/1/2010 Page 35 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. For the purpose of cheating by forgery, the prosecution must proved that the documents used for the purpose of cheating. The prosecution in this respect is lacking of evidence. There is no evidence to show that as to who has procured and fabricated these documents for what purpose or for what use or who has prepared the identity cards and air tickets in the fake names. Similarly in case titled as Sriramappa T.K. 2006 Cri LJ (1851) (Kar) where the accused allegedly forged hall tickets to enable some other students to appear for the examination in place of the actual students but considering that the hall tickets seized from the accused were not of relevant examination in progress and there being no evidence to show as to far what purpose those documents were to be used, the accused were acquitted.
The charge for offence punishable u/s 471/474 IPC is not being able to prove by the prosecution in absence of any ocular and positive evidence that who is manufacturer of this document or that accused persons has ever forged any document. Investigating Officer admitted that he never investigated that these are forged documents. For the purpose of proving offence u/s 474 IPC from the statement of police officials it revealed that they apprehended the accused persons having knowledge that the alleged identity cards are forged before due verification from the concerned authority. The admission of the Investigating Officer that no investigation was made about the Sessions Case Number: 230/1/2010 Page 36 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. genuineness of the identity cards and who prepared the fake Identify Cards, what the dishonest intention or motive.
So far as charge u/s 120 B IPC, the two accused persons did not know the third accused before the arrest and production before the court in this case and there is no prior meeting of mind. Even from the evidence of PW5 Rajeev Sharma accountant in the hotel Swisston Palace and PW9 Yashpal, official from Ahluwalia Palace, both the officials have brought the relevant register and proved the entries which does not corroborate allegation that the accused persons have every been met and hatched with the conspiracy to commit the crime. PW5 and PW9 have not stated that accused P.G. Singh and M.J. K Singh have ever stayed in their hotel with co accused T.S.K. Singh. Accused persons were handed over by Central Intelligence Agency after off loading them from the aircraft. No official from the Airport security or that airlines have been joined by the police to establish that the accused persons ever come to airport and they checked in and they were off loaded. There is no material evidence on record that any baggage was ever checked in by the accused persons with the airline. The framing of charge u/s 121 etc IPC was already declined at the time of framing of charge. So far as with respect to the faulty investigation and lapse on the part of the prosecution case, same cannot be fill up the gap or lacuna to prove the charge.
In the present case from the scrutiny of the evidence on record and totality of the facts and circumstances of the case and the material on Sessions Case Number: 230/1/2010 Page 37 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. record, prosecution failed to make truth like true, proved beyond reasonable doubt. The truth as brought by the prosecution suffered some infirmity when projected through the legal process. Prosecution only able to prove the charges u/s 419 IPC against the accused M.J.K. Singh and P.G. Singh. Rest of the Charges against the accused T.S.K. Singh , M.J.K. Singh and P.G. Singh are not being able to proved beyond all reasonable doubts since the testimony of prosecution witnesses did not inspire confidence to bring home the guilt of the accused persons as per charge framed. The testimony of prosecution witnesses does not reflect with the frame work of the administration of criminal law and justice delivery system. The testimony of prosecution witnesses in cross examination have created several dent which reflect the manner in which the investigation has been conducted and their testimony failed to inspire confidence to the judicial scrutiny except that the identity cards as found in possession of the accused M.J.K. Singh and P.G. Singh is not in their names and they were used on the fake names not only personated one person for the other representing with other or any other person to show that they are the real person. It is definite act that identity cards Ex. P5 and P18 were found in possession of accused M.J.K. Singh and P.G. Singh. Offence u/s 416 is completed that a person personated of articles by any means.
With these observation prosecution has succeeded to prove the charge beyond all reasonable doubt for the offence u/s 419 IPC against Sessions Case Number: 230/1/2010 Page 38 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. the accused M.J.K. Singh and P.G. Singh. However, unable to prove the other charges against all the three accused persons namely Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael S/o Late Sh. Bhorot Singh, Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James S/o Mirangthem Ananda and Thounaojam Shyam Kumar Singh @ Sanayaima @ Sanayai S/o Th. Binoy Kumar, hence they are hereby acquitted by granting the benefit of doubt.
Accordingly accused persons namely Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael S/o Late Sh. Bhorot Singh and Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James S/o Mirangthem Ananda are hereby convicted for offence punishable u/s 419 IPC individually.
ANNOUNCED IN THE OPEN COURT TODAY ON 14.03.2011 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST04) DELHI Sessions Case Number: 230/1/2010 Page 39 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST02) , DELHI.
Sessions Case Number: 230/1/2010 Unique ID Number: 02401R1205172006 State versus 1 Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael S/o Late Sh. Bhorot Singh R/o Wangkhei Konsam Leikai, P.S. Porompat Imphal East, Manipur.
2 Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James S/o Mirangthem Ananda Singh. R/o Wangkhei Keithel Asangbi, P.S. Porompat Imphal East, Manipur.
FIR Number: 70/2006 Police Station: Special Cell Under Sections: 419 of the Indian Penal Code, Appearances: Sh. Subhash Chauhan, Additional Public Prosecutor for the State.
Accused Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael and Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James are produced from Judicial Custody.
Sessions Case Number: 230/1/2010 Page 40 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. Sh. V.K Ohri, counsel for accused persons namely Accused Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael and Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James ORDER ON SENTENCE:
Present: Sh. Subhash Chauhan, Additional Public Prosecutor for State.
Both accused/Convicted with counsel Sh. V.K. Ohri, Advocate. Both the accused/convicted have been convicted for offence punishable u/s 419 IPC vide separate detailed judgment dated 14.03.2011.
I have heard submission of Ld. APP for State and counsel for accused persons on the point of sentence and carefully gone through the material on record.
Ld. APP for state argued that the prosecution proved its case against both the accused persons beyond all reasonable doubts. The evidence led by the prosecution is consistent and the testimony of prosecution witnesses are trustworthy, corroborated and believable. Ld. APP for state further submitted that all the material witnesses examined have proved the both convicted traveled on the identity cards Ex. P5 and P18 on the face name as personated themselves as M.Milan Singh and R.K. Romeo Singh. The deposition of prosecution witnesses and the Sessions Case Number: 230/1/2010 Page 41 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. documents prepared during the course of investigation are reliable and trustworthy. Therefore, both the accused persons are liable to be awarded harsh sentence for the charges as proved u/s 419 IPC.
The counsel for the convicted submitted that the accused persons belongs to Human Rights Activists in Manipur and are languishing in J/C since October, 2006. The recovery of alleged identity cards of Forest Department from the possession of accused persons have been planted. The are innocent people and fighting for the human rights of the people living in the territory of Manipur. Therefore, prayed for a lenient view and releasing them on undergone imprisonment. It is further submitted that both the the convicts are having clean antecedents and if remain in judicial custody their family members will suffer and punish. Therefore, prayed to release then on undergone imprisonment.
In view of the aforesaid submission, it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183:
28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which Sessions Case Number: 230/1/2010 Page 42 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Sessions Case Number: 230/1/2010 Page 43 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, 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 etc. Both the accused/convicted committed an offence which is not so serious as to the homicide but if we take the wider meaning, the person traveling on fake identity and having in possession of the fake identity cards what was the motive except to disguise their identity for ulterior motive and caste doubt on their demeanor.
As per offence punishable u/s 419 which provides that " whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Therefore, in view of the facts and circumstances and the contentions raised both the convicts namely Phanjoubam Ghanshyam Singh @ Romeo @Priyo @ Michael S/o Late Sh. Bhorot Singh and Moirangthem Jayanta Kumar Singh @ Milan @ Iboyamima @ James S/o Mirangthem Ananda are sentenced for the period of imprisonment already undergone by them during inquiry, investigation and trial of this case and also directed to pay fine of Rs. 10000/ each, in default of payment of fine, both the accused will undergo simple imprisonment for six months each Imprisonment for the offence punishable u/s 419 IPC.
I think the sentence awarded will meet the end of justice and also Sessions Case Number: 230/1/2010 Page 44 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc. have a deterrent as well as reformatory way in the mind of the convicts.
Copy of this order be given to the convicted free of cost forthwith. ANNOUNCED IN THE OPEN COURT TODAY ON 18.3.2011 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST04) DELHI Sessions Case Number: 230/1/2010 Page 45 of 45 Unique ID Number: 02401R1205172006 State versus Phanjoubam Ghanshyam Singh Etc.