Delhi District Court
State vs . Joginder & Ors. Fir No. 405/13 on 30 March, 2022
State vs. Joginder & Ors. FIR No. 405/13
IN THE COURT OF MS. UDITA JAIN GARG: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
State vs. Joginder & Ors.
FIR No.405/13
U/sec. 419/420/34 IPC
PS: Mianwali Nagar
Date of institution of the case: 19.04.2014
Date on which judgment is reserved: 26.03.2022
Date on which judgment is delivered: 30.03.2022
JUDGMENT
a) Date of commission of the offence : 14.12.2013
b) Name of the complainant : Sh. A.K. Pandey
c) Name of the accused and his parentage : 1. Joginder
S/o Sh. Mukesh
R/o H. No. 73/21, Om Nagar,
Gurgaon, Haryana.
2. Sandeep
S/o Sh. Jai Kishan
R/o VPO Chhuchhakwa, H.No.
District Jhajjar, Haryana.
d) Offence complained of or proved : Sec. 419/420/34 IPC
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
Page 1 of 24
State vs. Joginder & Ors. FIR No. 405/13
g) Date of such order : 30.03.2022
h) Brief reasons for just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 14.12.2013, during morning session of the recruitment test of KVS for the post of PGT (Computer Science), accused Joginder was impersonating as accused Sandeep for appearing in the examination. Both of the above mentioned accused persons entered into a criminal conspiracy for committing impersonation, fraud, preparation and using of forged documents. It is alleged that the accused Joginder in furtherance of his criminal conspiracy appeared in the exam as accused Sandeep and had fraudulently received OMR sheet and question booklet by deceiving the invigilators. The accused Joginder furtherance of his criminal conspiracy to appear in the exam in place of accused Sandeep, had put false signatures of accused Sandeep on the OMR sheet, question booklet and the admit card. The said documents were forged and used by the above mentioned accused persons for the purposes of cheating. On the basis of the said allegations, present FIR bearing no.405/13 was registered at PS Mianwali Nagar against the accused persons u/S. 419/420/34 IPC.
After completion of the investigation, charge-sheet under sections 419/420/34 IPC was filed before the court. Consequently, accused were summoned to face the trial. On their appearance in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
Vide order dated 21.09.2015, charge under sections 419/420/468/471/120-B IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
To bring home the guilt of the accused persons, prosecution has examined as many as nine witnesses.
Page 2 of 24State vs. Joginder & Ors. FIR No. 405/13 PW1/Sh. K.S. Parmar, Invigilator on the date of the incident deposed that he was deputed as an Invigilator in the exam of PGT (Computer Science) in Kendriya Vidhyala, Paschim Vihar. The said witness failed to remember the date and month of the incident and averred that during the abovesaid examination, accused Joginder was sitting in the examination hall for giving the exam. On checking, he was found in possession of one mobile phone about which information was given to the Principal of the school Sh. A.K. Pandey and accused Joginder was taken from the examination hall alongwith the Principal.
As the said witness resiled from his stance given to the police official, he was cross examined by the Ld. APP for the State with the permission of the court.
During his cross examination by the Ld. APP for the State, the witness admitted that the date of exam was 14.12.2013 and the timings were from 10:00 am to 01:00 pm. He admitted stating to the police that accused Joginder sitting on the seat of roll No.631679466, produced the admit card, the photograph of which did not match with the accused Joginder. He averred that he became doubtful and after enquiry, the person sitting on the examination seat disclosed his name as Sandeep. The said witness, however, denied that accused Joginder signed the attendance sheet in his presence. He further denied that the accused Joginder was arrested and relevant documents were taken in possession by the police official in his presence.
During his cross examination by Ld. Counsel for accused Joginder, the said witness admitted that at the main gate of the centre, the identity of the candidates was checked by the authorities before entering the examination centre. The said witness failed to tell the area of the room in which he was deputed as an Invigilator. He asked the accused Joginder to produce the ID proof at the time of checking the admit card while sitting on the seat. He had not signed on OMR sheet before asking the accused produce ID proof. He stated that there were different Page 3 of 24 State vs. Joginder & Ors. FIR No. 405/13 series of booklet and before verification of candidates the booklets were already distributed to the candidates. He failed to remember the roll number of accused Sandeep. He stated that he came at the seat of Sandeep for verification after 25 minutes of starting the exam and he cannot say by that time accused Joginder had attempted any question or not. He was the only Invigilator in room no.59. The accused Jogender has not tried to flee away from the room. He passed on the information to the supervisor through reliever i.e. the person who brings question booklets to the room. The supervisor Sh. A.K. Pandey enquired accused Jogender after reaching the room. He stated that Sh. A.K. Pandey remained in the room for 5-10 minutes and thereafter he left the room with accused Joginder. He denied the suggestions that accused Joginder was not there in the class room. He further denied the suggestion that accused Joginder was previously known to him. He stated that the Supervisor Sh. A.K. Pandey had taken away the OMR sheet, question booklet and all other documents available on the desk of accused Joginder. He further stated that accused had not filled any answer in the same. He denied the suggestion that the roll number, series of booklet, application number and date of examination on the OMR sheet were written by accused Sandeep and not by accused Joginder. He stated that the police reached the school during continuation of the exam and his statement was recorded by the police only after completion of the exam. He stated that no police official visited room no. 59 i.e the room where the alleged offence was committed in his presence. He further stated that during the continuation of exam, he was once called to the control room where police officials were present, however, he apprised them that he will join the investigation after completion of the exam. The signature of the name Sandeep were put on the OMR sheet in his presence. He further stated that he had taken signature on OMR sheet, however, he do not remember whether signature on attendance sheet were taken or not. He denied the suggestion that accused Joginder was forced to put signatures on the question booklet. He further stated that he Page 4 of 24 State vs. Joginder & Ors. FIR No. 405/13 immediately joined the investigation after completion of the exam.
During his cross examination by Ld. Counsel for accused Sandeep, he stated that the list of candidates who appear in the exam is provided to invigilator before entering of the candidates in the examination hall. He stated that prior of signing the present sheets of the candidates they do tally the identity of the candidate from the list provided to them. However, in the present matter he may have put his signatures on the OMR sheet before tallying. He further stated that first of all, he apprised the candidate who was impersonating that he is impersonating the real candidate and he also immediately apprised the examination control room. He stated that as he simply handed over the matter to the control room and so he cannot say that what are the document candidate was keeping with him relating to his identity. He denied the suggestion that no documents were filed with the complaint and that is why there is no mention of the documents in the complaint. He denied the suggestion that he has made the present false complaint to the Principal under his instructions being his subordinate.
PW2/ Sh. A.K. Pandey was the Principal at Kendriya Vidyalya, Paschim Vihar, Delhi. He deposed that on 14.12.2013, there was a PGT exam in the school between 10:00 am to 01:00 pm, in the room no.59 where some invigilators were performing their duties. He stated that Invigilator namely K.S. Parmar reported to him that one person namely Joginder was sitting at the seat of Sandeep and he was committing impersonation and one samsung mobile phone was recovered from his possession. He made a call at 100 number and handed over the documents to the police official. The said witness failed to identify the accused persons despite opportunity. He stated that he made a complaint to the police official which is Ex.PW2/A. Police official prepared a site plan at his instance which is Ex.PW2/B. Police official seized some documents vide seizure memo Ex.PW2/C. He further stated that Invigilator Sh. K.S. Parmar made a complaint to him which Ex.PW2/D. Page 5 of 24 State vs. Joginder & Ors. FIR No. 405/13 Sitting plan of room no.59 is Ex.PW2/E. Attendance sheet of room no.59 is Ex.PW2/F, Pan Card of accused Sandeep is Ex.PW2/G. Annexure 1A for fixing the centre is Ex.PW2/H. Duty chart of invigilator in room no.59 is Ex.PW2/I. Police official seized the mobile phone vide seizure memo E.PW2/J. Accused Joginder was arrested vide memo Ex.PW2/K. During cross examination by the Ld. APP for the State, PW2 Sh. A.K. stated that he is not identifying the accused as the case is old. He denied the suggestions that he is deposing falsely on the point of identity of the accused Joginder in collusion with him.
During cross examination by the Ld. Counsel for accused Sandeep, witness deposed that the school premises is surrounded by boundary having its main gate to enter into the school. He stated that whenever an examination for services is conducted a special arrangement for the safety is made by the government, however, it depends upon the kind of the examination. He stated that as per the procedure, the candidate after entering into the examination hall first of all shows his identity, thereafter he is provided the OMR sheet. After distribution of OMR sheets particulars and identity of the candidate is tallied and thereafter invigilator puts his signature on the OMR sheets. He stated that he countersigns the OMR sheet only after completion of the exam, however, in the present case since the OMR sheets and other documents were seized in between the exam hence he signed the same prior to completion of the exam. He, however, changing his stance again said, that in the present case the OMR sheet is not signed by him but it is signed by the Invigilator as there is no column for the Principal. He further stated that he had not signed the attendance sheet either. He further stated that Invigilator Sh. K.S. Parmar had made a written complaint to him regarding impersonation in the examination which is already Ex.PW2/D which he had seen where there is no mention of any of the document/annexure except mobile model Samsung Galaxy Page 6 of 24 State vs. Joginder & Ors. FIR No. 405/13 S-4 GT 19500. He stated that the complaint was forwarded by him to the SHO, PS Mianwali Nagar under his signature on 14.12.2013. He further stated the candidates are directed to hold their admit cards in their hands before entering into the main gate of the college and thereafter, they show the same to the invigilator of the respective examination hall. He stated that he personally cannot not identify any of the accused persons present in the court today. He also not failed to identify as to which of the accused persons present in court impersonated as a candidate and as to who was the actual candidate.
During cross-examination by Ld. Counsel for Jogender, PW-2 stated that at the entrance of the centre physical checking of the candidate used to be conducted by the security guard. He further stated that at the instruction of the examination superintendent of the centre, the examination subordinates are deputed at the entrance of the centre. He further stated that it is only after complete satisfaction, the candidates are allowed to enter into the examination centre. Invigilator distributes OMR sheets to the candidates prior to proper verification of the candidates and thereafter the OMR sheets are signed by the Invigilator.
He further stated that he had seen accused Jogender in the examination hall when he was called in the examination hall by the Invigilator. He averred that generally there used to be two Invigilators in an examination hall, however, he did not remember how many invigilators were present in the examination room in respect of the present examination but he can tell the same after seeing the duty roster. He further stated that he does not remember whether the police officials had seized the duty roster on the date of incident or not. He deposed that no documents were recovered from accused Jogender in his presence. He further stated that he does not remember whether anyone from examination department of KVS was present in the examination hall. He deposed that invigilators remain present in the examination hall prior to coming of the candidates in the examination hall.
Page 7 of 24State vs. Joginder & Ors. FIR No. 405/13 Approximately half an hour prior to the start of the exam, invigilators are sent to the examination halls as they have to write sitting arrangement etc. The documents are sent to the invigilator afterwards, however, prior to start of the exam. He further stated that it takes half an hour to one hour even after start of the examination to verify the candidates, their admit cards and identity. Within an hour of the start of the examination he was informed that a impersonator has been apprehended. He stated he almost immediately i.e. within 5-10 minutes called at 100 number and passed on the information regarding the apprehension of the impersonator. He further stated that after receiving the information, he alongwith other staff and invigilator brought the impersonator to control room and the police had not brought him from the examination hall to the control room. He further stated that within half an hour of the complaint, police also reached there. Police remained at the school for about 1-2 hours. He further stated that first of all police conducted enquiry from the impersonator. After an hour of the conclusion of the examination he went to his home from the spot. He further stated that he does not remember if police had returned to the examination centre after leaving for the first time. He further stated that he visited the police station once in respect of the present case as he was called by the police and it must be 1-2 days after the incident. He further stated that even on that day when he went to the police station he put his signatures on some documents, however he could not tell the description of those documents. He further stated that a Samsung phone was recovered by the Invigilator from the accused and was handed over to him by the Invigilator only. He failed to remember if at the centre he had signed on certain documents prepared by the police. He denied the suggestion that the Invigilator had not handed over any document or mobile phone allegedly recovered from accused Joginder and that the personal documents of the accused were forcefully taken by him with the help of school staff after calling the same from his PG in Paschim Vihar. He denied the suggestion that accused Joginder was not impersonating accused Sandeep in the examination Page 8 of 24 State vs. Joginder & Ors. FIR No. 405/13 hall.
PW3/HC Manoj Kumar deposed that on 14.12.2013, he was posted at PS Mianwali Nagar as MHC(M) and on that day IO of this case SI Ajay Kumar handed him over one mobile phone make Samsung grey colour Model GT500 for depositing the same in Malkhana. Accordingly, he deposited the same in Malkhana and made entry in register no.10 at serial no.1756, copy of same is Ex.PW3/A. He further deposed that on 29.01.2014 at the instruction of the SHO, he handed over three sheets and fifteen sheets to HC Joseph Kutty for depositing the same to FSL, Rohini vide RC No.10/21/14. After depositing the same FSL, HC Joseph Kutty handed over the receipt to him.
During cross examination by Ld. Counsel for accused Joginder, he stated that he do not remember at what serial he had made entry on 14.12.2013. He further stated that the case property was deposited with him at about 04:30-05:00 pm. All the entries on 14.12.2013 were made by him in the register no.19. He had mentioned the make of the phone in register no.19 on the basis of seizure memo. He had handed over the case property to HC Joseph Kutty at about 10:00 am on 29.01.2016. He stated that the case property i.e. mobile phone is not mentioned in the road certificate which is Ex.PW3/B. He further deposed that there is overwriting in the acknowledgement of the FSL however, the same was not overwritten by him.
PW-4/HC Joseph Kutty deposed that on 29.01.2014, he was posted at PS Mianwali Nagar as Head Constable. He stated that he was handed over nine sheets and fifteen sheets in case FIR No.405/13 for depositing the same to FSL, Rohini and after depositing the same, he came back to PS and handed over the copy of receipt to MHC(M). He stated that till the sample remained his possession the same was not tampered with.
Page 9 of 24State vs. Joginder & Ors. FIR No. 405/13 During cross-examination by Ld. Counsel for accused Joginder, PW-4 deposed that he does not remember at what time MHC(M) handed over him the case property for depositing the same at FSL Rohini. He stated that case property was in sealed condition, however, he could not tell which seal was put on it. He stated that he took the above stated sheets for depositing in FSL office after counting with MHC(M) PS Moti Nagar.
PW5/HC Rajeev Kumar deposed that on 14.12.2013, he was posted at PS Mianwali Nagar as Duty officer from 08:00 am to 04:00 pm. At about 11:20 am, he received a call regarding the present case. He stated that he recorded the information in roznamcha as DD No.14A. He stated that he had brought the original roznamcha (OSR). A print out of the FIR so registered was obtained and handed over to Ct. Mohan to be handed voer to SI Ajay Kumar. The same is Ex.PW5/B. During cross examination by the Ld. Counsel for accused persons, PW-5 stated that he had received the information regarding the incident at 11.20 AM. The said time of receiving the information was not mentioned in the FIR but it is mentioned in DD no. 14A. He further stated that except rukka nothing was sent by the IO for the registration of FIR.
PW-6/ASI Kailash deposed that on 14.12.2013 he was posted at PS Mianwali Nagar as Head Constable and on that day, SI Ajay Kumar deposited in Malkhana one mobile phone make Samsung IMEI no. 357196054542480 which was recovered from the possession of accused Joginder.
During his cross examination by the Ld. Counsels for accused persons, PW6 stated that on 14.12.2013 HC Manoj was the MHC(M). He further stated that he cannot tell the period during which HC Manoj remained at PS Mianwali Nagar. He denied Page 10 of 24 State vs. Joginder & Ors. FIR No. 405/13 the suggestion that he is acquainted with the signatures and handwriting of HC Manoj. He further denied the suggestion that he never worked with HC Manoj. He further stated that he does not remember the IMEI number of the mobile phone in question and on 29.01.2014, HC Manoj was MHC(M). He further stated that he has no personal knowledge about the road certificate as mentioned above and he was not on duty with HC Manoj on 29.01.2014, however, he was posted and present in the PS Mianwali Nagar.
During cross examination by the Ld. APP for the State, PW6 deposed that he gavels statement as per the record which he had brought.
PW-7/Ct. Mohan deposed that on 11.12.2013 he was posted at PS Mianwali Nagar as Constable and on that day, on receipt of DD no. 10A, he along with SI Ajay Kumar reached Kendriya Vidyala, Central School, Paschim Vihar. He further stated that on reaching there it was found that accused Joginder was appearing in examination on behalf of other person and this information was given to them by the Principle of the above stated school. Other staff members of the school were also present there. At the same point of time the Principal of the school handed over to the IO the OMR Sheet, PAN card and DL which were in the name of another person namely Sandeep. He further stated that the name of Principal of the Kendriya Vidyalaya is Sh. Pandey and on the complaint of the Principal IO prepared the tehrir. The same was handed over to him for the registration of FIR. Thereafter, after registration of FIR he returned at the spot and handed over the original tehrir and copy of FIR to the IO. The documents which were handed over to the IO by the Principal were seized vide memo already Ex. PW2/C. The mobile phone was also seized by the IO vide memo already Ex. PW2/J. The driving license, PAN Card and identity card were also seized by the IO vide memo Ex. PW7/A and Ex.PW7/B respectively, both bearing his signatures at point A. He further stated that the accused was arrested vide memo already Ex. PW2/K. He Page 11 of 24 State vs. Joginder & Ors. FIR No. 405/13 further stated that the personal search of accused Joginder was also conducted vide memo Ex. PW7/C bearing his signatures at point A. He further stated that on 14.01.2014, accused Sandeep surrendered himself at PS Mianwali Nagar.
During his cross-examination by Ld. Counsels for accused persons, PW7 deposed that DD no. 10A was received by the IO at about 10.00 AM in the morning at DO room. He further stated that he accompanied the IO for the investigation and they proceeded for the spot i.e. Kendriya Vidyalaya at about 10.00 AM on the motorcycle of IO but he cannot tell the registration number of the motorcycle which was used by the IO. He further stated that they reached at the spot within 15 minutes of their departure from PS and they reached at the spot at around 10.15 - 10.20 AM. He further stated that initially, on reaching at the spot the Principal met them at the reception gate inside the school. He further stated that he does not remember at present whether any person was produced before the IO first or any document was handed over to the IO. IO accompanied the Principal to the Examination Hall but he cannot tell the room number of the same. He denied the suggestions that no documents were recovered from the possession of accused Joginder. He volunteered that the IO recovered the driving license from the pocket of the trouser of accused Joginder. He further stated that he does not remember the DL number however, it was probably in the name of accused Sandeep. He further stated that he does not know from which Transport/licensing authority the said license was issued and its date of issuance and date of expiry. He further stated that he does not remember exactly whether any person except himself and IO was present or not at the time of recovery of alleged driving license. He averred that he does not remember the exact time of recovery of documents. He further stated that IO recovered question paper, OMR sheet and admit card from accused Joginder and he does not remember the place of alleged recovery of the documents. He further stated that there were other students present in the examination hall and he Page 12 of 24 State vs. Joginder & Ors. FIR No. 405/13 cannot tell the number of rows in the examination hall. He deposed that he cannot tell the floor of the examination hall in the school where the alleged offence took place. He further stated that he cannot tell the exact seat of the accused Joginder in the examination hall. He denied the suggestion that he had never visited the examination hall that is why he does not remember the above stated facts. He further stated that he cannot tell the series of question paper as well as the serial number of OMR Sheet. He failed to mention whether the OMR sheet was filled up, was blank or was partly filled up. He further stated that he does not remember whether it was signed or not. He also failed to remember whether the OMR sheet was signed by any of the teaching staff /invigilator or not. He failed to remember whether the examination was still continuing or was over when they entered into the class room. He further averred that the IO did not inquire from any students who were appearing in the examination. He, further failed to remember the name of the invigilator who were discharging their duties at the relevant time or that whether their statement was ever recorded by the IO. He also failed to remember whether accused Joginder was already in the examination hall or he was taken to the examination hall from outside. He denied the suggestions that the site plan was not prepared by the IO in his presence and that is why he had not signed on the same. He further stated that he does not remember which one of the document was prepared first by the IO. He further stated that he does not remember exactly at what time the Principal of the Kendriya Vidyalya handed over the documents to the IO. He further stated that he cannot tell at what place in the Kendriya Vidyalya, the Principal handed over the documents to the IO. He further stated that he does not know whether any police official from the police station visited the place of occurrence during their stay or not. He further stated that document Ex. PW2/A was bearing date 14.11.2013 at point B. He further stated that he does not remember how many documents were prepared by the IO prior to the preparation of tehrir. He further stated that he does not remember the time or place of Page 13 of 24 State vs. Joginder & Ors. FIR No. 405/13 preparation of tehrir. He further stated that he went to the PS for the same on motorcycle. After his return from the PS to the spot, he failed to remember as to which of the document was prepared by the IO. He further stated that accused was arrested after his return to the spot with copy of FIR but he could not remember the exact time of arrest. He failed to remember if any person was present at the spot or not. He further failed to recall as to who was present at the time of arrest of the accused and what writing work was done by the IO after his return to the spot with the copy of FIR and before arrest of the accused. He denied the suggestion that IO obtained the signatures of the accused Joginder on blank paper and then prepared the disclosure statement. He further failed to remember as to who, from the vidyalaya staff or independent person remained present at the spot during inquiry. He denied the suggestion that he was not present at the spot when the accused Joginder was arrested vide memo. He further stated that he does not remember except himself who had signed on the arrest memo of accused Joginder. He further stated that he does not remember whether he had signed on the arrest memo of accused Joginder whether any other witness has signed on the same or not. He stated that all the columns of arrest memo were duly filled when he had signed on the same. He does not remember to whom the information of arrest was given by the IO. He also cannot tell by which mode the information was given. The accused was arrested from the Kendriya Vidyalaya. He does not know whether staff members were present in the school or not when they left the spot. He denied the suggestion that accused is falsely implicated at the instance of the Principal due to a quarrel between the Principal and accused occurred outside the school on parking of their car. He denied the suggestion that accused Sandeep was called at PS for some verification and thereafter he was falsely implicated. He denied the suggestions that accused Sandeep has no relation/link with the co accused Joginder.
Page 14 of 24State vs. Joginder & Ors. FIR No. 405/13 PW-8/SI Umed Singh deposed that in the month of January, 2014, he was posted at PS Mianwali Nagar as Sl and during the month of January, 2014, he was handed over the case file of the present case for further investigation. The accused Sandeep had surrendered before him on 14.01.2014 and joined the investigation. He further stated that the accused was interrogated and made his disclosure statement which is now Ex.PW8/A signed by me at point-B. He further stated that he produced the accused before the court and the specimen of accused was taken with the permission of the court. After taking the specimen signature and thumb impression, the accused was again produced before the court and he was sent to J.C. Thereafter, he sent all the questioned documents, specimen signature and thumb impression of both the accused to FSL Rohini.
During cross examination by the Ld. Counsel for accused Joginder, PW8 deposed that no specimen, signature and thumb impression of accused Joginder was taken by him. The specimen signatures and thumb impression of accused Joginder were already on the file when the same was received by him. He further stated that these documents were unsealed on the file. He denied the suggestions that both the accused had no relation/contact with each other prior to the registration of this case or that they met for the first time when the accused was falsely implicated in this case.
PW 9/ SI Ajay Kumar deposed that on 14.12.2013, he was posted at PS Mianwali Nagar as SI and on that day, he was on emergency duty at PS. At about 11.15 am, a DD no. 14A was received regarding cheating in examination centre at Paschim Vihar, Central District. Thereafter, along with Ct. Mohan, he reached the office of principal A.K. Pandey. He further stated that the other staff of the school was present in the office. The Principal informed him that accused Joginder was appearing in the examination in place of one Sandeep. He alongwith Ct. Mohan and accused Joginder went to village Chuchakwas, Haryana to search another Page 15 of 24 State vs. Joginder & Ors. FIR No. 405/13 accused Sandeep but accused Sandeep was not found. He further stated that on 19.12.2013, specimen signature and thumb impression of accused Joginder were obtained with the permission of the court. NBWs of accused Sandeep was taken. The specimen signature of accused Joginder was taken which is Ex. PW-9/D bears my signature at point A and signature of accused Joginder at point B. Left thumb impression of accused Joginder was taken with the permission of Court which is Ex. PW-9/E bearing his signature at point A and signature of accused Joginder at point B on each page.
During cross examination by the Ld. Counsel for accused Sandeep, PW9 deposed that first of all, when he reached the college in pursuance of DD no. 14A, the principal alongwith some staff met him in his office. All the items which he seized vide seizure memo, were already in possession of complainant who handed over the same to him along with the complaint to SHO. He volunteered that the Principal also handed over to him the accused Joginder, who was already in the office of Principal. He admitted that there is no mention regarding the driving licence of accused Sandeep. He further stated that the PAN CARD can be obtained of anyone else through online if they have the correct particulars of the person. He prepared the site plan only after he inspected the class room. He had seen the site plan where only the school is shown at point A. He admitted that he had not prepared the site plan either showing the entrance of the same, the office of principal, the location of the class room, the number of class rooms and the storey of the building. He stated that he had also not shown the sitting arrangement of the students as the plan thereof was handed over to him by the principal. He further stated that he had raided the house of accused Sandeep at Chuchakwas, District Jhajhar, Haryana. He stated that he had not recorded the statement of any neighbours of accused Sandeep or his family members. He further stated that he has not made any site plan of the house where he conducted the raid. He had made Page 16 of 24 State vs. Joginder & Ors. FIR No. 405/13 another seizure memo seizing the DL & PAN card of accused Sandeep in the office of principal after registration of FIR. However, he stated that no staff of the college or the principal is cited as witness in the seizure memo. He averred that during the course of investigation, no proof of any friendship, relationship between the accused persons was found available except their respective disclosure statement. During the cross-examination by the Ld. Counsel for accused Joginder, PW9 deposed that the information was received at about 11.15 a.m at PS vide DD No. 14A. He had reached the school along with Ct. Mohan on his motor-cycle. He reached the school at about 11.40 a.m. He deposed that no other staff of the school were asked to join the proceeding except the Principal and two invigilators. He further stated that principal or invigilators have not been cited as witness on document Ex.PW-7/A. He averred that there were four rows in class room for seating the candidates and accused Joginder was sitting in third row at second left seat. Other candidates were present on their seats at the time of inspection. He stated that none of the candidates had joined the investigation as they were busy in their exam. He, however, volunteered that he asked the candidates regarding appearance of accused Joginder in examination room at about 01.00 pm when exam was over. He failed to tell the particulars of the said candidates from whom he asked regarding appearance of accused Joginder in the exam. He failed to disclose the place where the candidate was sitting in room no. 59. He denied the suggestions that signature of accused Joginder was obtained on booklet, admit card and attendance sheet in principal office. He stated that mobile phone was not recovered from the possession of accused Joginder in his presence. He had not verified if there was any relationship between accused Joginder and Sandeep.He stated that no independent witness signed as witness on seizure memo of PAN card, I card and DL. He stated that no public person was called to join the proceedings except the Principal and invigilator. He denied the suggestion that accused Joginder has been arrested and falsely implicated at the instance of Page 17 of 24 State vs. Joginder & Ors. FIR No. 405/13 Principal.
Thereafter, PE was closed and statement of accused under section 313 of the Code was recorded to afford them an opportunity to explain the incriminating circumstances appearing against him in evidence. They denied the allegations and pleaded false implication.
I have heard the learned counsel for the accused persons, perused the written arguments filed on behalf of the accused and have heard the learned APP for the State. I have also perused the records very carefully.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought Page 18 of 24 State vs. Joginder & Ors. FIR No. 405/13 on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
Before appreciating the evidence, a glance at the relevant statutory provisions is necessary for the disposal of this case.
The offence of cheating is defined u/s 415 IPC. The following ingredients are required to be proved for convicting a person for the offence of cheating:
1. Deception of any person.
2. (a) Fraudulently or dishonestly including that person:
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
As per Section 120 B IPC :
Punishment of criminal conspiracy.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous im- prisonment for a term of two years or upwards, shall, where no express provision is Page 19 of 24 State vs. Joginder & Ors. FIR No. 405/13 made in this case for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
As per Section 419 IPC:
Punishment for cheating by personation--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.
As per Section 468 IPC:
Forgery for purpose of cheating--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
As per Section 471 IPC:
Using as genuine a forged document--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record forged] which he knows or has reason to believe to be a forged [document or electronic record forged], shall be punished in the same manner as if he had forged such [document or electronic record forged] On perusal of the case file, it is clear that the case of the prosecution is filled with glaring contradictions. The invigilator, PW-1 who purportedly discovered the act of impersonation, failed to give account of any such incident when called by the pros- ecution in evidence. It was only after he was cross- examined by the Ld. APP that Page 20 of 24 State vs. Joginder & Ors. FIR No. 405/13 the witness gave evidence supporting the case of the prosecution. Further, the complainant of the present case i.e PW-2 has failed to identify the accused persons in the dock. A successful prosecution of a criminal action largely depends on proof of two things: the identification of the author of the crime and his actual commis- sion of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender's identity. Now even though, the invigilator i.e PW-1 has identified the witness during his evidence, the failure of the complainant, PW-2 in identifying the accused largely weakens the case of the prosecution, more so, when he is the only other public witness cited by the prosecution and when he, himself, is the complainant. Furthermore, despite availability of other candidates in the examination room where the offence is al- leged to have been committed, the said candidates have neither been examined nor cited as a witness.
It was argued on behalf of the accused that as per prosecution the examination room from where the accused was apprehended there were 24 other candidates giving the exam, but in spite of that, no such witness was joined by the police and this fact creates a shadow of doubt on the genuineness of prosecution case. Learned defence counsel further argued that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses.Page 21 of 24
State vs. Joginder & Ors. FIR No. 405/13 In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case.
Furthermore, this Court can not also be oblivious of the fact that the admit card of the entrance examination bears the passport size photograph of the candidate. Perusal of the testimony of the Principal and the sole invigilator categorically shows that any candidate has to get his identity verified before entering the examination hall. It is very surprising as to how accused Joginder Kumar appeared on behalf of accused Sandeep in the examination despite being verified by the staff at the entrance. Furthermore, despite making an averment to the effect that the OMR sheets are signed only after verification of the identity of the candidate, the witness, PW-1 has admitted that his signatures as invigilator, is present on the OMR sheet. The said averment of PW-1 further weakens the case of the prosecution and fails to inspire confidence in the court as to the veracity of the prosecution story.
As far as the FSL evidence in the case is concerned, it is a well known fact that FSL evidence qua handwriting and signatures is an opinion evidence and it can not take the place of substantive evidence. It is rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence. It is not safe to rely on this type of evidence without seeking independent and reli- able corroboration. It is also a settled proposition that FSL examination of hand-Page 22 of 24
State vs. Joginder & Ors. FIR No. 405/13 writing/ specimen signature is not as accurate a science as DNA analysis and thus corroboration of the version of the prosecution by other witnesses is necessary to discharge the burden of proving the case beyond reasonable doubts.
Considering the aforesaid discussion and the fact that the above stated testimonies of PWs indicate that the alleged version of the prosecution is not proved beyond reasonable doubts, it follows that in such a case, relying solely on the expert opin- ion would not be justified.
It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in catena of judgments by the superior courts.
Result The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, the accused is entitled to the benefit ofdoubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454 (SC). The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced Page 23 of 24 State vs. Joginder & Ors. FIR No. 405/13 in the case one pointing to the guilt of the accused and the other to his innocence the view which is favorable to the accused should be adopted.
Therefore, keeping in view the overall conspectus of the case, this court is of the considered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused. Therefore, this court gives benefit of doubt to the accused and accordingly, accused Joginder and Sandeep are acquitted of the charge levelled against them.
Digitally
File be consigned to record room after due compliance. signed by
UDITA
UDITA JAIN
Announced in open JAIN Date:
2022.03.30
Court on 30th day of March, 2022 18:22:13
+0530
(Udita Jain Garg)
MM-06, West District,
Tis Hazari Courts/ Delhi/30.03.2022
This judgment contains 24 pages and each page bears my signature.
(Udita Jain Garg) MM-06, West District, Tis Hazari Courts/ Delhi/30.03.2022 Page 24 of 24