Delhi District Court
State vs Mithilesh Etc. (Accd. Mithilesh ... on 2 August, 2011
FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 220/2000 PS: Subzi Mandi U/s 420/419/468/471/120 B IPC Unique ID No.: 02401R0032342000 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 46/1
(b) Name of complainant : Shri Sukhbir Singh Malhotra, Ld.Metropolitan Magistrate, Tis Hazari Courts, Dehi.
(c) Date of commission of offence : 29.05.2000
(d) Name of the accused : (a) Smt.Mithilesh,
W/o Shri Mahabir Singh,
R/o A159, Sanjay Nagar,
Sector23, Ghaziabad, UP.
(b) Surender Singh,
S/o Shri Narender Singh,
R/o 217, Gali No.7, Padam Nagar,
Sarai Rohilla, Delhi.
(c) Smt.Raj Rani @ Sethani,
W/o Late Shri Ram Saran,
R/o D380, Mangolpuri,
Delhi.
(e) Offence complained of : U/s 420/419/468/471/120 B IPC
State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 1 of 15
FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011
(f) Plea of accused : All pleaded not guilty
(g) Final arguments heard on : 19.07.2011
(h) Final Order : (i) Accused Surender & Smt.Raj
Rani @ Jethani Acquitted.
(ii) Accused Mithilesh Convicted for
offences punishable U/s 419 IPC
and 471 IPC.
However, acquitted for offences
punishable U/s 120 B IPC and
468 IPC.
(i) Date of such order : 02.08.2011
______________________________________________________________ State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 2 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief are that on 29.05.2000, Shri S.S Malhotra, the then learned Metropolitan Magistrate was discharging his duties as Link Magistrate in the court of Ms.Seema Maini (then then learned Metropolitan Magistrate). On that day, Shri Malhtora dealt with case FIR No. 298/2000, U/s 25 Arms Act, PS Model Town, titled as, "State V/s Kuldeep". One lady, claiming herself to be Smt.Pushpa Devi produced Surety Bond, enclosing therewith original Ration Card, purportedly issued in her name in respect of House No.916, Gali No.12, Vishwas Nagar, Delhi; property tax receipt bearing No.063434, dated 06.04.2000 in the name of Smt.Pushpa Devi and one Sale Deed dated 25.04.1978 in respect of the aforesaid house. Shri Malhtora got suspicious about the genuineness of the said documents and identity of said surety Smt.Pushpa Devi. He immediately called Inspector S.S Preet from DCC (North) in court. In court, the said lady admitted that her name was Mithilesh and not Pushpa Devi. Shri Malhotra immediately directed SHO, PS Subzi Mandi to register a case against that lady. Accused Mithilesh was taken into police custody. A complaint U/s 195 Cr.P.C was filed by Shri Malhotra in this court. While in police custody, accused Mithilesh made disclosure statement that she alongwith two other persons namely accused Surender and Smt.Raj Rani had been engaged in the business of standing fake surety on the basis of fabricated documents. She further State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 3 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 confessed that it was accused Surender, who had forged Ration Card and property tax receipt which she had filed alongwith the bail bond. Thereafter, accused Surender and Smt.Raj Rani were also arrested in the matter. During investigation, the specimen handwritings of accused Mithilesh and Surender were taken and the same were sent for handwriting expert's opinion to CFSL alongwith the handwriting appearing on the aforesaid documents. As per the opinion of the handwriting expert, the handwriting of accused Mithilesh matched upon the bail bond, whereas the handwriting of accused Surender matched with the one on property tax receipt and Ration Card.
2. Accordingly, all the three accused persons stood chargesheeted in the matter for offences punishable U/s 419/420/468/471/511 IPC r/w Section 120 B IPC.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 07.01.2004, charges for offences punishable U/s 420/419/468/471 IPC r/w Section 120 B IPC were framed against accused persons namely Surender Singh and Smt.Raj Rani @ Jethani, as by then accused Mithilesh had absconded and had been declared "Proclaimed Offender". Accused Mithilesh was later apprehended and charges against her were framed on 01.04.2009. All the accused persons pleaded not guilty and claimed trial.
State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 4 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011
4. In order to prove charges against the accused persons, prosecution examined eleven witnesses, whereafter the PE in the matter was closed and statements of all the accused persons U/s 313 Cr.P.C were recorded, wherein accused Smt.Raj Rani and Surender abjured all the allegations against them and claimed to be falsely implicated in the matter, whereas accused Mithilesh took the defence that she had been told by someone to sign on the bail bond in lieu of getting her son employed in court and under this impression she had signed the said bail bond.
5. I have heard arguments advanced at bar by learned APP; Shri Bhawani Shanker Sharma, learned counsel for accused Smt.Raj Rani; Shri S.L Jain, learned counsel for accused Surender and Shri Arvind Kumar, learned counsel for accused Mithilesh and have perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
6. PW1, HC Ved Pal was posted as Duty Officer in PS Subzi Mandi at the relevant time and he has proved case FIR in the matter as Ex.PW1/A.
7. PW2, ASI Anita in her evidence disclosed that on 29.05.2000, accused Mithilesh was formally arrested by her. She was also there at the time of her interrogation and making of disclosure statement on 04.06.2000. State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 5 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011
8. PW3, Shri G.P Sharma, Assistant Assessor & Collector, Shahdara South Zone, MCD in his evidence has stated that address given in the Ration Card furnished by accused Mithilesh alongwith the bail bond was found to be "bogus". Even the housetax receipt filed alongwith the bail bond was also false and fabricated.
9. PW4, Inspector Ramesh Chand has deposed about accused Mithilesh having made disclosure statement while in police custody on 04.06.2000. He has further deposed that on 10.07.2000, accused Surender was arrested by him from bus stand Sarai Rohilla, Kishan Ganj, Delhi. After arrest, accused Surender made confessional statement about his involvement in the present case. Accused Mithilesh further made disclosure statement in his presence in the matter on 05.06.2000. He further stated that on 10.09.2000, accused Smt.Raj Rani was formally arrested in this case and she also made a disclosure statement.
10. PW5, Shri Agender Singh, SubRegistrarIV, Seelampur in his evidence stated that the Sale Deed filed alongwith the bail bond by accused Mithilesh was "bogus".
11. PW6, HC Bahadur Singh in his evidence has stated that on 10.07.2000, he was posted as MHC(M), PS Subzi Mandi and Inspector Satbir Singh had deposited Rs.54.70, which was recovered during personal search of State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 6 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 accused Surender and he deposited the same in Malkhana vide Entry No.2337 (Ex.PW6/A), which was later on released to the accused.
12. PW7, Shri Y. Surya Prasad, the Assistant Government Examiner of Questioned Documents, Hyderabad in his evidence stated that specimen handwriting of accused Mithilesh matched with the handwriting on bailbond, whereas the specimen handwriting of accused Surender matched with the handwriting on the forged Ration Card and Income Tax receipt.
13. PW8, Shri Rajesh Thukral, UDC from Record Room (Criminal), Patiala House proved the original bail bond and documents filed along therewith by accused Mithilesh.
14. PW9, Shri S.S Malhotra, the then learned MM in his evidence deposed about he having made enquiries through Inspector S.S Preet, DCC (North) on 29.05.2000 against accused Mithilesh when she impersonated in court as Smt.Pushpa Devi, gave directions to SHO, PS Subzi Mandi to register FIR in the matter, handed over custody of accused Mithilesh to police and filed a complaint U/s 195 Cr.P.C in this court.
15. PW10, SI Raman Pratap in his evidence stated about arrest of accused Smt.Raj Rani on 09.09.2000, she having made disclosure statement while in police custody, making of supplementary chargesheet and pursuant to State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 7 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 her disclosure statement, she got recovered one blank ICard of ANZ Grindlays Bank, two blank ICards of DTC, one blank FDR of Dena Bank and one blank FDR of unnamed National Bank. However, the said documents were seized in case FIR No.322/2000, PS Subzi Mandi and not in this case.
16. PW11, Inspector Satbir Singh in his evidence deposed about the investigation conducted by him in this matter; he having taken the specimen handwriting of accused Mithilesh and Surender; obtaining original bail bond and documents submitted along therewith by accused Mithilesh and thereafter sending the same to CFSL, Hyderabad. In his crossexamination, this witness categorically admitted that he had not obtained the permission of the court before taking specimen handwriting and signatures of accused Surender and Mithilesh. He further admitted that no recovery was effected from accused Surender and Smt.Raj Rani on the basis of their disclosure statement.
17. PW11 (wrongly named as PW11) Shri Dhan Raj Shah, the then Food & Supplies Officer, Circle No.43, Daya Nand Vihar has proved his report with regard to falacity of the Ration Card submitted alongwith the bail bond of accused Mithilesh.
18. A perusal of record would clearly disclose that against accused Smt.Raj Rani, except for her own disclosure statement and the disclosure statements of coaccused Mithilesh and Surender, there is no other legally State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 8 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 sustainable evidence. The disclosure statement of coaccused is not admissible against this accused, whereas pursuant to her own disclosure statement no new fact or material was discovered and as such, her own disclosure statement in this matter cannot be basis of her conviction in this matter. She is accordingly entitled to be acquitted in the matter.
19. As regards accused Surender Singh, he was arrested in this matter pursuant to the disclosure statement made by accused Mithilesh. His specimen handwriting was taken by the IO and the same was sent for comparison with the handwriting appearing on the documents filed by accused Mithilesh while impersonating as Smt.Pushpa Devi. The FSL report Ex.PW7/A has opined that the specimen handwriting of this accused matched with the handwriting appearing on IncomeTax Receipt Mark F and Ration Card Mark E. The other material against him on record is his own disclosure statement and the disclosure statement of coaccused Smt.Raj Rani, but admittedly pursuant to his own disclosure statement neither recovery of any fact or any document was effected in the matter. Therefore, the sole piece of evidence against him is the FSL report. The learned counsel Shri S.L Jain, advocate appearing for this accused has very vehemently argued that FSL report in the matter cannot be the basis of conviction of this accused, as there is no independent corroboration of this report. The learned counsel has relied upon a number of judgments in support of his contention, which I will advert to a little later. It is further argued that the sole basis for chargesheeting the State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 9 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 accused in the matter is his own disclosure statement, which he allegedly made while in police custody, admitting his involvement in this case, which is not admissible in evidence, being hit by Section 25 of the Evidence Act.
20. Per contra, the learned APP has very vehemently argued that through the FSL report (Ex.PW7/A), it has come on record that it was this accused who had forged the IncomeTax Receipt (Mark F) and Ration Card (Mark E), which were used by accused Mithilesh for standing fake surety for an accused in a criminal case. It is next argued that the FSL report conclusively establishes the culpability of the accused in the matter. It is further contented by the learned APP that nonjoining of an independent witness in investigation at the time of taking specimen signatures of the accused is not fatal to the prosecution case, as there is no law which prohibits the IO from obtaining the signatures/specimen handwriting of the accused during investigation. It is further emphasized that there was no requirement under law to have obtained the permission of court before taking the specimen signatures/hand writing of the accused.
21. I have given my thoughtful consideration to the arguments advanced at bar by both the sides and have perused the entire material on record. It is apparent in the matter that false surety bond was filed in the matter in the court, as the documents which were filed alongwith the surety bond were later on found to be false and fabricated.
State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 10 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011
22. Now, coming to the admissibility of FSL report in the matter. This is the admitted case of prosecution that the specimen handwriting/ signatures of this accused were not taken in presence of any independent witness and the permission of the court was also not obtained before taking the same. In case reported as, "109 (2004) DLT 130", titled as, "Rakesh Kumar V/s State", the Hon'ble High Court of Delhi has been pleased to hold that if the specimen signatures/handwriting/thumb impression/finger print impression of the accused are obtained during investigation by IO without the permission of the court, then the same cannot be used against the accused and the report of handwriting expert thereupon would be of no consequences and the same cannot be used to connect the accused with the crime. In this regard, para 17 of the judgment, containing the law on the aforesaid point is reproduced as under:
xxxxx "17. Moreover, the alleged specimen signatures/ handwriting/thumb/finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the I.O without prior permission from the court. Facts in he case of Sukhwinder Singh and Others Vs. State of Punjab, II (1994) CCR 531(SC)=(1994) 5SCC 152, were that specimen handwriting of he appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the tiral and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhwinder Singh (supra).
Therefore, in view of the law laid down by the Supreme Court in the case of Sukhwinder Singh (supra) if follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand, Chandra State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 11 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 Shekhar could not be made use of during the trial. The report of the handwriting expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime".
xxxxx (Emphasis supplied on underlining)
23. Further, in case reported as, "2004 Cr.LJ 242", titled as, "M/s Durga Prasad V/s State of Andhra Pradesh", the Hon'ble High Court of Gujarat has been pleased to hold that if the specimen signatures of the accused were not obtained by the prosecution in presence of Presiding Officer and even if the signatures obtained by the police tally with that of signatures on the said documents, the same cannot be the basis of the conviction of the accused.
24. I have gone through the aforesaid judgments. If the law laid down in the aforesaid judgments is applied to the facts of the present case qua this accused, then it would be apparent that this case solely rests on the circumstantial evidence. It is well settled law by the Apex Court that the principles governing the appreciation of evidence in a case of circumstantial evidence are that each circumstance relied on by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied on by the prosecution must be such as cannot be explained on any hypothesis, except the guilt of the accused. In other words, circumstances must be of incriminating character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 12 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. In order to prove the FSL report against this accused, it was imperative upon the prosecuting agency to have obtained the permission of the court before taking the specimen signatures/handwriting of the accused. The rule of prudence further demands that the specimen signatures should have been taken in presence of some other independent witness.
25. It is well settled law now that it is unsafe to base conviction solely on expert opinion and it has almost become a rule of law (reference judgment reported as, "AIR 2003 SC 282", titled as, "Alamgir V/s State of Delhi"). Therefore, accused Surender is also entitled for acquittal in the matter.
26. As regards accused Mithilesh, the prosecution has categorically proved on record through evidence of PW9 Shri S.S Malhotra (the then learned MM), PW2 ASI Anita to whom the custody of this accused was handed over by PW9, PW4 Inspector Ramesh Chand, who conducted her interrogation and PW11 Inspector Satbir Singh, who also interrogated this accused in the matter that accused Mithilesh impersonated as Smt.Pushpa Devi in the court at that time, presided over by PW9 in case FIR No. 298/2000, U/s 25 Arms Act, PS Model Town for accused Kuldeep and filed documents like IncomeTax Receipt (Mark F), Ration Card (Mark E) and Sale State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 13 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011 Deed (Mark A). All the aforesaid three documents have been found to be false and fabricated. Through the evidence of PW3, Shri G.P Sharma, the prosecution has proved the IncomeTax Receipt (Mark F) to be false and fabricated. Through the evidence of this witness, it has also been proved by the prosecution that there was no property bearing No.916, Gali No.12, Vishwas Nagar, the address appearing on all the three documents. Through the evidence of PW11 (wrongly mentioned as PW11) Shri Dhan Raj Shah, the prosecution has amply proved that that Ration Card (Mark F) was not issued by Food & Supplies Department and it is a false document. Through the evidence of PW5 Shri Agander Singh, the prosecution has amply proved that the Sale Deed (Mark A) filed alongwith the bail bond (Ex.PW9/A) was false.
27. Now, a question arises whether the FSL report Ex.PW7/A, wherein handwriting expert has opined that it was this accused who had affixed her signatures on the Surety Bond (Ex.PW9/A) at three places, can the said report be used as evidence against this accused? Admittedly, the specimen signatures of this accused were also not obtained by police with the permission of any court. The specimen signatures were also not obtained in the presence of any independent witness. For the reasons stated in the preceding paragraphs, FSL report Ex.PW7/A cannot be used against this accused.
State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 14 of 15 FIR No.: 220/2000: PS Subzi Mandi: U/s 420/419/468/471/120 B IPC DOD: 02.08.2011
28. Now, this court has to decided as to for what offences this accused is liable in this matter. The ingredients of Section 419 IPC, i.e cheating by impersonation are proved beyond reasonable doubt against this accused by the prosecution. The prosecution has further proved the ingredients of Section 471 IPC against this accused for having produced forged Bail Bond, Ration Card, Sale Deed and IncomeTax Receipt. The prosecution has, however, not been able to prove charges for offences punishable U/s 120 B IPC and 468 IPC against this accused.
29. Accordingly, accused Mithilesh is convicted only for offences punishable U/s 419 IPC and 471 IPC in this matter and stands acquitted of charges in respect of other offences in the matter.
30. Accused Surender and Smt.Raj Rani are, however, acquitted of all the charges in this case. Their B/Bs stand cancelled, surety(ies) stand discharged. Endorsement(s), if any, either on the documents of surety(ies) or of accused Surender and Smt.Raj Rani be cancelled forthwith.
31. Copy of this judgment be supplied to all the accused persons. Let accused Mithilesh be heard on the quantum of sentence now on 08.08.2011.
Announced in the open court (Vinod Yadav)
on 02.08.2011 Chief Metropolitan Magistrate:
Delhi
State V/s Mithilesh Etc. (Accd. Mithilesh Convicted: Other two Accd.persons Acquitted) Page 15 of 15