Delhi District Court
State vs . Hemant Bhatt & Anr. on 2 January, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Hemant Bhatt & Anr.
FIR No. 282/99
U/s 419/468/471/120B IPC
P.S. Sriniwaspuri
J U D G M E N T
Serial No. of the Case : 107/2/14
Unique Identification No. : 02406R0057782000
Date of Institution : 04.05.2000
Date on which case reserved for
judgment : 15.12.2014
Date of judgment : 02.01.2015
Name of the complainant : Shri Bale Singh
Superintendent, GBSSS,
Hari Nagar, Ashram,
New Delhi.
FIR No. 282/1999
P.S. Sriniwaspuri Page No.1 of 27
Date of the commission of offence : 25.05.1999
Name of accused : (1) Hemant Bhatt
s/o Sh. Govind Singh
r/o H.No.656/20, DDA Flats
Kalkaji, New Delhi.
(2) Sandeep Kumar
S/o Sh. Raj Kumar
R/o F167, Bhagwat Building
Kotla Mubarakpur
New Delhi.
Offence complained of : U/s 419/468/471/109/34 IPC
Offence charged of : U/s 419/468/471/120B IPC
Plea of the accused : Pleaded not guilty.
Final order : Both the accused acquitted.
Date of Institution : 04.05.2000
Date on which case reserved
for judgment : 15.12.2014
Date of judgment : 02.01.2015
FIR No. 282/1999
P.S. Sriniwaspuri Page No.2 of 27
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of one Shri Bale Singh who was the Superintendent at Government Boys Senior Secondary School, Hari Nagar Ashram, New Delhi. On 25.09.1999, accused Hemant Bhatt s/o Govind Bhatt was taking examination of English, 12th class, in place of accused Sandeep Kumar s/o Shri Raj Kumar under Roll No.779183026 of National Open School Examination 1999. Accused Hemant Bhatt was caught taking the same by NOS Flying Squad on round detected a case of impersonation by the complainant and his team and complained to the police station to lodge the present FIR against the accused for taking/writing the paper at the time of detection in place of accused Sandeep Kumar and hence present complaint.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
FIR No. 282/1999 P.S. Sriniwaspuri Page No.3 of 27
3. On the basis of material placed on record, charge was framed against both the accused under Section U/s 419/468/471 IPC read with Section 120B IPC & Section 120B IPC on 03.06.2004 to which both the accused pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as eleven witnesses in order to prove its case.
PW1 Shri Surender Kumar deposed that in the month of October 1999, he had produced accused Sandeep Kumar before the police and gave one ID card and Admit Card in original to the police which was in the possession of accused Sandeep and the same was seized vide Ex.PW1/A and his statement was recorded by the police. Accused Sandeep Kumar was correctly identified by the witness.
During the crossexamination by Counsel for accused Sandeep, PW1 stated that it was correct that accused Sandeep had not appeared in two/three examination papers held before English.
During the crossexamination by Ld. Counsel for accused Hemant Bhatt, PW1 by, he deposed that he was informed by the police that his nephew accused Sandeep was involved in a case at P.S. Sriniwaspuri FIR No. 282/1999 P.S. Sriniwaspuri Page No.4 of 27 and so he had produced him in the month of October before the police. He did not remember the rank and name of the Officer who came to his house and informed him regarding the involvement of accused Sandeep and he did not remember if they had given any particular date to appear. He further stated that he lived in a premises different from the one where accused Sandeep lived but they both were in the same property and according to him the ID card in Sandeep's possession was original and he was informed by the IO that one Hemant was also involved in the incident. Further that he had never seen or met accused Hemant at any point of time and at that time father of accused Sandeep was suffering from Liver and Kidney problem and he was no more. Also, that PW1 was Superintendent in Custom & Central Excise Department and to his knowledge accused Sandeep and Hemant were not in touch at any point of time and no one from the police or any other side approached him.
PW2 Bale Singh (complainant) deposed that on 25.05.1999 while he was posted at Government Boys Sr. Secondary School, Hari Nagar, Ashram as Superintendent and on that day examination of National Open School was conducted by the NOS, accused Hemant Bhatt s/o Shri Govind R/o 656/20 DDA Flats, Kalkaji while taking examination in English of class 12th in place of accused Sandeep Kumar s/o Shri Raj Kumar under the Roll FIR No. 282/1999 P.S. Sriniwaspuri Page No.5 of 27 No.779183026 of NOS, 1999 was caught redhanded by the Flying Squad. He further stated that he called the police and made the complaint Ex.PW2/A and narrated all the facts in his complaint which was written in his handwriting. Also that he had handed over the documents related to examination i.e. ID Card, Enrollment Number, Date of Birth document and statement of accused Hemant Bhatt. Photocopy of ID card is mark A, statement of accused Hemant Bhatt was marked B, the copy of examination sheet was collectively marked C and the documents were seized vide memo Ex.PW2/B. The complaint Ex.PW2/A and Ex.PW2/B were also signed by the complainant. The original statement of accused Hemant Bhatt was subsequently Ex.PW2/C1 and the answer book no.779183026 having a rubber stamp Ex.PW2/C2 was also signed by the complainant. Further that in his presence the ID card of two persons were seized because it was a case of impersonation and the ID card of two persons i.e. accused Sandeep Kumar with No.779183026 and another also with the name of Sandeep with No. 779183026 were identified by the witness. He further stated that going through the judicial file that he had handed over only a photocopy of the ID cards and he did not know the person against whom he had lodged the complaint nor could he identified him as he was not arrested by the police in his presence. He did not recollect if he had pointed out the said person to FIR No. 282/1999 P.S. Sriniwaspuri Page No.6 of 27 police or handed over him to the police as it was the job of the invigilator and he had only lodged the complaint as told by the Flying Squad Director.
During the leading question posed by ld. APP for the State, PW2 stated, if he could identify the person against whom he had lodged the complaint, witness answered that he did not know and could not identify the accused. Thereafter witness was cross examined by Ld. APP for the State on point of identity and denied that he was supporting the accused Hemant Bhatt and was won over by him.
During the crossexamination on behalf of accused Sandeep, PW2 stated that it was incorrect to state that the ID card in original was seized by the IO.
During the crossexamination on behalf of accused Hemant Bhatt, PW2 stated that it was correct that he cannot say what proceedings were done or when the proceedings were done, were against whom and what.
PW3 SI Subhash Malik has deposed that on 25.05.1999 while he was posted at P.S. Sriniwaspuri, complainant Bale Singh had come to P.P. Sunlight Colony and gave his complaint Ex.PW2/A and produced accused Hemant Bhatt and he made the endorsement Ex.PW3/A and got the present FIR Ex.PW3/B registered. Thereafter, he visited the school and recorded the FIR No. 282/1999 P.S. Sriniwaspuri Page No.7 of 27 statement of witnesses and arrested the accused Hemant Bhatt vide Ex.PW3/E and his personal search was conducted vide Ex.PW3/D and interrogated him. He also obtained the specimen handwriting of accused Ex.PW3/C. The accused Hemant Bhatt made his disclosure statement vide Ex.PW3/F. During cross examination by Ld. APP for State, witness has accepted that he had handed over the rukka to Ct. Captain for registration of the present matter and that complainant Bale Singh had handed over to him photocopy of two documents which were seized vide Ex.PW2/B and he could not recollect the same but the details of the same were mentioned in the seizure Memo.
During the crossexamination by counsel for accused Hemant Bhatt, PW3 stated that it was correct that the accused Hemant Bhatt was brought to P.P. Sunlight Colony by the complainant and visited the school and recorded the statement of witnesses. However, he could not tell the names of the witnesses but the same were recorded by him and he also seized the photocopy of documents. Further he stated that he did not know about the original documents but he had received the photocopies and seized the same because the complainant had stated to place the originals at a later stage.
FIR No. 282/1999 P.S. Sriniwaspuri Page No.8 of 27
Opportunity to cross examine PW3 was granted to accused Sandeep Kumar but he did not question anything to witness PW3.
PW4 Balbir Singh Gupta deposed that he did not know the year but it was June 1999 he was on duty at Govt. school, Hari Nagar Ashram as Invigilator for examination of Open School which was being conducted. In his room, another person Shripal Singh was also present. The Director was a Sikh and he did not know the name but the same person had come for checking in every room and in his room one person was found impersonating another and was apprehended. He could not identify the accused due to lapse of time and stated that his signatures were obtained on documents by superintendent of school and again said that the same were obtained by police official. During leading question put by Ld. APP for the State, witness stated that he had signed documents but the same were not on the judicial file and upon being asked as to who had impersonated whom, he answered that it was either Bhatt or Sandeep but he cannot tell specifically.
During cross examination by Ld. APP for State, witness stated that police interrogated him and his statement was recorded by police and it was correct that the day of duty was 25.05.1999 and the name of the Director was Preet Pal Singh. Further on being asked, if he had stated in his statement that one Hemant Bhatt was found impersonating as examinee for FIR No. 282/1999 P.S. Sriniwaspuri Page No.9 of 27 another Sandeep Kumar, PW4 answered that he did not recollect the same as the incident had taken place in the year 1999 and he could not identify the accused due to lapse of time.
During the crossexamination by counsel for accused Hemant Bhatt, PW4 stated that apart from him and Shripal, no one was present from the office of school and Directorate of Examination. It was correct that he cannot say who was impersonating whom.
Opportunity to cross examine PW4 was granted to accused Sandeep Kumar but he did not question anything to witness PW4.
PW5 SI Murari Lal deposed that on 18.07.1999 while he was posted at Sriniwaspuri, the investigation of this case was handed over to him by SHO and on 01.10.1999 one person namely Sandeep appeared at PP in pursuance of the notice served upon him and he was inquired about the matter and PW5 correctly identified the accused Sandeep (the document of arrest of accused Sandeep Kumar was not available on record). He further deposed that accused Sandeep was produced before the Court and was released on the same day. He prepared the challan and handed over the same to SHO. He had not prepared any other document.
During the crossexamination by Ld. APP for the State, PW5 stated that it was correct that statement of IO is not required to be made FIR No. 282/1999 P.S. Sriniwaspuri Page No.10 of 27 u/s 161 Cr.PC and that seizure memo Ex.PW1/A was prepared by him and the photocopy of the documents Mark A1 to A17 were not seized by him during investigation. (Initially, PW5 stated that it was brought on record by previous IO). Further it was correct that the accused Sandeep made his disclosure statement Ex.PW5/A recorded by him and that the notice of arrest and personal search of accused Sandeep were on record and were Ex.PW5/B1 and Ex.PW5/B2. Also that it was in his knowledge that specimen handwriting in questioned documents were collected during investigation by previous IO Subhash Malik and deposited by him and were marked B (colly). Witness was confronted with specimen handwriting documents of accused Hemant Bhatt which were S4 to S8 collected by him with report of GEQD. The same were Ex.PW5/C1 to PW5/C5. The document S1 to S3 were not brought by him and the same were brought by Subhash Malik and it was admitted by the witness that the document S9 to S17 were collected by him and were Ex.PW5/C6 to Ex.PW5/C12. Further that he had involved accused Hemant Bhatt in the investigation and accused Hemant Bhatt was present in the Court.
The crossexamination of PW5 was deferred at request of Counsels for both the accused but he was never called in the witness box for the same.
FIR No. 282/1999 P.S. Sriniwaspuri Page No.11 of 27
PW6 Chander Kanta Makhija deposed that she did not remember the exact date or the month but the incident happened in the year 1999 and at that time she was on duty in one Govt. school at Siddharth Extension, the address she did not remember. The examination was going on when flying squad of Vigilance came and apprehended one person who was impersonating the candidate and the paper of that person was seized and the proceedings were conducted by then Superintendent in her presence. She did not remember if her signatures were obtained on any document and she was unable to identify the person who was impersonating due to lapse of time. Further the name of the person who was caught was Hemant and she was able to state this because she had gone through her statement before deposing.
During cross examination of PW6 by Ld. APP for the State on point of identity of accused Hemant she has deposed that she was unable to identify the accused.
During the crossexamination of PW6 on behalf of both accused, she stated that she did not know the name of the officer who had done the proceedings when many children were apprehended by the flying squad and it was correct that document Mark C, Mark B, the originals were not on record and it was admitted that on the answer sheet, first page where FIR No. 282/1999 P.S. Sriniwaspuri Page No.12 of 27 serial no.719609 is mentioned with Roll No.779183026 with name Sandeep Kumar signature of Examiner or signature of Head Examiner, Team Leader are not there and the column is blank at point A and B. Further that document Mark B does not bear signature of PW6 as she did not know who was the team leader, examiner and head examiner at the time of apprehension of impersonator and lastly that the police had met her only once after the day of incident.
PW7 Ct. Ram Saran has deposed that on 01.10.1999 while he was posted at PP Sunlight Colony. On that day, he alongwith ASI Murli Lal was in the investigation of the present matter and one person namely Sandeep s/o Sh. Raj Kumar was arrested and his personal search was conducted and specimen handwriting was obtained. Accused Sandeep was correctly identified by PW7. His statement was recorded u/s 161 Cr.P.C by IO and he signed Ex.PW5/B2.
During cross examination by Ld. APP for the State, PW8 stated that it was incorrect that his statement was recorded by IO u/s 161 Cr.P.C on 05.03.2000 but admitted the statement mark X. Further that he had not signed the document of specimen handwriting/signature of accused Sandeep.
During the crossexamination by counsel for both the FIR No. 282/1999 P.S. Sriniwaspuri Page No.13 of 27 accused, PW7 stated that it was incorrect to state that he never joined the investigation of the present FIR.
PW8 Ct Kaptan Singh deposed that on 25.05.1999 while he was posted at PP Sunlight Colony, at around 01:15pm one person whose name he did not remember, claiming himself as Superintendent came alongwith one person namely Hemant (accsued was not identified). Statement of Superintendent was recorded and IO endorsed the same vide Ex.PW3/A and handed over the same to him for registration of the FIR. Copy of FIR was Ex.PW3/B and same was handed over to IO by PW8. IO recorded his statement u/s 161 Cr.P.C and that he had gone through the same after it was reduced in writing.
During the crossexamination by Ld. APP for the State, PW8 stated that he has been appearing as a witness for the past 10 years and he has never been declared hostile by the prosecution before and it was incorrect that he has stated in his statement before IO that complainant had handed over some documents which were seized by IO and the statement dated 25.05.1999 was mark Z, however, PW8 admitted the contents of his statement Mark Z. The document which is seizure memo of photocopy of documents and was Ex.PW2/B was also signed by him and it was admitted by PW8 that the specimen handwriting of one Hemant Bhatt is Ex.PW3/C, FIR No. 282/1999 P.S. Sriniwaspuri Page No.14 of 27 disclosure statement of Hemant bhatt is Ex.PW3/F, Personal Search of accused Hemant Bhatt is Ex.PW3/D and all these documents were signed by him. However, PW8 did not identify the accused Hemant Bhatt.
During cross examination of PW8 on behalf of both the accused, PW8 stated that he did not know as to what papers were taken but one application was given by SI Subhash Malik when he had gone for registration of the case.
PW9 Shripal Sharma deposed that on 25.05.1999 while he was performing his duty alongwith Sh. Balbir Singh, PGT Sanskrit as an invigilator in Room no.16 of Govt. Boys Sr. Sec. School, Hari Nagar, Ashram and all students were giving their exams, we in the meanwhile a flying squad of National Open School reached there and upon checking of the students by checking of photograph, they took a boy to the office of superintendent which witness could not identify.
During the crossexamination, PW9 by Ld. APP for the State on point of identity, PW9 stated that police had not recorded statement Ex.PW9/A from point A to A and denied the contents of the same, being read over to the witness. PW9 further stated that he was unaware if the flying squad had taken the documents in this regard, in his presence and he was further unaware if the staff has prepared the complaint against the accused FIR No. 282/1999 P.S. Sriniwaspuri Page No.15 of 27 and had handed over him to superintendent of the school GBSSS and the FIR was registered on the complaint of Bale Singh.
Opportunity to cross examine PW9 was given to both the accused but they did not question anything to witness.
PW10 Preet Pal Singh deposed that he did not remember the date of incident but he remember of the flying squad constituted for checking in examination and he never reached any school at Hari Nagar Ashram and did not remember anything regarding the present matter.
During the crossexamination of PW10 by Ld. APP for the State, he stated, that he cannot tell if he had visited the Govt. Boys Sr. Secondary School, Hari Nagar on 25.05.1999 and the witness was declared hostile by Ld. APP.
During the cross examination of PW10 by Counsel for accused Hemant Bhatt PW10 stated that he did not know whether he had reported to the superintendent Bale Singh of GBSSS School to record the complaint of impersonation of any Hemant Bhatt or Sandeep Kumar and he did not know whether on 25.05.1999 he had gone to the aforesaid school as a flying squad being a Regional Director.
During the cross examination of PW10 by Counsel for accused Sandeep Kumar, PW10 deposed that he did not know whether he FIR No. 282/1999 P.S. Sriniwaspuri Page No.16 of 27 had reported to the superintendent Bale Singh of GBSSS School to record the complaint of impersonation of any Hemant Bhatt or Sandeep Kumar and he did not know whether on 25.05.1999 he had gone to the aforesaid school as a flying squad being a Regional Director.
PW11 Ms Deepa Verma, Dy. Director FSL, Rohini deposed that on 21.01.2000. the documents of present FIR no.282/99 was received vide request letter dated 18.01.2000 for examination and opinion. The questioned documents were marked as Q1 to Q8 and the standard writing was marked S1 to S8, A1 and S9 to S17, A2 and A3. She compared the documents using various scientific aids and furnished her report no.FSL 2000/D 0143 dated 29.01.2001 and her opinion was at point I and II with detailed reasons. The report was Ex.PW11/A During the crossexamination on behalf of accused Hemant Bhatt, PW11 stated that she did not remember whether she had received the documents in sealed condition or in open condition and she did not remember the name of the person who had sent request to the Lab and that like all other sciences, it is a progressive science and she would not agree that it is a probable science. Further the conclusion is drawn regarding authorship are based on significant data available in both sets of writing and her opinion Ex.PW11/A was a conclusive one and she cannot comment on whether the FIR No. 282/1999 P.S. Sriniwaspuri Page No.17 of 27 handwriting science is a corroborative science and her opinion did not require any litmus paper test. Further, she had no personal knowledge about the contradictory opinion of different private, as well as government experts expressed, on any of the documents examined, and it was correct that after good practice, a forger may try to give pictorial similarity, to some of the characters but cannot copy the fundamental writing, habits of the real person. The role of intenser muscle was not the part of any her examination and therefore she would not comment on it as she had not examined the coordination of writing muscles and that she had prepared the rough notes before giving the final report which she had destroyed later and the rough notes are never preserved in the file. Also that she had given dictation for typing of the report with the help of rough notes and no intimation regarding destruction of rough notes was given to the higher authorities. The name of instruments have already been mentioned in her report Ex.PW11/A and it was correct that individual identification of handwriting/sign cannot be based only on general writing habits and she had no personal knowledge as to where and when the writings were taken and if a person is forced to copy the existing writings, the quality of those writings may vary from person to person.
During cross examination of PW11 by Counsel for accused Sandeep, she has deposed that the admitted writings which were considered FIR No. 282/1999 P.S. Sriniwaspuri Page No.18 of 27 for opinion were provided to them by the investigating agencies and thereafter accused had adopted the cross examination done on behalf of accused Hemant.
5. After completion of all the prosecution evidence, prosecution evidence was closed and statement of the accused persons as mandated by Section 313 r/w 281 Cr.P.C was recorded and all the incriminating circumstances came in evidence put to both the accused for explanation. Accused Hemant Bhatt stated that he was not appearing in the examinations due to some scuffle outside the examination centre and he was falsely implicated in the present matter and led defence evidence. Accused Sandeep stated that he had not appeared in the alleged examination on 25.05.1999 due to confusion of date of examination and mixing up of Arts and Science side papers on 24.05.1999 and the papers held on 14.05.1999 and 15.05.1999 were common to both the streams and led defence evidence.
6. Accused examined three defence witnesses in their defence evidence.
(In the present matter, witness Surender Kumar and Pankaj Jagota have been both given same number as DW2 and for the sake of convenience witness Pankaj Jagota shall be read as DW2A) FIR No. 282/1999 P.S. Sriniwaspuri Page No.19 of 27 DW1 Varun Madan has deposed that on 25.05.1999 his result of 12th standard was to be declared and he alongwith accused Hemant were going to his friend's house at Nehru Nagar and after deboarding at Lajpat Nagar bus stand, they were walking towards Nehru Nagar and while they were crossing the road, one vehicle passed at a fast speed and was about to touch Hemant and when they shouted at the driver, accused Hemant was abused by the driver of the vehicle who slapped accused Hemant and started abusing him. Meanwhile 23 persons came there and said that they would take him to hospital and DW1 ran away from the spot while driver and another person forcefully made accused Hemant to sit in the vehicle.
During cross examination by ld. APP for the State, DW1 deposed that it was correct that he had not made any complaint to the police in this regard and that accused Hemant was his school friend. Upon being posed a Court Question DW1 stated that he had never intimated to any family member of accused Hemant regarding the incident narrated by him.
DW2 Surender Kumar deposed that he came to know from the IO when he visited his house that his nephew was involved in a case and so he brought him to P.S. and made accused surrender on 01.10.1999 and also submitted his original ID card which was with them. After that, the accused, his nephew was arrested and accused had written some sentences in FIR No. 282/1999 P.S. Sriniwaspuri Page No.20 of 27 English. Also that he had stated that his nephew was not involved in the case and that he has not appeared in two subjects because of the mismatch of the subjects taken by him and that there was no occasion for the accused to tell someone else to appear for him in English. The examination had started on 14.05.1999 and he has appeared in Maths and English examination and due to mismatch of subjects, he did not appear on 17.05.1999 and 20.05.1999 for Political Science and History. Further, accused had not appeared for Physics test on 24.05.1999 as his name was not there. Thereafter, DW2 submitted the date sheet of the exam. Further the fact regarding non appearance in History, Political Science and Physics could be verified from National Open School, Kailash Colony.
(Examination in chief of DW2 was deferred and thereafter witness was never called by accused).
DW2A Shri Pankaj Jagota (Office Assistant, Examination Branch, National Institute of Open Schooling deposed that accused Sandeep Kumar had appeared in Sr. Secondary examination in month of May 1999 from NIOS bearing Roll No.779183026 and the roll numberwise gazette in respect to same was Ex.DW2/A. As per the same, accused Sandeep Kumar had appeared in the examination on 14.05.1999 in Mathematics (Subject code311) on 15.05.1999 in Hindi Exam. (subject code301). Accused Sandeep Kumar was absent for examination of political science FIR No. 282/1999 P.S. Sriniwaspuri Page No.21 of 27 (subject code317) held on 17.05.1999 and examination of History (subject code315) held on 20.05.1999. On 25.05.1999 in the examination of English (subject code302) it was marked 'result withheld' (RW). Accused Sandeep Kumar was also absent in examination of Biology (subject code314) held on 27.05.1999.
During crossexamination by Ld. APP for the State, DW2A stated, he had no personal knowledge in respect to the present matter and the document Ex.DW2/A was not tampered.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
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 imprisonment for a term of two years or upwards, shall, where no express provision is 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.FIR No. 282/1999 P.S. Sriniwaspuri Page No.22 of 27
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]
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that accused Hemant Bhatt had FIR No. 282/1999 P.S. Sriniwaspuri Page No.23 of 27 impersonated accused Sandeep Kumar and had taken the examination of National Open School conducted on 25.05.1999 and both the accused had committed the same with criminal intent and the same was committed in connivance with each other by creating forged and false document i.e. ID card and roll number. Ld. APP has further argued that minor discrepancies in the deposition of witnesses does not caste any shadow in the story of prosecution as the FSL report and the extra judicial confession recorded of accused Hemant Bhatt by complainant PW2 clearly exhibits the criminal intent of both the accused, therefore, they are liable to be convicted.
9. On the other hand, the Ld. Counsel for the accused Hemant Bhat has argued that the prosecution has failed to establish its case since the prosecution witnesses have not proved any relation between two accused and the accused has been falsely implicated in this matter and all the witnesses examined by prosecution have give contradictory statement which caste shadow on the story of prosecution and none of witnesses have identified the accused during their testimony before the Court. Further eye witnesses examined by the prosecution have not supported the case of the prosecution.
Ld. Counsel for accused Sandeep Kumar has argued that FIR No. 282/1999 P.S. Sriniwaspuri Page No.24 of 27 nothing incriminating has come on record against him and the allegations leveled against him regarding impersonation is not proved as the prosecution has failed to establish whether the accused Sandeep Kumar had given any authority or consent to accused Hemant Bhatt to sit in his place in the aforesaid examination and also the defence evidence led by the accused Sandeep Kumar clearly establishes that the accused had not appeared in many of his examination before the alleged date of incident which shows his clear intention that he had not committed the offence. He further argued that the story of the prosecution is full of contradiction and does not establish the guilt of the accused beyond reasonable doubt and therefore, accused Sandeep Kumar is liable to be acquitted.
10. I have heard Learned Counsels for both the accused and have gone through the written submissions filed on behalf of both the accused. I have also heard Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
11. The present incident had occurred on 25.05.1999 and eventually chargesheet for same was filed after a year on 04.05.2000 and the FIR No. 282/1999 P.S. Sriniwaspuri Page No.25 of 27 trial of the same took about 15 years to conclude. In the present matter, the prosecution has examined as many as 11 witnesses and the most glaring part of the trial observed is that most of the prosecution witnesses examined have been crossexamined by the prosecution itself. Further, the complainant including the eye witnesses PW2, PW4, PW6 & PW9 have been cross examined by prosecution and none of the prosecution witnesses have identified the accused at any point. The star witness of prosecution PW2 who was also the complainant in this case and is alleged to have produced the accused before the police official have denied the same. Apart from the public witness, the police witnesses PW3, PW5, PW7, PW8 have been cross examined by prosecution and they have not supported the prosecution which castes a serious doubt on the story of prosecution and in my view does not establish the case of the prosecution beyond reasonable doubt.
12. The argument of the Ld APP that the same has been established if the FSL report is perused holds no water as the conviction cannot be based solely on the extra judicial confession and the FSL report when the witnesses examined by the prosecution have given contradictory statement and have no where corroborated the story of prosecution, therefore, to my mind, the prosecution has failed to establish the case beyond FIR No. 282/1999 P.S. Sriniwaspuri Page No.26 of 27 reasonable doubt.
13. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
14. In view of above discussion, both the accused persons are acquitted of offences punishable U/s 419/468/471 IPC read with Section 120B IPC & Section 120B IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 02.01.2015 MM10 (SouthEast): Saket Courts:
New Delhi:02.01.2015
FIR No. 282/1999
P.S. Sriniwaspuri Page No.27 of 27