Delhi District Court
Cbi vs . Bhagwan Prasad on 27 January, 2023
IN THE COURT OF SH. DEEPAK KUMAR-II, ACMM-2 CUM ACJ,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
CBI Vs. Bhagwan Prasad
Case No. : Cr. Case No. 84/2019
FIR No. : RC-DAI-2010-A-0003
U/s : 420/471 IPC
Name of Branch : ACB/CBI/Delhi
JUDGMENT
a) Unique Case ID No. : 02401R0169782010
b) The date of commission of the
offence : 08.01.2010
c) Name of the Complainant : Source Information
d) Name, parentage & address
of accused : Bhagwan Prasad S/o Ram
Pravesh Mahto, R/o C-2/115,
Nangli Vihar Extn.,
Najafgarh, Delhi
Permanent R/o Village
Maulna Pur, PO & PS
Shobhey Pur, District
Saran, Bihar
e) Offences complained of : 420/471 IPC
f) The plea of the accused : Pleaded not guilty
g) Final Judgment : Acquittal
h) Date of institution of case : 26.04.2010
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i) Date of Judgment : 27.01.2023
Brief Statement of Reasons for Decision
1. Accused Bhagwan Prasad is facing trial for the commission of offences under section 420/471 IPC. The present case was registered against the accused on the basis of source information with the allegation that he had used forged scheduled tribe certificate for his candidature as ST candidate to get appointment as an Assistant Pump Driver in Delhi Jal Board reserved for the ST category candidate.
2. Factual matrix of the prosecution case in brief is that on 26.05.1992, accused joined Delhi Jal Board as Assistant Pump Driver under ST category by using forged ST certificate no. 104/85 dated 03.05.1985 purportedly issued in his favor from the office of District Welfare Officer, Chhapra (Saran), Bihar and forged ITI Certificate and marksheet bearing no.s 02978 and 32796 respectively in the trade of wireman purportedly issued by ITI, Marhaura, Bihar. It has transpired during investigation that accused did not belong to Kharia caste as mentioned in the ST certificate nor he had completed his technical education from ITI, Marhaura, Bihar as mentioned in the marksheet and the certificate.
3. On the basis of the aforesaid facts and evidence collected during investigation, charge sheet was filed against the accused for the commission of offences under Section 420/471 IPC. Accordingly, Ld. Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 2 of 24 Predecessor of this court took cognizance and summoned the accused for facing trial. In compliance of Section 207 Cr.P.C, copy of charge sheet and relied upon documents were supplied to the accused.
4. Charge for commission of offences under Section 420/471 IPC was framed against the accused on 11.09.2013, to which he pleaded not guilty and claimed trial. In order to prove the case against accused, prosecution has examined as many as twelve witnesses.
5. PW-1 Rita Sahni exhibited the personal file and service book of accused as Ex. PW1/A which contains the documents pertaining to him on which his photograph was affixed from point 'X' to 'X1' and the same was exhibited as Ex. PW1/B; joint declaration of accused from point 'X' to 'X1' on Ex. PW1/A was exhibited as Ex. PW1/C; entry relating to last basic pay of the accused was exhibited as Ex.PW1/D. Accused was correctly identified by this PW. This PW was not cross examined on behalf of accused despite opportunity being afforded to him.
6. PW2 Prakash Chander exhibited note sheet regarding vacancy position pertaining to SC/ST candidates for direct recruitment as Ex. PW2/A; detailed written note prepared by Sh. H.V. Tandon was exhibited as Ex. PW2/B(colly); copy of the APD promotion/recruitment main file was exhibited as Ex. PW2/1 (colly); note approved by Ashok Kumar, IAS, the then Additional Commissioner (Water) was exhibited as Ex. PW2/C; requisition letter which was sent to Employment Exchange regarding the present matter was exhibited as Ex. PW2/D; circular issued Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 3 of 24 by the department regarding calling the eligible employees for the said posts was exhibited as Ex. PW2/E; note regarding receipt of list of 47 names from Local Employment Exchange was exhibited as Ex. PW2/F, composition of selection committee as approved by Sh. Ashok Kumar, IAS, the then Additional Commissioner (Water) mentioned in note was exhibited as Ex. PW2/G; letter dated 24.10.94 requesting for giving suitable date and time for convening the meeting of selection committee was exhibited as Ex. PW2/H; letter dated 25.10.94 regarding informing the date of the meeting of selection committee was exhibited as Ex. PW2/J; minutes of meeting dated 08.11.1994 was exhibited as Ex. PW2/K and as per those minutes of meeting, accused Bhagwan Prasad was selected against ST quota for the post of APD; letter dated 08.11.94 alongwith minutes of meeting forwarded to this PW was exhibited as Ex. PW2/L; office note seeking approval of the minutes of meeting was exhibited as Ex. PW2/M; office note dealing with the issue and as approved by Sh. Ashok Kumar, IAS, the then Additional Commissioner (Water) was exhibited as Ex. PW2/N; memorandum dated 01.12.94 regarding medical examination of the selected candidates was exhibited as Ex. PW2/O; office note regarding the list of selected candidates having the name of the accused at Sr. No. 1/1 was exhibited as Ex. PW2/P; appointment order no. 35 (DIST) dated 22.02.95 having the name of accused at Sr. No. 1 was exhibited as Ex. PW2/Q and the said order is also available on the personal file/service book of the accused and same was exhibited as Ex. PW2/R. This PW was not cross examined on behalf of accused despite opportunity being afforded to him.
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7. PW- 3 Surya Narayan Singh deposed that he retired from the post of Additional District Magistrate in the year 2014. He further deposed that during the year 2010, he was posted as District Welfare Officer, Saran Chhapra. He deposed that his duty was to issue caste certificate, distribution of scholarship to students and other miscellaneous work assigned to him by District Magistrate. He further deposed that document D-3 i.e. caste certificate dated 03.05.85 in the name of accused Bhagwan Prasad, marked as Mark 'A' was not issued from the office of District Welfare Office, Saran, Chhapra and in the certificates issued by the office of District Welfare Officer, District Welfare office is always mentioned which is not there in Mark 'A'. He also deposed that caste Kharia is not residing in District Saran, Chhapra. He identified the content of the document D-10 which is the handwritten letter bearing no. 247 dated 16.03.2010 addressed to Sandeep Gautam, IO of the present case as Ex. PW3/A. He deposed that vide Ex. PW3/A he had informed the CBI that caste certificate Mark 'A' was not issued by the Office of District Welfare Officer, Saran, Chhapra.
8. In his cross examination on behalf of accused, he deposed that he was not associated with the office of District Welfare Officer, Saran, Chhapra, Bihar in the year 1985 as he was posted with the Central Government. He further deposed that there is no existence of the Kharia caste in District Saran, Chhapra, Bihar, hence, the question of maintaining the ST caste certificate issuance register does not arise and therefore, it was not being maintained; document D-3 which is the caste certificate of the accused was not issued from the office of District Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 5 of 24 Welfare Officer, Saran, Chhapra, Bihar. He denied that Kharia tribe is found in District Saran, Chappra, Bihar or in the present Bihar after its bifurcation. He deposed that Kharia tribe was found in erstwhile South Bihar, which is now Jharkhand; he do not remember the name of his dealing assistant, who had written Ex. PW3/A.
9. PW-4 Mohd. Idris Umair exhibited the requisition form as Ex. PW4/A(OSR); attested copy of circular as PW4/B (OSR); attested copy of notesheet in respect of constitution of Departmental Selection Committee as Ex. PW4/C. In his cross examination, nothing material came on record.
10. PW-5 M. P. Arya deposed on the lines of PW2 Prakash Chander and PW4 Mohd. Idris. In his cross examination, nothing material came on record.
11. PW-6 Rakesh Kumar deposed that in the year 2010, he was posted as Junior Engineer under Executive Engineer (E&M) W&S/South West, New Delhi. He correctly identified the accused Bhagwan Prasad and deposed that the accused was working as Assistant Pump Driver at Palam Area, Delhi. He also correctly identified photograph of accused on page 19/C at point 'A' as Ex. PW6/A on Ex.PW1/A (colly). This PW was not cross examined on behalf of accused despite opportunity being afforded to him.
12. PW-7 Raja Gopalan deposed that in the year 2010, he was posted Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 6 of 24 as Sr. Investigating Officer, Vigilance Department, Delhi Jal Board and he had conducted the departmental inquiry in respect of accused regarding verification of his caste certificate on the basis of which he had secured the post of APD (Assistant Pump Driver) in DJB under ST quota. He had handed over the personal file, service book and original Schedules Tribe Certificate of accused to SI Sandeep Gautam, CBI, ACB, Delhi through seizure memo dated 09.02.2010 which is exhibited as Ex. PW7/A. After seeing the personal file already exhibited as Ex. PW1/A (colly), he deposed that at the time of appointment, accused had submitted the attested copies of ITI Certificate bearing no. 02978 and Caste Certificate bearing no. 104/85 dated 03.05.1985. After being shown the copy of main recruitment file for the period 1992 to 1995 regarding APDs appointment/promotion, he deposed that as per the notesheet (29/N) already exhibited as Ex. PW2/P, accused Bhagwan Prasad was selected for the post of Assistant Pump Driver. He further identified the documents which were already exhibited as Ex. PW4/D i.e. acceptance of offer of appointment for the post of APD of accused in Delhi Jal Board; Ex. PW1/B i.e. the medical fitness certificate of accused on which photograph of accused is pasted at point 'X' to 'X1'; original caste certificate bearing no. 104/85 dated 03.05.1985 in the name of accused already Mark 'A' was exhibited as Ex. PW7/B. In his cross examination, nothing material came on record.
13. PW-8 Mohd. Rashid Alam deposed that he was working as District Land Acquisition Officer in Kishan Ganj, Bihar. He deposed that in the year 2010, he was Block Development Officer at Parsa, District Saran, Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 7 of 24 Bihar, which was within his jurisdiction. He further deposed that he knows one Sh. Arvind Rai, Head (Sarpanch) of Village Molan Pur at that time. He also deposed that CBI officials had came to District Saran, Bihar in the year 2010 and inquired from him and Arvind Rai about the caste of accused; Arvind Rai informed them that accused Bhagwan Prasad belong to Village Molan Pur. He further deposed that Arvind Rai told CBI that as per Revenue record, Kharia caste does not fall in the category of ST. He also deposed that being BDO, he knew that Noonia caste falls in backward category. A letter dated 31.03.2010 was exhibited as Ex. PW8/A. He further identified his signatures at point 'A' of Ex.PW8/A. Inquiry was conducted by revenue karamchari and on the basis of that he gave information as mentioned in letter Ex. PW8/A. He had also annexed the photocopy of that inquiry report alongwith his letter already exhibited as Ex. PW8/A and same was marked as Mark PW8/A.
14. In his cross examination, he denied that Kharia caste falls in ST category and is found in District Saran; he had no knowledge about any notification of Bihar government as per which Kharia caste was shown under ST category; he had no knowledge whether Kharia caste was also known as Agariya, Bind, Beldar, Noonia, Kharwat etc.; he is not aware of the present status of Kharia/Noonia caste.
15. PW-9 Anil Bisht deposed that in the year 2009, he was posted as an Inspector, ACB, Delhi. He further deposed that during the investigation, he seized one file related to the appointment of Assistant Pump Driver from the office of Delhi Jal Board, which was handed over to him by an Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 8 of 24 official namely Gopalan. He further deposed that Sh. Sandeep Gautam had approached him in the investigation of the present case and he handed over the attested copy of the aforesaid file along with seizure memo to him. The production cum seizure memo was exhibited as Ex. PW9/A. He also identified his signatures at point 'X' and 'Y'. He further identified the signature of Mr. Gopalan at point 'Z'. This PW was not cross examined on behalf of accused despite opportunity being afforded to him.
16. It is trite to mention here that deposition of PW-10 Diwakar Singh was recorded by way of commission on 22.02.2020. PW10 Diwakar Singh deposed that he was on deputation in the office of District Welfare Officer at Government of Bihar (Saran) for six months; his duty was to verify the correctness/genuineness of any certificate issued by District Welfare Office; he had compared the caste certificate of accused with the caste certificate issuing register and had found that no caste certificate had been issued by his office in the name of Bhagwan Prasad; he prepared the report and submitted to CBI Inspector; on being shown caste certificate bearing no. 104/85 dated 03.05.85 already exhibited as Ex. PW7/B and report bearing no. 247 dated 16.03.2010 handed over by him to the CBI officials as Ex. PW3/A. He identified the signatures of Surya Narayan Singh, the then District Welfare Officer, Saran, Chhapra at point 'B' of Ex. PW3/A.
17. In his cross examination he deposed that he had not prepared the report Ex. PW3/A without checking the caste certificate issuing register; Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 9 of 24 that District Welfare Officer had not verified the caste certificate issuing register personally and had not signed the caste certificate in his presence; he had no knowledge about the gazette notification of the District of Saran of year 1961 wherein Kharia caste was shown under ST category.
18. PW-11 Sandeep Gautam deposed that in the year 2009, he joined as Sub Inspector in CBI, ACB, Delhi and present case was assigned to him for investigation in the year 2010. He further deposed that he conducted investigation of the case and after completion of the same charge sheet was filed against the accused. He also deposed that the investigation in the present case was assigned to him by the then SP Sh. N.M. Singh, vide endorsement Ex.PW11/A. He identified the signatures of Sh. N.M. Singh at point 'A' on Ex.PW11/A. He collected the relevant documents from Sh. Raj Gopalan, Sr. Investigating Officer, Delhi Jal Board vide seizure memo dated 09.02.2010 already Ex.PW7/A. He further deposed that he had also seized the original mark sheet issued by Principal, ITI, Marhaura, District Saran, Bihar and original certificate bearing no. 02978 issued in the name of the accused by the Secretary, National Counsel for Training vide production cum seizure memo Ex. PW11/B bearing his signatures at point 'A.
19. In his cross examination he deposed that he had visited the District Saran accompanied with some other CBI official but unable to recollect his name; he do not remember the name of government official with whom he met at District Saran for verification of certificate of the Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 10 of 24 accused. He further deposed that he do not remember as to whether the concerned officials had handed over the verification report to him in person or through post; official of DM office had checked the record and register which was used to maintain the record of issuance of certificate and he was informed that this certificate was not issued from their office; they had provided him the certified copy of the relevant pages of the register; he had not seized the caste certificate issuing register; he do not remember whether he had personally checked the caste certificate issuing register.
20. Thereafter, PE was closed on 10.12.2021. Statement of accused was recorded under section 313 CrPC on 18.12.2021. Consequently, accused examined Mahender Prasad as DW1 in his defence evidence.
21. DW-1 Mahender Prasad deposed that accused belongs to his neighbouring village and that they both belong to the same area; accused belongs to Noonia Kharia caste; Noonia caste is also known as Kharia and name of the caste is derived from the profession of extracting salt and making khara soda.
22. In his cross examination, he deposed that since he and accused belongs to same area, therefore, he knows that accused belongs to Noonia @ Kharia caste. He denied that Noonia caste is not found in District Saran.
23. Ld. Counsel for the accused had submitted the following Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 11 of 24 documents in his defence on 22.04.2022, which were taken on record as under :-
(i) Copy of Census of India, 1931 (5 pages) Ex. DX1.
(ii) Mungeri Lal Backward Commission Report, Government of Bihar
(4 pages) Ex. DX2.
(iii) Letter no. 373 dated 31.12.1984 of Welfare Department,
Government of Bihar (7 pages) Ex. DX3.
(iv) Census 1961, District Census Handbook Saran (6 pages) Ex. DX4.
(v) Census of India, 1961 (Volume-I) (4 pages) Ex. DX5.
24. After recording of deposition of DW1 and taking the documents of defence on record, DE was closed on the same day i.e. 22.04.2022 and matter was listed for final arguments.
25. On 07.06.2022 when matter was at the stage of final arguments, an application under section 311 CrPC was moved by the prosecution seeking summoning of PW Sudarshan Prasad. Copy thereof was supplied to the accused. Arguments on the application were heard on 07.07.2022 and vide order dated 21.07.2022 it was allowed and one last and final opportunity was granted to CBI for examining PW Sudarshan Prasad. Furthermore, on 01.09.2022, another application was filed on behalf of prosecution under section 284 CrPC seeking examination of PW Sudarshan Prasad through commission. However, on 01.10.2022, it was submitted on behalf of CBI that PW Sudarshan Prasad has already expired in the month of August 2022. Vide order dated 20.10.2022 PW Sudarshan Prasad was dropped from the list of witnesses after perusing Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 12 of 24 his death verification report. Thereafter, the matter was fixed for addressing of final arguments. However, on 16.11.2022, another application under section 311 r/w 91 CrPC seeking summoning of Sh. Deepak Kumar, Principal, ITI, Marhaura, District Saran, Bihar alongwith production of relevant record from the year 1986 to 1988 was moved by the prosecution. Copy thereof was supplied to the accused. Arguments on the application were heard on 19.11.2022 and on the same day it was dismissed by this court. Thereafter, matter was again listed for addressing of final arguments.
26. On 25.11.2022, final arguments were heard extensively on behalf of parties to the matter. After that, matter was fixed for pronouncement of judgment. On 01.12.2022 this court received an order of the same date passed by Ld. Revisional Court in the matter tilted as CBI vs Bhagwan Prasad being CR. No. 40/2022 vide which this court was directed not to pass final judgment. Vide order dated 07.12.2022, Ld. Revisional Court was pleased to set aside the order dated 19.11.2022 passed by this court and directed this court to summon the witness Sh. Deepak Kumar, the present Principal of ITI, Marhuara, Saran, Bihar alongwith original records who can prove the documents mentioned in the list of documents i.e. D-8, D-9 and D-11 and it was further directed that in the event of PW Deepak Kumar, Principal, ITI being not available due to any reason including transfer, illness etc then in that case to examine any other witness.
27. Accordingly on 15.12.2022, Vikas Kumar was examined by Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 13 of 24 CBI/Prosecution as PW-12 and he deposed that he was posted as Instructor (Mechanic) at ITI, Marhaura, Saran, Bihar since the year 2010 and presently Sh. Deepak Kumar is the Principal at ITI Marhaura, Saran, Bihar and due to illness, Sh. Deepak Kumar could not come and therefore, he deputed two persons namely Sh. Vikas Kumar and Sh. Kishori Chaudhary to appear before this court. Vikas Kumar had filed on record Letter no. 831 dated 13.12.2022 issued by Sh. Deepak Kumar, Principal, ITI Marhaura, Saran, Bihar authorizing him to depose before this court and certified copy of 'C' Form for the year 1986 to 1988. He identified the signatures and stamp at point 'A' on Letter no. 831 dated 13.12.2022 and on certified copy of 'C' Form as that of Sh. Deepak Kumar, Principal, ITI, Marhaura, Saran, Bihar; he did not identify signatures of anyone appearing on original Form 'C' and same are exhibited as Ex.PW12/A (Colly) (original form 'C' seen and returned); during the year 1986 to 1988, total 12 students had passed from ITI in Wireman Trade and marksheets and certificates were issued to the students on the basis of Form 'C'; Form C consist of serial no., registration no., name, father's name, date of birth, marks of all subjects; he had worked with instructor Sh. Sudarshan Prasad and Sh. Suleman Ansari; he had worked with Sh. Sudarshan Prasad for four years. On document D-11 i.e. letter no. 103/Marhaura dated 17.03.2010 being shown to him, he identified the signature of Sh. Sudharshan Prasad at point 'A' and it was exhibited as Ex. PW12/B; he had brought the attested copy of record of dispatch of duly attested by Sh. Deepak Kumar, Principal/Incharge, ITI, Marhaura, Saran, Bihar; he correctly identified the signatures of Sh. Deepak Kumar at point 'A' and same is exhibited as Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 14 of 24 Ex.PW12/C; Ex.PW12/C bears entry at Sr. No. 103 of the dispatch in respect of Ex.PW12/B; he was shown document D-8 i.e. original marksheet no. 32796 dated 13.11.1988 in the name of Sh. Bhagwan Prasad and he deposed that it has not been issued from ITI, Marhaura, Saran, Bihar as marksheet are issued on the basis of Form 'C'. He was shown document D-9 i.e. original certificate no. 02978 in the name of Sh. Bhagwan Prasad and he deposed that it has not been issued from ITI, Marharua, Saran, Bihar as document D-9 does not bears the signatures of Examination Controller, however it has the logo; D-9 does not bears the the National Trade Certificate being written in bold font, whereas the original certificate issued by ITI during the relevant period used to have National Trade Certificate being written in bold font; there is difference in writing the Sr. Nos. on the top right of document D-9 and in the original certificate used to be issued by ITI during the relevant period; there is difference of Sr. No. in figures being written on the original certificate vis a vis fake certificate as in the fake certificate, the same can be found on the top left corner of the document i.e. document D-9 whereas, on the original certificate, it is on the top right corner; he had brought the attested copies of the original certificates and the same were marked as Mark 'A' (colly).
28. In his cross examination he deposed that he had brought the medical certificate of Sh. Deepak Kumar, Principal/Incharge, ITI, Marhaura, Saran, Bihar alongwith forwarding letter no. 830 dated 13.12.2022; forwarding letter and medical certificate are Mark 'D1' (colly); Form 'C' is maintained for each year separately and same is not Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 15 of 24 used or maintained in continuation for more than one year; the register pertaining to Form 'C' is not maintained by them but it is maintained by the Examination Controller; admission register is maintained by the ITI; He voluntarily deposed that admission attendance register is maintained by ITI and he had not seen the admission attendance register in respect of accused Bhagwan Prasad; he had seen only the Form 'C'; he has not brought the originals of Mark 'A' (colly) and Ex.PW12/C.
29. Thereafter PE was closed, statement of accused under section 313 CrPC was recorded on 04.01.2023 and on the same day vide separate statement of accused DE was closed. It was stated by the accused in the statement that DW-1 examined on his behalf on 22.02.2022 may be read as defence evidence on his behalf. Thereafter, matter was listed for addressing of final arguments. On 25.01.2023 final arguments in the matter were heard on behalf of the parties and matter was listed for pronouncement of judgment.
30. Ld. Counsel for the accused in support of his contentions has relied upon the judgments tilted as 'CBI vs Raj Kumar Mahato' decided on 27.02.2020 by Ld. CMM, Rouse Avenue Courts, New Delhi; 'CBI vs Suresh Prasad' decided on 30.03.2017 by Ld. CMM, Central District, Tis Hazari Courts, Delhi; 'Ram Dayal Mehto vs. CBI' decided being Crl. Appeal No. 01/2019 decided on 30.09.2020 by Ld. Special Judge (P.C. Act), CBI-20, Rouse Avenue District Court, New Delhi and 'Kumari Madhuri Patil vs. Addl. Commissioner' decided on 02.09.1994 by Hon'ble Supreme Court of India reported as 1994 SCC (6) Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 16 of 24
241.
31. I have heard Ld. APP for the CBI/ Prosecution, Ld. counsel for the accused and have also carefully gone through the case file including the judgments relied upon.
32. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove its case against accused beyond all reasonable doubts. The standard of proof is not the preponderance of probabilities but proof beyond reasonable doubt. Initial burden of proof as regards prosecution in criminal trial is upon the prosecution and it never shifts upon the accused. It is well settled legal proposition that any benefit of doubt goes in favour of the accused.
33. In the present case from the cross examination of PW-11/IO Sandeep Gautam, it is clear that he had not seized the caste certificate issuing register nor he remember whether he had personally checked the caste certificate issuing register or not. The caste certificate issuance register was never produced in the court nor any explanation has come on record from the IO for his failure to seize the same. There is nothing on record to show that any attempt was made by the investigating agency to recover/ seize the original caste certificate issuance register at the time of investigation.
34. It is the case of the investigating agency/ prosecution that the caste certificate Ex.PW7/B is forged for the reason that the accused did not Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 17 of 24 belong to the Kharia Caste and was actually a member of Nonia Caste. This court is of the considered opinion that it is not for this court to adjudicate as to whether the accused belong to Kharia Caste or not or whether he was actually a person belonging to Nonia Caste in view of the law laid down by Hon'ble Supreme Court of India in Kumari Madhuri Patil vs. Additional Commissioner reported as 1994 SCC (6) 241. As in the present case, the certificate Ex.PW7/B or the claim that the accused herein did not belong to Kharia Caste was never referred to the scrutiny committee as directed in the aforesaid judgment. In view of the same, this court do not agree with the contention of the CBI/ Prosecution that accused was not a member of Kharia Caste and therefore, Ex.PW7/B is a forged document. The law laid down by the Hon'ble Apex court in the judgment titled as Kumari Madhuri Patil vs Addl Commissioner is not only binding upon this court but was also upon the investigating agency. From the facts of the present case, it is clear that CBI/prosecution did not refer claim of the accused to the Caste Scrutiny Committee which was mandatory on their part. Scrutiny committee investigates the claim of caste status of a particular person and ascertains whether caste/tribal status claimed is correct or not. Hence, it is clear that this court does not have the jurisdiction to decide as whether accused belong to Kharia Caste and therefore, the claim of forgery cannot be proved on the premise that the accused did not belong to the Kharia Caste and that he had forged or used a forged certificate to obtain employment in government department.
35. The principal issue before this court in the present case is whether Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 18 of 24 the caste certificate of accused Ex.PW7/B is forged or not. It is settled proposition of law that a fact can be proved either by a direct or indirect evidence. In the present case the authenticity of document Ex.PW7/B could have been proved by the person who had prepared the document and signed the same or by the person who may have seen the persons signing the document Ex.PW7/B. In this regard, the testimony of PW10 Diwakar Singh is relevant as in his examination in chief he had deposed that he had compared the caste certificate Ex.PW7/B and with the caste certificate issuance register and he had found that there was no caste certificate issued by his office in the name of accused. Pertinently, the caste certificate issuance register was not seized by the IO nor it was produced before this court during the recording of PE. However, in the present case for the best reasons known to the prosecution neither the then District Welfare officer and Zila Padadhikari, in whose tenure the purported forged caste certificate Ex.PW7/B was allegedly issued, were cited as witnesses nor examined during investigation. The Caste Certificate Issuance Register was never brought before this court nor it was seized by the investigating officer. Moreover, there is nothing on record in the nature of scientific opinion which could have suggested that Caste certificate Ex.PW7/B is a forged document. Apparently, no efforts were made during the investigation by the investigating officer to carry out any scientific examination of the document. It is settled law that merely exhibiting a document does not mean that the same has been proved as per the provisions of the Indian Evidence Act.
36. Furthermore, on careful perusal of Ex. PW3/A, it is noted there is Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 19 of 24 nothing on record to suggest as to how and on what basis, the Zila Kalyan Padhadhikari, Saran, Chhapra came to the conclusion that no caste certificate was issued to accused herein specifically, when it is clear from the testimony of PW10 that it was he, who had compared the caste certificate with the caste issuance register. Ex. PW3/A does not found any mention of the comparison being done by PW10 Diwakar Singh.
37. Moreover, PW-3 Surya Narayan Singh in his cross examination had deposed that there is no existence of Kharia Caste in the District Saran, Chhapra, Bihar, so the question of maintaining ST caste certificate issuance register does not arise and hence, it was not maintained. Whereas PW-10 Diwakar Singh in his examination in chief has deposed that he had compared the caste certificate Ex.PW7/B with the caste certificate issuing register and had found that no caste certificate in the name of accused had been issued from their office and accordingly a report Ex.PW3/A was sent to CBI/investigating agency which clearly implies that there are contradictions in the respective testimonies of PW-3 and PW-10 qua the caste certificate issuance register on the basis of which a report Ex.PW3/A was made. In view of the aforesaid discussion, it is quite clear that the basic premise on which the CBI was prosecuting the instant case stands on a shaky footing, due to which case of the prosecution has fallen like pack of cards.
38. Interestingly, PW-12 Vikas Kumar examined by Prosecution/CBI in pursuance of order dated 07.12.2022 passed by Ld. Revisional Court does not inspire any confidence for the reason, that as per order dated Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 20 of 24 07.12.2022 passed by Ld. Revisional Court it was only Sh. Deepak Kumar, the then Principal, ITI, Marhaura, Saran, Bihar or any other witness in case of his unavailability due to his transfer, illness etc, was authorized to depose before this court. On careful personal of Ex.PW12/A and Mark D1 (colly) it is clear that Sh. Deepak Kumar, the then Principal, ITI, Marhaura, Saran, Bihar had authorized one Sh. Kishori Chaudhary, to appear and depose before this court. There is nothing on record which would suggest that PW-12 Vikas Kumar was authorized to depose before this court on behalf of Sh. Deepak Kumar, the then Principal, ITI, Marhaura, Saran, Bihar. The name of PW-12 Vikas Kumar nowhere found mentions in Ex.PW12/A and Mark D1 (colly). In view of the same, testimony of PW-12 Vikas Kumar is of no relevance for the case of the prosecution as he was alien to the matter and was not authorized to depose. However, for the best reasons know to the CBI/Prosecution he was examined as PW-12. There is nothing on record, which would suggest that what made PW-12 Vikas Kumar to depose before this court in place of Kishori Chaudhary. Hence, testimony of PW- 12 Vikas Kumar cannot be appreciated for the want of his authorization to appear and depose before this court in place of Sh. Deepak Kumar, the then Principal, ITI, Marhaura, Saran, Bihar. Moreover, Ex.PW12/C i.e. attested copy of the record of dispatch of Ex.PW12/B and Form 'C' forming part of Ex.PW12/A (colly) were filed on record alongwith Mark 'A' (colly) have not been proved in accordance with the rules of evidence. In this regard provisions of the Evidence Act qua the proof of documentary evidence assumes importance.
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39. As per section 61 of Indian Evidence Act, 1872, the contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of Indian Evidence Act, primary evidence means the document itself is produced for the inspection of the court. In case, the party is unable to produce the document itself, they are required to prove the document by leading secondary evidence under Section 63 of the Indian Evidence Act. Section 63 of the Indian Evidence Act mentions the documents which can be considered in secondary evidence. Section of the Indian Evidence Act is reproduced as under:
"Secondary evidence.-Secondary evidence means and (1) Certified copies given under the provisions hereinafter contained1,1," (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it."
40. As per section 64 of the Indian Evidence Act documents must be proved by primary documents except in cases mentioned in section 65 of the Evidence Act. It is not the case of CBI/prosecution that original dispatch register and the original certificates issued by ITI, Marhaura, Saran, Bihar were not available. For the reasons best known to the Prosecution/CBI their claim qua Ex.PW12/C and Mark 'A' (colly) does not fall within the conditions as enumerated in Section 65 of the Indian Evidence Act. In view of the same, Ex.PW12/C, Form 'C' forming part of Ex.PW12/A (Colly) and Mark 'A' (colly) have not been proved in accordance with law.
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41. Ex.PW12/C i.e. the attested copy of a page of dispatch register and Mark 'A' (colly) i.e. copies of certificates does not fall in any of the category of secondary evidence under section 63 of Indian Evidence Act. Ex.PW12/C and Mark 'A' (colly) being photocopies are inadmissible in evidence and have not been proved by the prosecution. Merely, marking of the exhibits or identification of signatures on the attested photocopy of a original document by the witness, it cannot be said that the same has been proved in accordance with law. Same can also be said of Form 'C' forming part of Ex.PW12/A (colly) as PW-12 has only identified the signatures of the person attesting the photocopy and not of the persons appearing on the original Form 'C'. PW-12 has only proved the factum of attestation by Sh. Deepak Kumar on copy of Form 'C' forming part of Ex.PW12/A, Ex.PW12/C and Mark 'A' (colly). Furthermore, deposition of PW-12 qua Mark 'A' (colly) seems to this court as if he was appearing as an expert witness. Instead of document D-9 being sent to FSL for its comparison with the original certificates of the relevant period, the CBI/Prosecution appears to be filling the gap left opened during the investigation.
42. Considering the aforesaid discussion, given facts and circumstances, the evidence brought on record by the prosecution and defence, this court is of the view that the prosecution has miserably failed to establish that the caste certificate Ex.PW7/B and ITI certificate and Marksheet bearing no.s 02978 and 32796 respectively in the trade of wireman were forged documents. In consequence thereof, it is also not proved by the prosecution that by the use of caste certificate Ex. PW7/B and ITI Cr. Case No. 84/2019 CBI vs. Bhagwan Prasad Page No. 23 of 24 certificate and Marksheet bearing no.s 02978 and 32796 respectively in the trade of wireman, accused cheated his employer i.e. Delhi Jal Board by procuring the job of assistant pump driver reserved for the ST category. A doubt has crept in the prosecution story and benefit of it must be given to the accused. Hence, accused Bhagwan Prasad is acquitted of the offences punishable under section 420/471 IPC i.e. the offences for which he was charged with.
Announced in the open Court (DEEPAK KUMAR-II)
On 27.01.2023 ACMM-2-CUM-ACJ
ROUSE AVENUE COURT
COMPLEX, NEW DELHI
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