Delhi District Court
Sate vs . Bijender Kumar Etc. on 10 March, 2015
FIR No.56/03
PS Narela
U/s. 419/468/471/120B IPC
Sate Vs. Bijender Kumar etc.
IN THE COURT OF SH. SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR No. 56/03
PS Narela
U/s. 419/468/471/120B IPC
Sate Vs. Bijender Kumar etc.
Date of Institution of case:- 02.01.04
Date of Judgment reserved:-25.02.15
Date on which Judgment pronounced:- 10.03.15
JUDGMENT
Unique ID no. :02401R5461092004
Date of commission of offence :10.03.03
Name of complainant :Ms. Saraswati, Principal, R/o H.No.
1208, Sector-15, Sonepat, Haryana.
Name and address of accused :Bijender Kumar S/o Sh. Satbir
Singh, R/o Village Bajitpur, Bawana,
Delhi.
Vikas Lamba S/o Sh. Om Parkash,
R/o Vill. Harevali, Delhi.
Offence complained of :419/468/471/120B IPC
Plea of accused :Pleaded not guilty
Final order :Acquitted
Date of order :10.03.2015
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
1. The accused Bijender Kumar S/o Sh. Satbir Singh and Vikas Lamba S/o Sh. Om Parkash have been sent to face trial under Section 419/468/471/120B Indian Penal Code (hereinafter called as IPC) on the allegations that on or before 10.03.03 both of them entered into criminal conspiracy and prepared forged admission card in Delhi Sr. Secondary School Examination, 2003. The original admission card was in the name of accused Vikas Page No.1 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. Lamba and the accused Bijender Kumar had tampered/forged the original admission card by affixing his photograph. Thereafter, the accused Bijender Kumar impersonated accused Vikas Lamba and appeared in class 12th examination on 10.03.2003 at 10:30 am. at Sarvodya Kanya Vidhayala No.1 School in order to cheat the school authorities and Central Board of Secondary Education, Delhi, using the above said forged admission card as genuine and on the basis of the said allegations, the present FIR bearing no.56/03 was registered at Police station Narela and the accused persons have been charged with the offences under Section 419/468/471/120B IPC.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) and charge was framed against the accused persons for the offences U/s. 419/468/471/120B IPC on 12.07.06, to which they have pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined nine witnesses.
4. PW1 is Smt. Saraswati Arya, Principal, Govt. Sarvodya Kanya Vidyalaya No. 1, Narela, Delhi. She is the complainant in the present case. She deposed that on 10.03.2003 she was Page No.2 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. posted at Govt. Sarvodya Kanya Vidyalaya No. 1, Narela as Principal. She further deposed that on that day, CBSE exams of 10+2 standard were going on and on that day there was examination of Agriculture subject and she was working as Center Superintendent of the said School. She further deposed that in her school the students from Bawana Government Boys Sr. Secondary School were appearing in the examination. She further deposed that Mr. Y.S. Rana, Principal of Bawana Government Boys Sr. Secondary School had received an information from Mr. I.P. Sabu, Dy. Secretary CBSE that some person was appearing against the name of Mr. Vikas Lamba. Thereafter, she alongwith Mr. Y.S. Rana and Mr. I.P. Sabu checked the candidates and in room No. 5, one Bijender was found appearing impersonating Mr. Vikas. Thereafter, she made a call to the police. Thereafter, accused Bijender with admit card was handed over to the police. She further deposed that photocopy of the admit card of candidate Vikas Lamba was handed over to the police and the same was seized by the police vide seizure memo Ex. PW1/A, bears her signature at point A. Photocopy of admit card was Ex.PW1/A. She did not remember whether original admit card and attendance sheet were handed over to the police by her or not. However, she admitted that seizure memo Ex. PW1/B regarding seizure of original admit card and attendance sheet bears her signatures at point A and B. Thereafter, the accused was arrested by the police vide arrest memo Ex.PW1/C, bears her signature at point A. She did not Page No.3 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. remember whether any disclosure statement was made by the accused to the police in her presence. However, disclosure statement Ex. PW1/D, bears her signature at point A. She further deposed that she had also sent information regarding the impersonation by Mr. Bijender to CBSE and photocopy of the same was Ex.PW1/E. She could not identify accused Bijender as almost four years have passed since the incident. Ld. APP for the state sought permission to cross examine the witness on the point of identification of the accused Bijender. During her cross-examination by Ld. APP for the state, she denied the suggestion that she had deposed falsely being won over by the accused Bijender. She has not been cross-examined by accused persons despite given opportunity.
5. PW2 is Mrs. Poonam W/o Sh. Vijay Bhushan, R/o 38 Vijay Nagar, Sonepat, Haryana. She deposed that on 13.03.2003, she was posted at Sarvodaya Kanya Vidyalaya No. 1 Narela as TGT teacher. She further deposed that on that day CBSE examination of 12th class were being conducted in their school and she was working as Invigilator in room No. 5. During examination, Mr. Y.S. Rana, Principal of Bawana Government Sr. Secondary School alongwith Mrs. Sawaswati Arya, Principal Sarvodaya Kanya Vidyalaya No. 1, Narela came to room No. 5 and they checked the candidates appearing in examination. She further deposed that during checking it was found that one person was appearing in examination impersonating Mr. Vikas Page No.4 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. Lamba. Thereafter, he was apprehended and police was called. Thereafter, accused was handed over to the police and police recorded her statement. She further deposed that neither she can tell the name of that person who was impersonating Vikas Lamba nor can she could identify that person. Ld. APP for the state sought permission to cross-examine this witness as she was resiling from her previous statement given before police. During her cross-examination by Ld. APP for the state, witness was confronted with statement mark 'A'. She admitted that name of the accused who was impersonating Vikas Lamba was Bijender Singh S/o Satbir Singh, R/o Village Bajitpur, Delhi however, she submitted that she could not identify the accused Bijender as almost four years have passed since the incident. She denied the suggestion that she was intentionally not identifying the accused being won over by the accused. She has not been cross-examined by accused persons despite given opportunity.
6. PW3 is Sh. Y.S. Rana, Principal, Govt. Boys Sr. Sec.
School, Bawana, Delhi. He deposed that in the month of March 2003, 12th Class students of his school were appearing in their final exam at Govt. School, Narela. He further deposed that he was called at the Narela School where students of his school were appearing in their exams. He further deposed that the Principal of Narela school Mrs. Saraswati Arya told him that in place of a student of his school, some other person was caught Page No.5 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. while taking exam and she asked him to identify his student. He further deposed that the surname of the student of his school in whose place some other person was taking the test was Lamba but he did not remember his initial name. Thereafter, IO of the case asked him to produce the proof regarding age of that student Lamba and he furnished the same to the IO which was Ex. PW3/A. He failed to identify the accused persons present in the court since long time have passed in the incident. During his cross-examination by Ld. defence counsel of accused Vikas Lamba, he admitted that none of the students were shown to him when he had visited the Narela School. He also admitted that no judicial TIP was conducted of any student in this regard. He also admitted that Ms. Saraswati Arya did not ask him about the students or to identify them. He has not been cross examined by accused Bijender despite given opportunity.
7. PW4 is Sh. Sanjeev Nigam, S/o Sh. S.N. Nigam, R/o AG-594, Shalimar Bagh, Delhi-88. He deposed that he was a teacher by profession. He deposed that he did not remember the exact date, but in the month of March, 2003, he was posted at Rajkiya Sarvodhya Kanya Vidhayala, Narela as a teacher. He further deposed that the examination of CBSE, 12th class was going on and he was deputed as a supervisor/invigilator in room no.5. He further deposed that the principal of the school Smt. Saraswati Arya had received a complaint and she came at room no.5 and took one student with her, but he could not identify Page No.6 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. that student, due to lapse of time. He further deposed that the name of the said student is Vikas Lamba. Ld. APP for the state sought permission to cross examine the witness U/s. 154 of Indian Evidence Act. During his cross examination by Ld. APP for the state, the witness was confronted with the statement mark A from point A to A1. He admitted that the incident took place on 10.03.03. He denied the suggestion that the Principal disclosed them that one person was doing the exam in place of student Vikas Lamba. He further denied the suggestion that they came to know that the person who was doing the exam was Bijender. He could not identify the said person today. He further denied the suggestion that he could not identify the accused intentionally being won over by the accused.
During his cross examination by Ld. defence counsel for the accused Vikas, he admitted that he was never called for judicial TIP/identification of the accused persons. He also admitted that he did not know at what time which student was taken by the Principal as he was performing his duty. He further denied the suggestion that no such incident took place. He has not been cross examined by Ld. defence counsel for the accused Bijender.
8. PW5 is HC Mangeram, No. 1247/T, Bawana Circle, Traffic, Delhi. He deposed that on 14/04/2003, on the instructions of the IO, he collected an envelope containing the documents of the present case and deposited the same vide RC No.117/21 and handed over the receipt to the MHC(M). The Page No.7 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. result of the same was Ex.PW4/A. He has not been cross- examined by accused persons despite given opportunity.
9. PW6 is Retd. Deputy Secretary, CBSE, Sh. Mahender Pratap Arora, S/o Sh. Jethanand, R/o C-804, Vikaspuri, New Delhi-18. He deposed that on 20/03/2003, he was posted as Section Officer in Confidential Branch of CBSE, Preet Vihar, Delhi and on that day, he handed over the copy of the complaint No. SKV/1/NRL/03/836 by Central Superintendent to CBSE, dated 10/03/03, copy of admission card of accused Vikas Lamba, answer book of accused Vikas Lamba, roll No. 6626016 which runs into 32 pages out of which 7 pages are filled and original admit card of accused Vikas Lamba, roll No. 6626016 to IO ASI Ramesh Chand. The complaint dated 10/03/03, Ex. PW6/A was shown to the witness to which witness correctly identifies the same. Original admit card Ex.PW6/B was shown to the witness to which witness correctly identified the same. Original answer sheet Ex.PW6/C was also shown to witness to which witness correctly identified the same. He has not been cross-examined by accused persons despite given opportunity.
10. PW7 is SI Ramesh chand, No. 4357/D, ACP Office, Alipur, Delhi. He deposed that on 10/03/03, on the basis of the written complaint, he prepared the rukka Ex. PW7/A and got the FIR registered through DO. Thereafter, he along with Ct. Ranbir Page No.8 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. Singh reached at Rajkiya Sarvodya Kanya Vidyalaya No. 1, Narela, Delhi, there he met Ms. Saraswati Arya, principal of the school. He deposed that the accused Bijender present in the court was also present there. He further deposed that the Principal Saraswati Arya told him that accused Bijender was appearing in the examination on behalf of accused Vikas who is present in the court on the basis of a forged admit card by pasting his photograph on the admit card of accused Vikas. Thereafter, he collected the photocopy of forged admit card from the principal which was taken into possession vide memo Ex. PW1/A. Thereafter, he arrested the accused Bijender vide arrest memo Ex. PW1/C and his personal search was also conducted vide memo Ex.PW7/B. Thereafter, he interrogated accused Bijender Kumar and recorded his disclosure statement Ex.PW1/D. Thereafter accused Bijender was put behind the bars. He further deposed that he tried to search the other co-accused Vikas Lamba but he could not be found. Thereafter, he collected the photocopy of roll No. and DOB certificate from Govt. Boys Senior Secondary School, Bawana of accused Vikas which was taken into possession vide memo Ex. PW7/C and copy of date of birth is Ex.PW3/A, photocopy of result register was Ex.PW7/D. He also collected original admit card from CBSE board, Preet Vihar, Delhi Ex.PW6/B. He also collected answer sheet of the accused dated 10/03/03 Ex.PW6/C. He also collected the original admit card and one original attendance sheet from Principal Smt. Saraswati Arya which was taken into possession vide memo Page No.9 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. Ex.PW1/C and attendance sheet vide Ex.PW7/E. He deposed that on 29/04/03, accused Vikas Lamba was arrested vide memo Ex. PW7/F and his personal search was also conducted vide memo Ex.PW7/G. Thereafter, he obtained the specimen handwriting samples of accused Bijender which runs into 11 pages from S-1 to S-11 and were Ex.P1 colly. He also obtained the specimen handwriting samples of accused Vikas Lamba which runs into 8 pages from S-12 to S-19 and were Ex P2 collectively. Thereafter, he sent specimen handwriting samples alongwith answer sheet and admit card to FSL, Hyderabad and obtained the result which was Ex.PW7/H. He further deposed that after completion of investigation chargesheet was prepared and filed in the court. This witness correctly identified the accused Bijender and Vikas present in the court.
During his cross-examination by Ld. counsel for the accused Vikas Lamba, he deposed that no public person was asked to join at the time of arrest of accused Vikas Lamba. He admitted that he did not obtain any permission from the court regarding obtaining specimen signatures or handwriting of accused persons. He denied the suggestion that he had deposed falsely. During his cross examination by Ld. defence counsel for the accused Bijender, he deposed that accused Bijender was arrested from the class room in the school and around 40 students were present in the class room at the time of arrest of accused Bijender. He deposed that no public person was joined in the investigation at the time of obtaining sample from Page No.10 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. accused Bijender. He further deposed that original answer sheet was obtained from CBSE and he had not seized the answer sheet at the time of arrest of the accused. He further deposed that after 8-10 days, he had received original answer sheet from CBSE, Preet vihar. He denied the suggestion that the accused has been falsely implicated in the present case. He further denied the suggestion that specimen signatures of the accused were not obtained by him during the investigation.
11. PW8 is Ct. Rambir, No. 1879/ Traffic, Paharganj Circle, Delhi. He deposed that on 10-03-03 duty officer HC Ajay Kamal had handed over to him a rukka and copy of FIR. He took the same at spot i.e Rajkiya Sarvodaya Vidayalaya no.1, Narela, Mandi and handed over the same to IO/ ASI Ramesh Chand. Thereafter, IO interrogated accused Bijender kumar S/o. Satbir Singh and recorded his disclosure statement Ex.PW1/D. Thereafter, IO arrested the accused Bijender vide arrest memo and personal search memo Ex.PW1/C and Ex.PW7/B. Thereafter IO recorded his statement. He further deposed that he could not cannot identify the accused Bijender due to lapse of time. Ld. APP for the state sought permission to cross examine the witness as he was resiling from his previous statement. During his cross examination by Ld. APP for the state, he admitted that seizure memo Ex.PW1/A bears his signature at point B. He also admitted that IO seized photocopy of roll number Ex.P/A from Page No.11 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. principal of the accused. Attention of the witness was drawn towards accused Bijender present in the court and witness correctly identified the accused Bijender. Court made the observation that witness had seen the photograph of accused in the photocopy of roll number Ex.PA before identifying the accused.
During his cross examination by Ld. defence counsel for the accused Bijender, IO had not inquired about the incident from any person except Principal. Thereafter, IO interrogated the accused in his presence. Thereafter, he had signed the disclosure statement Ex. PW1/D at the spot. He had seen the document Ex.PA in the PS, again said he had seen the documents at the spot. He denied the suggestion that he had not joined the investigation of the present case or that IO had not conducted the investigation fairly. He denied the suggestion that IO had obtained his signatures on all the documents at the PS. He also denied the suggestion that accused did not make any disclosure statement to the IO and that he had deposed falsely.
12. PW9 is HC Suraj Bhan, No. 169/OD, PS Alipur, Delhi. He deposed that on 29.04.2003, he had joined the investigation of the present case with IO SI Ramesh. He deposed that he alongwith IO reached at Village Harewali, Near Bawana, Delhi, there they met accused Vikas, at his house at Village Harewali. Thereafter, IO interrogated the accused Vikas and recorded his Page No.12 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. disclosure statement, vide Ex.PW9/A. Thereafter, IO arrested the accused Vikas and also conducted his personal search vide memos Ex.PW7/F & PW7/G respectively. Thereafter, the accused Vikas was brought to the police station and put behind the bars. This witness correctly identified the accused Vikas. During his cross-examination by Ld. defence counsel, he deposed that IO recorded the disclosure statement of accused Vikas in his presence. He further deposed that personal search of accused Vikas was conducted at his house itself. Some persons were present at the time of arrest of accused Vikas, but those persons were not joined as witness by the IO. He denied the suggestion that the accused Vikas was falsely arrested in the present case and that he was arrested at the PS itself. He also denied the suggestion that all the documents were prepared while sitting in the police station and that he had deposed falsely.
13. It is a matter of record that after examination of all the material witnesses, the prosecution evidence was closed on 09.07.2014 and the statement of the accused persons u/s 313 Cr.P.C. was recorded on 03.11.14 wherein accused persons stated that they are innocent and have been falsely implicated in the present case. However, they opted not to lead any defence evidence and thus the matter was listed for final arguments.
Page No.13 of 17 FIR No.56/03PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc.
14. I have heard the arguments advanced by Ld. APP for the state as well as the Ld. Defence counsel and given my thoughtful consideration to the entire record.
15. The complainant in the present case as mentioned in the chargesheet is PW1 Smt. Saraswati Arya, Principal from Govt. Sarvodaya Kanya Vidyalaya, Narela and she deposed that Mr. Y.S Rana, Principal of Govt. Boys Senior Secondary School, Bawana had received an information from one I.P. Sabu (Deputy secretary, CBSE) that a person is impersonating himself as Vikas Lamba and appearing in the CBSE exam and then she alongwith Mr. Y.S. Rana and Ms. I.P. Sabu checked the candidates in room no.5 but, in this regard it is noteworthy that, firstly she failed to identify the accused Bijender as the person who had impersonated the other accused Vikas Lamba and secondly PW3 Mr. Y.S, Rana stated that he was informed by PW1 Smt. Saraswati Arya that a student of his school was being impersonated by some other person while taking exam and he stated that none of the students were shown to him when he visited the Narela school and he was not asked to identify any of the student which runs contrary to the testimony of PW1 who stated that she alongwith Mr. Y.S. Rana inspected the class room on the day of alleged incident. PW3 also failed to identify the accused persons. It is further noteworthy that no witness by the name of Mr. I.P.Sabu was examined or even cited by the prosecution in list of witnesses. PW4 Mr. Sanjeev Nigam also Page No.14 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. failed to identify the accused persons and did not support the case of prosecution at all. PW2 Mrs. Poonam also could not identify the accused as the person impersonating Vikas Lamba on the day of alleged incident. It cannot be inferred clearly as to actually who got the information initially that somebody is impersonating somebody else in the exam.
16. It may further be appreciated that though the concerned forensic expert / examiner from FSL was not examined in evidence in respect of the comparison of the questioned handwriting /signature with the specimen handwriting/ signature of the accused persons but still a bare perusal of the FSL report on record shows that there was no opinion expressed upon the questioned signature of accused Vikas upon the admit card Ex.PW6/B as well as questioned signature upon the attendance sheet Ex.PW7/E as well as the questioned handwriting upon the front page of the answer sheet Ex.PW6/C and therefore, it could not be said that accused Bijender had written the abovementioned contents /signature of accused Vikas Lamba. Though the questioned handwriting from Q4 to Q10 were found to be matching with specimen handwriting of accused Bijender as per the FSL report Ex.PW7/H, but as already discussed above, the signature / handwriting upon the remaining documents were also required to have been proved specifically but the FSL report does not express any definite opinion upon the same. Needless to say that opinion of an handwriting expert on its own is not Page No.15 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. sufficient to sustain the conviction of the accused persons and it should be corroborative by other evidence in the case and in the absence of any other corroborating evidence it will not be safe to rest conviction merely upon the opinion of an handwriting expert. It is now well settled law that expert opinion must always be received with great caution and perhaps with more caution. It is unsafe to base a conviction solely on expert opinion without sufficient corroboration. This rule has been universally acted upon and it has almost become a rule of law. ( Madan Bihari Lal Vs State of Punjab, AIR 1977, SC 1091).
In Ishwari Prasad Mishra Vs Mohd. ( AIR 1963 SC 1728). It was observed by the Apex court that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence and sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. Moreover, in the present case there has been no corroboration whatsoever by the public witnesses examined in the present case. The intrinsic consistencies in testimony of PW1 and PW3 have also proved fatal to the case of prosecution. There is no cogent evidence on record to show that accused Bijender was impersonating the accused Vikas Lamba on the date of exam i.e. 10.03.2003.
17. It is further significant to observe that there has been no verification done by the investigating officer upon the signatures Page No.16 of 17 FIR No.56/03 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. of principal Mr. Y. S. Rana on the photograph of the accused Bijender in the admit card Ex.PW6/B. It was also necessary to establish clearly as to whether the signatures of Mr. Y.S. Rana were also forged by the accused persons upon the admit card as otherwise it cannot be inferred as to how did the signatures of Mr. Y. S. Rana appear upon the photograph on the admit card Ex.PW6/B? There is no site plan on record and there is no complaint on record as well by Smt. Saraswati Arya who is mentioned as the complainant in the present challan. Overall, there have been several discrepancies in the case of prosecution because of which it cannot be said that the prosecution has been able to prove its case to the hilt against the accused persons.
18. Therefore, after scanning the entire record, in view of the above mentioned inconsistencies and gaping loopholes in the case of prosecution, in my considered opinion, the prosecution had miserably failed to prove the present case against the accused persons beyond reasonable doubt and hence, the accused persons Bijender and Vikas Lamba are hereby acquitted from offences u/s 419/468/471/120B IPC.
19. File be consigned to Record room after necessary compliance.
(SANDEEP GUPTA) Metropolitan Magistrate Rohini/Delhi Announced in open court today, Dated 10th March, 2015.
Page No.17 of 17 FIR No.56/03PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar etc. FIR No. 459/04 PS Narela U/s. 419/468/471/120B IPC Sate Vs. Bijender Kumar 10.03.2015 Present : Ld. APP for the State.
Both the accused on bail alongwith Ld. Counsel.
I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, both the accused persons are acquitted of the said offences u/s 419/468/471/120B IPC.
Both the accused persons are directed to furnish fresh bail bond bond for a sum of Rs.20,000/- each with one surety of like amount in terms of Section 437 A of Cr.P.C. The same stands furnished and accepted.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi Page No.18 of 17