Delhi District Court
State vs . Gagan Khanna & Ors. on 18 July, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Gagan Khanna & Ors.
FIR No. 247/2001
PS : Hauz Qazi
U/S 468/472/120B IPC
Date of Institution : 20.03.2002
Date of reserving of order : 07.06.2018
Date of Judgment : 18.07.2018
J U D G M E N T
1. Serial No. of the case : 288814/2016
2. Name of the Complainant : SI Antriksha Alok
3. Date of incident : 28.11.2001
4. Name of accused persons :
1.GAGAN KHANNA S/o SH. PRINCE KHANNA R/o 4974 PHATAK BADAL BEG HAUZ QAZI DELHI NEW DELHI
2) RAJENDER S/o BHIRGUN R/o 806, JJMANDAWALI NAND NAGARI DELHI NEW DELHI
3) NAVED S/o RIYASAT R/o 1154, GALI JAMUNWALI PUNJABI PHATEK CHOWK DELHI NEW DELHI
4) BURAHAN KHAN BHARTI S/o Z. HUSSAN R/o 32, KUCHA REHMAN CHANDINI CHOWK DELHI NEW DELHI.
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5. Offence for which chargesheet has been filed : S. 468/472/120B IPC.
6. Offence for which charge has been framed :S. 120B/465 IPC.
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 18.07.2018 Present : Sh. Santosh Kumar, Ld. APP for the State.
Sh. Amardeep Singh, Ld. Counsel for accused Gagan Khanna and Rajender.
Sh. Salim and Sh. Khurshid, Ld. Counsel for accused Naved.
Sh. M.S. Khan, Ld. Counsel for accused Burhan BRIEF REASONS FOR ORDER:
1. Mr.Gagan Khanna, Mr. Rajinder, Mr. Naved and Mr. Burhan Khan, the accused persons herein, have been chargesheetd for the offences punishable under Section 468/472/120B, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 28.11.2001, one secret information was received by SI Antriksh Alok, PS : Hauz Qazi that one person named Naved was printing forged certificate of Delhi University in the printing press of Gagan Khanna. One raiding party was FIR No. 247/01 State Vs Gagan Khanna & Ors Page 2 of 46 PS : Hauz Qazi prepared after informing the SHO. They reached at the spot at 2120, Katra Gokul Shah, Bazar Sita Ram and entered in the house. Accused Gagan Khanna, accused Rajender and accused Naved were found at the spot. They were apprehended. Various blank degree certificates were recovered, which were seized. On the basis of said information, present FIR had been registered and investigation was initiated. On the disclosure statement of accused Naved, accused Burhan Khan was apprehended and at his instance one blank certificate of DU and various blank papers had been seized. After completion of investigation final report was prepared and the accused persons had been chargesheeted for the offences punishable under section 468/472/120B, IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 120B IPC and Section 465 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.FIR No. 247/01 State Vs Gagan Khanna & Ors Page 3 of 46
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4. The prosecution has examined as many as 07 witnesses to prove its case against the accused.
5. PW 1 ASI Brice Induar is the Duty Officer. He had registered FIR No. 247/01, which is Ex. PW1/A on the basis of rukka Ex. PW1/B.
6. PW2 HC Udham Singh is the police official, who had joined the investigation with the IO. He has deposed that on 28.11.01, he alongwith SI Antriksh Alok, HC Jagmohan, Ct. Satish and Ct. Nagesh were on patrolling duty in the area of Chaurasi Ghanta, Sita Ram Bazar. One secret informer informed them that one person named Naved was printing forged certificates of University in press at Katra Gokul Shah, Bazar Sita Ram.
Thereafter, IO prepared raiding team consisting of the abovesaid police officials and they reached at about 7 :20 p.m. in the printing press. Accused were found in the printing press. Accused Naved was also standing near the printing press, who seeing the raiding party tried to slip away. He was stopped. After checking, 6 degrees of DU along with 44 blank papers were recovered. The said documents were sealed with the seal of "AA" and taken into possession vide memo Ex.PW2/A. IO prepared the rukka and got the case registered through Ct. Naresh. IO arrested accused Naved, Gagan and Rajender and their FIR No. 247/01 State Vs Gagan Khanna & Ors Page 4 of 46 PS : Hauz Qazi personal search was conducted vide memo Ex. PW2/B, Ex. PW2/C and Ex. PW2/D. During personal search of accused Naved, one passport was recovered, which was issued from DU. On next day, accused Burhan Khan was arrested from the area of Chandni Chowk and his personal search was conducted vide Ex.PW2/E. Seizure memo Ex.PW6/E and Ex. PW6/F were also prepared by the IO. He identified the case properties as Ex.P1 (colly) to Ex.P6 (colly).
7. PW3 Retd. SI Tejpal Singh is one of the IO. He has deposed that on 07.12.2000, the case file of the present FIR had been marked to him by the then SHO. He attended the bail matter of accused Gagan Khanna and Morahin Khan. The case property was also produced before the court of Hon'ble Sh.S.S. Pant at Room No. 210, the then ASJ. The case property was again sealed with the court seal. Thereafter, he handed over the file to the MHC(R).
8. PW4 Sh. Jasbir Singh, Retd. Assistant Controller Examination, DU has deposed that on 04.02.2002, he was working as Assistant Controller Examination and on that day he had sent the verification letter to SI Manmohan Kumar regarding the blank BA Pass degree of year 1998 and after verification from record, he found that the same was fake. He had given his FIR No. 247/01 State Vs Gagan Khanna & Ors Page 5 of 46 PS : Hauz Qazi detailed report in this respect, which is Ex. PW4/A.
9. PW5 Inspector Manmohan Kumar is one of the IO, who had filed the final report. He has deposed that on 12.01.2001, further investigation of this case marked to him and during investigation, he sent the blank degree of BA pass year 1998 Ex. P1 to the Controller Examination, DU. After some time, he received the confidential letter regarding verification of said degree Ex. PW4/A. After completion of investigation, he prepared the chargesheet and submitted in the Court through SHO.
10. PW6 Ct. Nagesh was also part of the raiding team. He has deposed that on 28.11.2001, he was the member of raiding team, they reached at the printing press and found that accused Rajinder was printing, accused Naved was giving directions to Rajinder and Gagan Khanna was sitting on the chair in the printing press. About 56 papers were already printed and the remaining papers were yet to be printed. IO SI Alok seized all the said papers vide seizure memo Ex. PW2/A. Thereafter, IO prepared tehrir and gave him for registration of FIR. He went to PS and got registered FIR and returned with original tehrir and copy of FIR and handed over the same to IO. Accused Naved, Gagan Khann and Rajinder were arrested vide memo Ex. PW6/A, Ex.PW6/B and Ex.PW6/C. FIR No. 247/01 State Vs Gagan Khanna & Ors Page 6 of 46 PS : Hauz Qazi On next day, they took accused Naved to Kucha Rehman where at the instance of accused Naved another accused namely Burhan was apprehended. IO arrested accused Burhan vide memo Ex. PW6/D and conducted his personal search Ex. PW2/E. At instance of accused Burhan, one photocopy of degree of DU and some blank papers were recovered and same were seized vide memo Ex. PW6/E. He identified all the accused in the Court.
11. PW7 SI Antriksha Alok is the complainant/first IO. He has deposed that on 28.11.2001, he alongwith HC Udham Singh, HC Jagmohan, Ct. Nagesh and Ct.Satish were at Chaurasi Ghanta, Sita Ram Bazar, Delhi06, one secret informer informed him that one person was printing fake degree of DU at H. No.2120, Katra Gokul Shah, Bazar Sitaram, Delhi. After informing the said information to SHO and direction of SHO, he constituted a raiding party consisting of aforesaid police officials and they had entered into the aforesaid house and Gagan Khanna was found sitting on the chair and was giving instructions to his employee Rajender about printing of certificates. Accused Naved was also found there. After seeing raiding team, he had tried to fled away but he was apprehended. During search six degree certificates ("Kala Sankaya" of Delhi Univerity) and 44 FIR No. 247/01 State Vs Gagan Khanna & Ors Page 7 of 46 PS : Hauz Qazi blank papers were recovered. One positive was recovered from the aforesaid house. He prepared rukka Ex.PW7/A and handedover to Ct.Nagesh for registration of FIR. He had prepared site plan Ex.PW7/B. He had arrested accused Gagan Khanna, Rajender and Naved vide memo Ex.PW6/A, Ex. PW6/B and Ex. PW6/C. Personal search of accused were also conducted vide memo Ex. PW2/B to Ex.PW2/D. Accused Naved had led them to House of co accused Burhan at 5332, Kucha Rehman, Chandni Chowk, where accused Burhan was apprehended, from his house forged certificate of DU "Kala Snatak" of year 1998 and 40 blank papers were recovered.
12. The witnesses were cross examined. The prosecution evidence was closed. Accused persons were examined under Section 313 Cr. P.C., r/w Section 281 Cr. P.C. The accused denied the incriminating evidence. They would state that they were falsely implicated. They were called from their house and thereafter they were arrested. Accused Md. Burhan Khan would state that he used to run a news paper in the name of "Chhatron Ki Awaz". He had published about the irregularities in the police post Ballimaran. Therefore, he was falsely implicated.
13. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
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14. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identities of the accused persons have been established beyond reasonable doubts. The prosecution witnesses have proved all the recovery from the accused persons. Hence, the ingredients of the offences against the accused persons have been proved beyond reasonable doubts. Therefore, it is prayed, the accused persons may be convicted for the offences punishable under Section 120B IPC and Section 465 IPC.
15. Learned defence Counsel for the accused persons would argue that the accused persons were falsely implicated in the present case. There are various contradictions in the testimonies of the prosecution witnesses. The fact of alleged recovery has not been proved beyond reasonable doubts. There is no public person who has proved the alleged recovery. alleged items have been planted upon the accused persons to create false evidence. No printing press has been produced in the evidence. all police officials have been planted as witness. None of them had participated in any investigation. All the documents had been prepared while sitting in the police station.
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16. Ld. Counsel for accused Naved has also filed written submissions. following arguments have been made to substantiate the submissions that the accused is entitled for acquittal.
a)No recovery has been effected from the possession or at the instance of accused Naved. Accused Naved has clean antecedent and not involved in any other case prior or after this case.
b)There is no departure or arrival entry regarding the movement of the police party after receiving any secret information and apprehension of the accused persons, which clearly shows that the entire story of the prosecution is false and fabricated one.
c) The site plan Ex. PW7/B of the spot again create serious dent in the story of the prosecution as nothing has been shown in it such as the position of the accused persons, the placement of the printing press, other articles lying therein and the alleged recovery of fake degrees and other materials.
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d) Complainant PW7 SI Antriksh Alok himself is the IO of this case as almost entire investigation of this case had been conducted by him after recording the FIR Ex.PW1/A on the basis of rukka Ex.PW7/A sent by PW7 for registration of the case which creates serious doubt on the case of the prosecution as no fair investigation has been conducted by him in this case.
e) No ownership documents pertaining to premises raided or pertaining the printing press which was found lying there at the time of alleged raid are brought on record.
f) PW6 Ct. Nagesh and other other police officials were aware that the alleged raided premises was owned by Sh. Sunil Yadav, who was Special Police Officer, living in Katra Gokul Shah, Delhi and the above said Sunil Yadav was neither cited as a prosecution witnesses nor examined in this case.
g)PW2 Udham Singh has deposed in cross examination that the printing press was inspected by an expert in his presence on the FIR No. 247/01 State Vs Gagan Khanna & Ors Page 11 of 46 PS : Hauz Qazi day of raid. The expert was summoned by the IO Antriksh Alok on the spot on 28.11.2001. The expert had taken photographs of the said printing press on that day in their presence. The photographs of all angles of the printing press were taken by the expert and he had also taken notes on that day. The material of said claim of PW2 is missing from the chargesheet as photographs and notes are not on judicial record. The inspection of the alleged printing press had not been conducted by the expert.
h)Signatures of the PW6 Ct. Nagesh Kumar on Ex.PW2/A, Ex. PW6/E, Ex.PW6/F, Ex. PW6/G and Ex. PW6/H are in inverted position, which clearly shows that the entire proceedings were conducted while sitting in the police station and signatures of the witnesses and the accused persons were obtained on the blank papers, which were later on converted into memos and other documents.
i) Signatures of PW6 HC Udham Singh on Ex.PW2/A and Ex.PW2/B are initial position, on Ex.PW6/E is in different font and style, on FIR No. 247/01 State Vs Gagan Khanna & Ors Page 12 of 46 PS : Hauz Qazi Ex.PW6/F is in Urdu language, which reveals that either these are not signatures of HC Udham Singh and fabricated by the IO as per his requirement.
j) MHC (M) has not been produced as a prosecution witness to prove the entries of depositing the case property in Malkhana as alleged by the prosecution. It is mystery in this case that by whom and when the case property was deposited in the malkhana and whom and when the case property was taken back and again deposited in the Malkhana. This infirmity in the prosecution case also strengthen the plea of defense that the recoveries have been planted upon the accused persons.
k)The entire case property was produced in an unsealed condition. In the absence of any conclusive expert opinion the case of the prosecution is full of doubt and infirmities.
l) There is no public witness in this case despite availability on 28.11.2001 and 29.11.2001 respectively. There is no corroborative FIR No. 247/01 State Vs Gagan Khanna & Ors Page 13 of 46 PS : Hauz Qazi evidence or documentary proof in respect of the factum of any printing press as alleged by the prosecution. No public witness was joined at the time of recovery though the place of recovery was situated in a thickly populated and residential/commercial area though public witnesses were available.
17. On the basis of abovementioned arguments, it has been submitted that reasonable doubts have been created on the story of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused persons and they may be acquitted.
18. I have heard the rival submissions and carefully perused the material available on record.
19. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
20. In the present case, the accused persons have been charged for committing offences punishable under Sections 120B IPC and Section 465 IPC. For the purpose of proving criminal conspiracy as defined under Section 120B, IPC, the prosecution must establish the following:
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a)that the accused agreed to do or caused to be done an act;
b)that such act was illegal or was to be done by illegal means; and
c) that some overt act was done by one of the accused in pursuance of the agreement.
21. The Hon'ble Apex Court in Baliya Vs. State of Madhya Pradesh, 2012(9) SCC 696 has held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of FIR No. 247/01 State Vs Gagan Khanna & Ors Page 15 of 46 PS : Hauz Qazi drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
22. Similarly the Hon'ble Apex Court, again in Central Bureau of Investigation, Hyderabad Vs K. Narayana Rao, 2012(9) SCC 512 has held that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence FIR No. 247/01 State Vs Gagan Khanna & Ors Page 16 of 46 PS : Hauz Qazi of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
23. Section 465, IPC provides punishment for forgery. Section 463 IPC defines forgery. Section 464 IPC defines "making a false document". The Sections read as under:
"463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. "464 Making a false document. --A person is said to make a false document or false electronic record-- First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or was made, signed, sealed, executed, FIR No. 247/01 State Vs Gagan Khanna & Ors Page 17 of 46 PS : Hauz Qazi transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
24. In order to prove forgery, the prosecution must establish beyond reasonable doubts:
a)that the document or electronic record or the part of it was false in fact;
b)that it had been made dishonestly or fraudulently within the meaning of the words used in Section 464, IPC; and
c) that the making of false document or electronic record was with intent to:FIR No. 247/01 State Vs Gagan Khanna & Ors Page 18 of 46
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d)Cause danger or injury to: (i) the public, or (ii) to any person; or
e) Support any claim or title; or
f) Cause any person to part with property; or
g) Enter into any express or implied contract; or
h)Commit fraud or that fraud may be committed.
25. The term 'fraud' in Section 463 implies an infringement of someone's legal right though not necessarily connected with deprivation of property. Intent to defraud implies (a) an intention to deceive and (b) such deception involving the causing of legal injury. Unless there is an element of fraud, the making of a false document would not amount to a forgery. It is worth noting that intention to cause injury is not an essential ingredient of the offence of forgery. As per Section 463, intention to cause damage or injury to the public or person is only one of the five situations. The other situations being: (i) to support any claim or title (ii) cause any person to part with property; (iii) enter into any implied or express contract; or (iv) with intent to commit fraud. The first component, namely, intention to cause damage is intent complete in itself. The definition in Section 463 is itself subject to the definition in Section 464, in which the FIR No. 247/01 State Vs Gagan Khanna & Ors Page 19 of 46 PS : Hauz Qazi two essential elements are that the act should be done 'dishonestly and fraudulently'. In other words, whichever of the intents as provided in Section 463 are applicable, the act itself must be done dishonestly and fraudulently to sustain the allegation of forgery.
26. In the present case, the story of the prosecution is that the accused persons had agreed to do an illegal act of printing fake degree certificates of Delhi University. It has been alleged that on 28.11.2001, all four accused had agreed to print fake degrees of Delhi University without any authorization given by the Delhi University and in furtherance of the agreement, they had also printed blank degree certificates of Delhi University with an intention to commit fraud. Accused Gagan Khanna, Rajender and Naved were found printing fake degree certificates by using a printing press. Various blank degree certificates of DU were recovered, which were found fake. On the disclosure statement of accused Naved, accused Burhan Khan was apprehended and one fake degree certificate had recovered at his instance. It has been alleged that when the police official reached at the alleged shop, the above mentioned three accused person had been printing fake degree certificates. The certificates which are allegedly seized by the IO were lying on the printing press FIR No. 247/01 State Vs Gagan Khanna & Ors Page 20 of 46 PS : Hauz Qazi as stated by the prosecution witnesses. However, after going through the material on record, I am of the opinion that the recovery has not been proved beyond reasonable doubts. It has come under the clouds of doubt.
27. As per the story of the prosecution, the raid was conducted on receiving secret information at about 7 p.m. However no public person had been given notice to join the investigation. It has come in the cross examination of the IO/PW7 that they had reached the spot after about 1020 minutes of receiving the secret information. He has also admitted that the place where secret information was received is a commercial area and many persons were present over there. The witness has stated that no shopkeeper was asked to join the raiding party and the distance between the place of information and the spot was about 100200 meters. He has also stated that the printing press was on the front side of the building and there were houses adjacent to the spot and public persons were available in those houses and those public persons were not asked to join the proceedings.
28. HC Udham Singh/PW2 has stated in his evidence that after receiving the secret information, 45 passerby were asked to join the investigation at Chaurasi FIR No. 247/01 State Vs Gagan Khanna & Ors Page 21 of 46 PS : Hauz Qazi Ghanta Temple. He has also stated that their were shops which were open and shopkeepers were present at that time but the shopkeepers were not asked by the IO to join the investigation. He has also stated that there was a house adjacent to the spot and there were adjoining houses but no one from those houses were asked by the IO to join the investigation.
29. It is thus clear from the evidence of the IO and other prosecution witnesses that public persons of nearby shops and houses were not asked to join the proceedings. There is nothing on record to show that the IO had served any notice under Section 160 Cr.PC. upon any public person to join the proceedings and the persons who had allegedly refused to join the investigation. It is admitted case of the prosecution that the spot in question was a commercial area and public persons were available there. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. This is the case even at the time of alleged arrest of accused Burhan Khan and alleged recovery at his instance. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two FIR No. 247/01 State Vs Gagan Khanna & Ors Page 22 of 46 PS : Hauz Qazi respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Nonavailability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
30. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
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31. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
32. The present case rests entirely on the alleged recovery of case property, i.e. some false printed degree certificates, from the possession of the accused persons at the relevant time by police officials after receiving secret information while they were allegedly on patrolling duty. The IO/PW7 in his cross examination has stated that a departure entry was made on the relevant day for patrolling in the area. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
FIR No. 247/01 State Vs Gagan Khanna & Ors Page 24 of 46PS : Hauz Qazi "22.49 Matters to be entered in Register No. II " The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
33. In the present case, as the record would reveal, since public persons were not joined in the investigation, the departure entry of the aforesaid police officials, who were allegedly on patrolling duty in the area at the relevant time could have been a vital piece of evidence. The IO/PW7 was specifically asked about any such DD entry. He had stated that such a entry was made. However, no such DD entry has been brought on Court record. There is thus no document on Court record to prove that the police officials concerned had left the police station for patrolling on the relevant date and time.
34. Further, as per the testimonies of the prosecution witnesses, the fake degree certificates recovered from the accused on 28.11.2001, along with FIR No. 247/01 State Vs Gagan Khanna & Ors Page 25 of 46 PS : Hauz Qazi other material, were sealed immediately after recovery with the seal of 'AA'. PW7 has stated in his cross examination that the seal was handed over to a constable after use. However, no handing over memo of the seal has been brought on the Court record. Further, HC Udham Singh in his evidence has stated that the seal was handed over him by the IO. On the contrary, IO /PW7 has stated that he had taken back his seal from Ct. Nagesh after depositing the case properties in the malkhana. As per the IO, he had handed over seal to Ct. Nagesh but HC Udham has stated that seal was given to him by IO. This material contradiction has remained unexplained. Thus, in the absence of any evidence, it is shown by the defence, on the balance of probabilities, that the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
35. Prosecution witnesses have deposed that the IO had seized the case property on 28.11.2001, vide memo Ex. PW2/A and Ex.PW6/F at the spot, and thereafter prepared the rukka Ex. PW7/A. It is, therefore, clear that the seizure memo of the case properties were prepared at the spot before the rukka was sent to the police station for FIR No. 247/01 State Vs Gagan Khanna & Ors Page 26 of 46 PS : Hauz Qazi registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW7/A bears the FIR number and case details. The PW7 in his examination has not stated that he had mentioned the FIR number later on. There is no evidence to this effect in the testimony of PW. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R.FIR No. 247/01 State Vs Gagan Khanna & Ors Page 27 of 46
PS : Hauz Qazi 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
36. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same FIR No. 247/01 State Vs Gagan Khanna & Ors Page 28 of 46 PS : Hauz Qazi time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
37. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex. PW7/A. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution.
38. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, daily diary entry regarding departure of the police officials has not been proved, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the FIR No. 247/01 State Vs Gagan Khanna & Ors Page 29 of 46 PS : Hauz Qazi seizure memo and rough sketch have not been explained, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out. The alleged recovery from the accused persons on 28.11.2001 has come under the clouds of doubts. Similarly, the recovery of the documents at the instance of accused Burhan Khan has also come under the clouds of reasonable doubts due to the reason that despite sufficient opportunity, no independent public person was joined as a witness.
39. Be that as it may, even if it is presumed that the alleged recovery was made from the accused persons, there is nothing on Court record to prove beyond reasonable doubts that the accused persons had printed those documents. Admittedly accused Burhan Khan was not found at the spot. He was apprehended later on and one fake degree certificate is shown to be recovered at his instance. Other three accused are shown to be arrested from the spot. It is alleged by the prosecution that they had been printing fake degree certificates on a printing press machine when they were apprehended. PW2 HC Udham Singh has stated that when they reached inside the printing press, Gagan Khanna was sitting in the chair and FIR No. 247/01 State Vs Gagan Khanna & Ors Page 30 of 46 PS : Hauz Qazi his servant Rajender was running the Press machine and Naved was standing near the printing machine. PW6 Ct. Nagesh, on the other hand, has stated that Rajendra was running the press, Naved was giving instructions to Rajender and Gagan Khanna was sitting on the chair. The IO/PW7 has stated that when they entered into the premises, Gagan Khanna was found sitting on the chair and was giving instructions to his employee Rajendra about printing of certificates and one another person namely Naved was also found there. Thus, as per the statement of IO, Naved was not involved in any act when they reached to the spot. However PW6 Ct. Nagesh has stated that Naved was giving instructions to Rajendra about printing of certificates. Thus, there are contradictions in the statement of prosecution witnesses about the role played by Naved in the printing of the certificates. It creates doubts on the entire story pf prosecution that the accused persons had been apprehended at the spot in the presence of police officials.
40. As per testimony of HC Udham Singh/PW2, printing machine was being run at the time when the premises was raided by the police officials. In examination in chief, PW6 Ct. Nagesh has also stated that when they reached, they found that Rajendra was running the press FIR No. 247/01 State Vs Gagan Khanna & Ors Page 31 of 46 PS : Hauz Qazi and about 56 papers were already printed and the remaining papers were yet to be printed. However, during cross examination PW 6 Ct. Nagesh has stated that the printing press was not running at the moment they reached on the said spot and they saw 45 printed papers lying next to the printing press.
41. Further, during cross examination HC Udham Singh has stated that when they had firstly entered the premises in question, Ct. Nagesh also entered into the premises with him and IO SI Antariksh Alok. However, Ct. Nagesh has stated in his crossexamination that he did not enter the premises raided to see the number of printing press machines lying there. However he was standing near the gate of the said premises in order to stop anyone from leaving the said premises. He has also stated that he could not tell whether the IO or any other member of the raiding team seized the printing press / machine which was found lying on the floor of the said premises on that day.
42. In the cross examination, HC Udham Singh has stated that the printing press was got inspected by an expert in his presence. On that day an expert was summoned by the IO at the spot. The expert had taken photographs of the said printing press from different FIR No. 247/01 State Vs Gagan Khanna & Ors Page 32 of 46 PS : Hauz Qazi angles and he had also taken notes on that day. The notes of the said expert have not been placed on record alongwith the chargesheet to prove that any such expert was called at the spot for inspection of the machine. There is no explanation as to why the said printing press was not seized. The IO/PW7 in his testimony has not mentioned about calling of any such expert. Admittedly, no FSL result was obtained to prove that the documents allegedly seized from the spot were printed by the accused persons by using the printing press allegedly found on the spot. Therefore, reasonable doubts have been raised on the case of the prosecution. It stands not proved beyond reasonable doubts that the accused persons had prepared any false documents as alleged by the prosecution. Benefit of doubts is to be given to the accused persons.
43. Further, even if it is presumed that the accused persons were in possession of those fake degree certificates, it has not been proved beyond reasonable doubts that they had committed forgery as defined under IPC and which is punishable by the law. One of the necessary ingredient of the forgery is intention to defraud. Hon'ble Supreme Court of India in Dr. Vimla vs Delhi Administration, 1963 AIR 1572 has discussed the law relating to forgery. It has held as under:
FIR No. 247/01 State Vs Gagan Khanna & Ors Page 33 of 46PS : Hauz Qazi "11. The Calcutta High Court dealt with this question in Surendra Nath Ghose v. Emperor [ILR (1911) 38 Cal 75, 8990] . There, the accused affixed his signature to a kabuliat, which was not required by law to be attested by witnesses, after its execution and registration, below the names of the attesting witnesses but without putting a date or alleging actual presence at the time of its execution.
The court held that such an act was not fraud within the first clause of Section 464 of the Penal Code inasmuch as it was not done dishonestly or fraudulently within the meaning of Sections 24 and 25 thereof. Mookerjee, J., defined the words "intention to defraud" thus:
"The expression, 'intend to defraud' implies conduct coupled with intention to deceive and thereby to injure; in other words, "defraud" involves two conceptions, namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property."
"This view is in accord with the English decisions and that expressed by the Full Bench of the Madras High Court. This decision does not throw any light on the other question whether advantage to the deceiver without a corresponding loss to the deceived would satisfy the second ingredient of the expression "intent to defraud".
"5. Before we consider the decisions cited at the Bar, it would be convenient to look at the relevant provisions of the Indian Penal Code:
"xxx "The definition of "false document" is a part of the definition of "forgery". Both must be read together.FIR No. 247/01 State Vs Gagan Khanna & Ors Page 34 of 46
PS : Hauz Qazi If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows: (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in Section 464 i.e. "fraudulently" and the intention to commit fraud in Section 463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other intentions mentioned in Section
463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of many decisions. We shall consider that question at a later stage in the light of the decisions, bearing on the subject. The second thing to be noticed is that in Section 464 two adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings. Section 24 of the Penal Code defines "dishonestly" thus:
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'.
"Fraudulently" is defined in Section 25 thus: "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".FIR No. 247/01 State Vs Gagan Khanna & Ors Page 35 of 46
PS : Hauz Qazi "The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further, the juxtaposition of the two expressions "dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary ingredient. Both need not exist, one would be enough. So too, if the expression "fraudulently" were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of "fraud" would include not only deceit, but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "fraudulently" it would be enough if there was a noneconomic advantage to the deceiver or a noneconomic loss to the deceived. Both need not coexist.
"6. Let us now consider some of the leading text book writers and decisions to ascertain the meaning of the word "fraudulently".FIR No. 247/01 State Vs Gagan Khanna & Ors Page 36 of 46
PS : Hauz Qazi "7. The classic definition of the word "fraudulently" is found in Stephen's History of the Criminal Law of England, Vol. 2, at p. 121 and it reads:
"I shall not attempt to construct a definition which will meet every case which might be suggested, but there is little danger in saying that whenever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition of a crime two elements at least are essential to the commission of the crime:
namely, first, deceit or an intention to deceive or in some cases mere secrecy; and secondly, either actual injury possible in jury or to a risk of possible injury by means of that deceit secrecy.... This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object nearly every case is his own advantage.... A practically conclusive test of the fraudulent character of a deception for criminal purposes is this: did the author of the deceit derive any advantage from which could not have been had if the truth had been known? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud."
"It would be seen from this passage that "fraud" is made up of two ingredients deceit and injury. The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea pursued in later decisions.FIR No. 247/01 State Vs Gagan Khanna & Ors Page 37 of 46
PS : Hauz Qazi
"8. As regards the nature of this injury, in Kenny's Outline of Criminal Law, 15th Edn., at p. 333, it is stated that pecuniary detriment is unnecessary. In Baycraft v. Creasy [(1801) 2 East 92] LeBlanc, J., observed:
"by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the illwill towards the other is immaterial".
"This passage for the first time brings out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived. Buckley, J., in Re London & Globe Finance Corporation Ltd. [(1903) 1 Ch 732] brings out the ingredients of fraud thus:
"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."
"The English decisions have been elaborately considered by the Court of Criminal Appeal in R. v. Welham [(1960) 1 All ER 260, 264, 266] . In that case, hirepurchase finance companies advanced money on a hirepurchase form and agreement and on creditsale agreements witnessed by the accused. The form and agreements were forgeries. The accused was charged with offences of uttering forged documents with intent to defraud. It was not proved that he had intended to cause any loss of money to the finance companies. His FIR No. 247/01 State Vs Gagan Khanna & Ors Page 38 of 46 PS : Hauz Qazi intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which he would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law at the time. The court held that the said intention amounted to intend to defraud. Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that "to defraud" is "to deprive by deceit". Adverting to the argument that the deprivation must be something of value, i.e, economic loss the learned Judge observed:
"We have, however, come to the conclusion that this is too narrow a view. While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss, there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that he suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had he not been deceived."
"On the basis of the said principle, it was held that the accused by deceit induced the finance companies to advance moneys contrary to the credit restrictions and that he was guilty of the offence of forgery. This decision is therefore a clear authority for the position that the loss or the injury caused to the person deceived need not be economic loss. Even a deprivation of a right without any economic consequences would be enough. This decision has not expressed any definite opinion on the question FIR No. 247/01 State Vs Gagan Khanna & Ors Page 39 of 46 PS : Hauz Qazi whether a benefit to the accused without a corresponding loss to the person deceived would amount to fraud. But it has incidentally touched upon that aspect. The learned Judge again observed:
"...This the appellant was doing in order that he might benefit by getting further loans."
"This may indicate that a benefit derived by the person deceiving another may amount to an act to defraud that other.
"9. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor[(1905) ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving."
"10. He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B."FIR No. 247/01 State Vs Gagan Khanna & Ors Page 40 of 46
PS : Hauz Qazi "The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
"But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114: "I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its byelaws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on winch alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."FIR No. 247/01 State Vs Gagan Khanna & Ors Page 41 of 46
PS : Hauz Qazi "Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition.
"12. A division Bench of the Bombay High Court in Sanjiv Ratnappa v. Emperor[AIR 1932 Bom 545, 550] had also occasion to consider the scope of the expression "fraudulently" in Section 464 of the Penal Code. The court held that for an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other. Adverting to the argument that an advantage secured by the deceiver would constitute fraud, Broomfield, J., observed thus:
"I think in view of the Bombay decisions to which I have referred we must hold that that is an essential ingredient in the definition of forgery. In the great majority of cases, the point is not very material.... But there may occasionally be a case in which the element of loss or injury is absent, and I think the present is such a case."
"This decision therefore does not accept the view of White, C.J., of the Madras High Court. "13. A Division Bench of the Lahore High Court, in Emperor v. Abdul Hamid [AIR 1944 Lah 380, 382] had also expressed its view on the meaning of the word "fraudulently". The learned Judges FIR No. 247/01 State Vs Gagan Khanna & Ors Page 42 of 46 PS : Hauz Qazi accepted Stephen's definition but proceeded to observe as follows:
"It may be noted in this connection that the word "injury" as defined in Section 44 of the Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property".
"The learned Judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by Section 44 of the Penal Code. "15. To summarize: the expression "defraud"
involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a noneconomic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
44. In the present case also, as the record would reveal that there is no material on Court record to prove beyond reasonable doubts that by printing those documents the accused has committed fraud with anyone or that they had intention to commit fraud with someone. Mere possession of those fake degree certificates does not amount to forgery as defined under Section 463 IPC r/w FIR No. 247/01 State Vs Gagan Khanna & Ors Page 43 of 46 PS : Hauz Qazi Section 464 IPC. Benefit of doubts is therefore given to the accused persons.
45. Further, there is one aspect also which creates doubts on the case of the prosecution. The complainant in this case is SI Antriksh Alok. The FIR was registered on the complaint made by him. He remained the IO of the case during almost entire investigation. Almost entire investigation was done by him. At the time of preparation of challan only the case file had come in the hands of other IOs. Even though there is no bar as such that a police officer who made the complainant can not conduct investigation. However, for fair investigation it become necessary that the investigation should be done by some other officer than the complainant. Hon'ble Supreme Court of India in Megha Singh vs State Of Haryana, AIR 1995 SC 2339 had the occasion to discuss such a situation. After discussing the other reasonable doubts on the case of prosecution, the Hon'ble Court has observed as under:
"4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being FIR No. 247/01 State Vs Gagan Khanna & Ors Page 44 of 46 PS : Hauz Qazi conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
46. In the present case also, even though this fact alone may not be relevant. But after considering the entire evidence on record and the way in which the investigation has been conducted, this fact creates reasonable doubts on the entire story of recovery as stated in the final report and statements of police witnesses.
47. The accused persons have also been charged for offence of criminal conspiracy under Section 120B, IPC. However, in the light of the findings recorded hereinabove, I am of the opinion that there is no reasonable ground to believe that accused persons had conspired to commit an offence or an actionable wrong.
48. In the light of discussion hereinabove, I hold that the prosecution has failed to establish any of the charge against any of the accused beyond reasonable doubts. It is settled position of law that where two views FIR No. 247/01 State Vs Gagan Khanna & Ors Page 45 of 46 PS : Hauz Qazi are possible in a criminal trial, the view which favours the accused has to be accepted by the Court of law. The benefit of doubts is given to the accused persons. They are acquitted of the charges leveled against them.
49. The accused persons have already furnished bonds with one surety each under Section 437A, with photographs and copies of address proof. Digitally signed by DINESH DINESH KUMAR Date:
KUMAR 2018.07.18
17:05:39
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 18th day of July 2018. MM08 (Central) Tis Hazari Courts, Delhi FIR No. 247/01 State Vs Gagan Khanna & Ors Page 46 of 46 PS : Hauz Qazi