Delhi District Court
Dr. Alok Kumar S/O Ganesh Prasad Arya vs State (Through Cbi) on 19 September, 2013
IN THE COURT OF SHRI INDER JEET SINGH:
ADDITIONAL SESSIONS JUDGE03 (NE): KARKARDOOMA
COURTS: DELHI.
Cr. Appeal. No.06/12
PS Shahdra
Date of filing : 04.07.2012
Date of Institution : 05.07.2012
Decision reserved on : 10.09.2013
Date of decision : 19.09.2013
Dr. Alok Kumar S/o Ganesh Prasad Arya
R/o Punch Mohalla Main Road, Jehanabad,
District Jehanabad, Bihar. ... Appellant
Versus
State (through CBI)
... Respondent
RC13 (S)/01
U/s 420/468/471/511 IPC
JUDGMENT:
1. (Introduction) - One Mr. Rajeev Kumar and the present appellant Alok Kumar were charged u/s 120B r/w section 419/420/468/471 IPC that they had entered into a criminal conspiracy and consequent thereto the appellant Alok Kumar appeared for Rajeev Kumar in written examination of B.Sc (Hons.) Paramedical Course, Cr. A. No.06/12 1/26 on 27.06.2001 at Cambridge School, Sriniwaspuri, Delhi. The present appellant Alok Kumar was also charged u/s 419/420/468/471 IPC that he impersonated as Rajeev Kumar in the said examination conducted by AIIMS, New Delhi, by adopting deceitful means and in pursuance thereof was instrumental in preparing certain forged documents knowing that the same were not genuine. That the said Rajeev Kumar was also charged u/s 420 IPC r/w 511 IPC. However, they had pleaded not guilty and claimed trial.
After trial the appellant has been acquitted of charge u/s 120 B IPC, but he has been held guilty u/s 419, 420 r/w 511 IPC, he has also been held guilty u/s 468, 471 IPC, by judgment dated 04.06.2012 by the court of Sh. Shailender Malik, ACMM02, North East District, Karkardooma Courts, Delhi. The appellant has been sentenced to rigorous imprisonment for a period of two years with fine of Rs.2000/ for offence u/s 419/420 r/w section 511 IPC; he is also sentenced three years RI with fine of Rs. 2000/ for offence u/s 468 IPC, further SI for three years with fine of Rs. 2000/ for offence u/s 471 IPC, in default of payment of fine to go further RI for three months. He was given benefit of section 428 Cr PC vis a vis all the sentences will run concurrently. The Cr. A. No.06/12 2/26 appellant Alok Kumar is feeling aggrieved by the impugned judgment and order on point of sentence, he assails the impugned judgment and order in the appeal.
2. In order to appreciate the contention of parties, the matrix of case of the parties, as set out, is introduced herein below: 2.1 (Case of prosecution / respondent) The All India Institute of Medical Sciences (in brief AIIMS), examination section appointed applications for entrance examination for admission of B.Sc (Hons.) Paramedical Course of AIIMS, 580 applicants applied, out of them 577 were found eligible. The examination was to be held on 27.6.2001 at Cambridge School, Sriniwas Puri, New Delhi, the said 577 candidates were assigned roll No. 5001 to 5577. All cautions and precautions were taken during conduct of examination on 27.6.2001 before session of commencement of examination at 9 a.m. to 10.30 a.m., during the session of examination and till the things were packed up. Even some of the rooms of center or candidates were photographed / video photographed, but subsequently those candidates were found genuine.
2.2 The result was declared and candidates were called for counseling. The first counseling was held on 24.7.2001, the Cr. A. No.06/12 3/26 second counseling was held on 30.7.2001 and in the first counseling one case of impersonation was detected and six cases were detected in the second counseling. One of the candidate namely Rajeev Kumar s/o Prakash Narain Sinha, having roll No.5404 was detected in the second counseling on 30.7.2001, he apologized by his letter (Ex.PW5/3 = Ex.3). Considering the cases of impersonation, the then Director / PW9 of AIIMS wrote complaint (Ex.PW1/A) for investigation. The said candidate Rajeev Kumar had disclosed name of one Rajesh and another of Maharana in his letter (Ex.PW5/3 = Ex.3), therefore, after registration of case the investigation begun. In investigation, it led to the office of CBSE where name of Alok Kumar was deciphered from the record / his application form, bearing his photograph, from the office of CBSE, New Delhi (All India Premedical / Pre dental Examination 2001). It further led to reach Principal MKCG Medical College, Berhampur, from there record and writings of Alok Kumar (seized vide seizure memo Ex.PW4/1) were discovered and also record (Ex.PW3/1) pertaining to stay of Alok Kumar alongwith one Mr. Pankaj in Paramount Hotel, Pahar Ganj, Delhi, where they stayed before the evening of examination. During investigation, the record of admit card (Ex.PW10/DA), Cr. A. No.06/12 4/26 attendance list (Ex. PW7/1), question paper (Ex.PW7/2), answer sheet (Ex.PW7/C), beside record of application forms (Ex.PW5/1), counseling slips (Ex.PW5/2) were collected and specimens (S1 to S41, S42 to 100), words, phrases, symbols - scientific or otherwise etc. were obtained and collected, they were sent for scientific opinion by expert with regard to admitted writings, questioned documents and specimens. The handwriting expert had also given his report (Ex.PW11/1). Ultimately, accused Rajeev Kumar and present appellant Alok Kumar were charge sheeted and they were charged under various heads of IPC.
2.3 At the stage of evidence the said accused Rajeev Kumar opted for plea bargaining, he was held guilty and convicted by the Metropolitan Magistrate, Delhi.
2.4 However, in order to establish the charge, the prosecution had examined 11 witnesses, out of them, PW9/ the then Director AIIMS is author of FIR, PW10 Shri Sanjay Sharma is the Investigating Officer and PW11 Shri N.C. Sood, Retired Govt. Examiner is handwriting expert, who had examined specimen, admitted and questioned documents; the opinion (Ex.PW11/1) was tendered. PW3 Sh. Pawan Arora is owner of Hotel Paramount who brought the record pertaining to visitors, who were staying in Cr. A. No.06/12 5/26 the hotel particularly record of 26.6.2001 (Ex.PW3/1) with regard to one Pankaj Kumar and one Alok Kumar, who stayed in room No.206 at 2nd floor. Witnesses namely PW1 Sh. Narender Kumar Gupta is Assistant (NS) in Examination Section of AIIMS, PW2 Dr. Yogender Kumar Gupta is Professor Incharge Examination Section, AIIMS / head of the department / examination center, PW6 Shri Krishan Kant Sharma is LDC and PW7 Sh. Prakash Chander Joshi is UDC in AIIMS and they were invigilators on the day of examination. PW8 Sh. Nitin Ranjan Parashar is Vice Principal and he was Central Superintendent on the day of examination, which was conducted in his school at Cambridge School, Sriniwas Puri, being venue of examination. PW4 Sh. Pawan Arora is working in the office of Principal MKCG Medical College, Braham Pur, Orrisa, who provided descriptive role (vide seizure memo Ex.PW4/1) of Alok Kumar.
3. (Case of appellant before trial court) - All the prosecution witnesses were cross examined on behalf of Alok Kumar to establish that he is nowhere in the picture or he has been falsely implicated or there is no material to link him with the writings of any kind or pertaining to examination. The appellant was also examined without oath u/s 313 Cr.P.C. and he had denied all the Cr. A. No.06/12 6/26 allegations, by substantiating that he is innocent and he was forced to sign on many papers, his writings have been taken forcibly like disclosure statement vis a vis it is not the evidence nor it is reliable and a false evidence has been led against him.
4. (Findings of the trial Court) - The trial court of Sh. Shailender Malik, Ld. ACMM, North East, KKD Courts, Delhi, has not only discussed the case of both parties in detailed judgment but also referred the relevant testimony of witnesses as well as documents. The trial court concludes that many documents like identification memo (Ex.PW10/2), pursuant to disclosure statement of Rajeev Kumar, disclosure statement dated 1.11.2002 of Sh. Alok Kumar (Ex.PW10/4) and pointing out-cum-recovery memo dated 1.11.2002 (Ex.PW10/5) may not have great evidence value but the same are to be considered by keeping in mind all the circumstances. The co accused Rajeev Kumar has not only led the police / investigating agency to the office of CBSE, Delhi, where certain records were recovered pertaining to accused Alok Kumar but also many things have been discovered like places of stay in Paramount Hotel, then his specimens were tallied with the questioned documents (attendance sheet, answer sheet) which was carrying his writing and positive report (Ex.PW11/1) has been Cr. A. No.06/12 7/26 given by expert PW1 Sh. N.C. Sood, examiner. The trial court in paragraph 39 to 42 has discussed the law on the point of competency of witness like handwriting expert as well as the law on the point of handwriting, that either the writing can be proved by calling the person, who wrote the document and admission by the person against whom writing has been tendered or the person who had seen him writing or signing, however, the trial court also observed that these situations are not existing in the case in hand. With regard to other situations, the trial court came to the conclusion that questioned documents were compared by the expert with the specimen and admitted writing of appellant Alok Kumar, which came to positive report against the appellant Alok Kumar, it was believed by the trial court.
Lastly, the trial court considered other circumstances in its cumulative effect that it was Alok Kumar who came to Delhi and stayed in Paramount Hotel and had appeared in entrance examination for Rajeev Kumar by impersonating him, his writings appearing on attendance sheet, answer sheet etc. tallies his admitted writing and specimens obtained during investigation. The co accused Rajeev Kumar had also accepted his guilt in plea bargaining session for which he was held guilty separately. Cr. A. No.06/12 8/26 Ultimately the present appellant Alok Kumar has also been held guilty.
5. 1 (Plea in appeal) - The appellant assails the impugned judgment, on the grounds, which have been reflected in paragraph 4 above as well as also challenges the case of prosecution, which has already been reflected in paragraph 2 above.
In nutshell, it is the duty of prosecution to prove the case beyond reasonable doubt. There is no eye witness in the case, therefore, it is a case of circumstantial evidence but in case of circumstantial evidence, each circumstances shall link to another circumstance and then in the entire chain of circumstances there should be a corroboration, which may conclude nothing else but guilt of accused. It is lacking in the case of prosecution. In the entire record, nowhere it is appearing that Rajeev Kumar had seen or came in contact with Alok Kumar. The prosecution has not held any test identification parade during investigation qua any of the person present in examination room but it refers record of CBSE during Medical / Pre dental examination of Alok Kumar, this kind of identification is alien to criminal administration of justice. The appellant relies upon the following case law: (C1) Padala Veera Reddy vs State of Andhra Pradesh and Ors AIR Cr. A. No.06/12 9/26 1990 SC 79, the text for circumstantial evidence was discussed, when there is no direct evidence to connect the accused with offence, (1) that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(C2) Sampath Kumar vs Inspector of Police, Krishnagiri Manu/SC/0188/2012, on the point of standard of proof and the test which circumstantial evidence must satisfy, are (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
5.2 The prosecution has relied upon extrajudicial confession (Ex.PW5/3) of Rajeev Kumar, it is also inadmissible in evidence Cr. A. No.06/12 10/26 as neither this letter can be treated extra judicial confession nor it was out of free volition but under pressure of officials, it was got recorded and extra judicial confession ought to voluntarily in the presence of known person. Moreover, it does not name appellant Alok Kumar. The other circumstances are also not making a complete chain of facts to be inferred against the appellant, therefore, a vital aspect of circumstantial evidence is missing. Ld. Counsel fortifies his contention while relying upon:
(1) Sk. Yusuf vs State of West Bengal AIR 2011 SC 2283 held that circumstances of extra judicial confession is a weak type of evidence and requires appreciation to with great caution. The extra judicial confession must be established to be true and made voluntarily and in a fix state of mind. The words of the witness must be clear unambiguous and they clearly, convey the accused is perpetrator of crime. The extra judicial confession can be accepted and can be basis of conviction if it passes the test of credibility.
(2) Sunil Rai @ Paua and Ors vs Union Territory, Chandigarh AIR 2011 SC 2545 held the extra judicial confession could not be considered a strong piece of evidence when it is orally made before a person with whom the author of confession had no intimate relationship, however, it could be used only for corroboration.
Further, extra judicial confession by one of the three accused could not be treated as a substantive evidence against the other two accused.
5.3 The well known law on the point of identification is that a Cr. A. No.06/12 11/26 natural person identifies the other person, there is no concept of identification of a person on photograph or scanned copy of photograph or photo copy of a positive. The police relies upon version of accused Rajeev Kumar that he identified Alok Kumar in the record of CBSE, Delhi. Since the appellant Alok Kumar has not been identified by any of the prime witnesses like PW1, PW2, PW6, PW7 and PW8 claiming to be either invigilator in the examination center or supervising the examination center, the appellant should not have been held guilty for want of proof of his identity, reliance is placed on: (1) Amit Pratap vs State 2012 (1) JCC 86 held the confession of petitioner have led to no recovery or discovery of fact, merely on the basis of disclosure statement of coaccused and before the police, which are inadmissible in evidence, no charge was made out. It is settled law that confession of an accused before police officer or in police custody is inadmissible.
(2) Hari Charan Kurmi and Jogia Hajam vs State of Bihar 1964 Crl. J. 344 held in criminal cases where the other evidence adduced against accused person is wholly unsatisfactory and the prosecution seeks rely on confession of coaccused, the presumption of innocence which is basis of criminal jurisprudence assist the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.
Cr. A. No.06/12 12/26 (3) Rakesh Kumar vs State 109 (2004) DLT 826 while relying upon precedent Sukhvinder Singh & Ors vs State of Punjab 1994 3 SCR 1061, it was held that specimen / thumb impression / finger print impression obtained during investigation without permission from the court, such specimen / thumb impression / finger print impression could not be made use thereof during trial and report of expert is rendered of no consequences at all and cannot be used to connect the appellants with crime.
(4) Suresh Budharmal Kalani @ Pappu Kalani vs State of Maharashtra AIR 1998 SC 3258 while dealing with the provisions of section 3 (4) of TADA, section 212 of IPC and the confessional statement, it was held that self exculpatory and the same is inadmissible in evidence as confession, consequently appeal was allowed.
(5) Mahadev Prasad Pant vs State of Delhi 2007 (96) DRJ 167 it was a case of robbery and of murder of circumstantial evidence, the disclosure statement was not found reliable and while relying upon section 5 of the Identification Prisoner Act, 1920 that the finger prints of accused were taken in violation of the provisions of act and without the permission of court, the case of Sukhviner Kaur & Ors vs State of Punjab 1994 3 SCR 1061.
(6) Rajeevan and Anr. vs State of Kerela AIR 2003 SC 1813 held, it is essential that delay in lodging the FIR should be satisfactorily explained. Held that case against appellant could not be proved beyond reasonable doubt.
(7) Kishan Singh (D) through Lrs vs Gurpal Singh and Ors AIR 2010 SC 3624 held that prompt and early reporting of the Cr. A. No.06/12 13/26 occurrence by the informant with all detail gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging FIR does not make complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging complaint is always fatal. (8) Raman Kumar vs State of Delhi Manu /DE/76/2012, the specimen handwriting of accused for comparing with impugned letters was never taken before the Magistrate, no permission was sought from the court to obtain specimen handwriting and signature and police also failed to explain this serious lapse and no independent public witness was joined at the time of obtaining specimen handwriting and signature during custody, the benefit was ultimately given to accused.
(9) Sukhvinder Singh and Ors vs State of Punjab JT 1994 (4) SCI, while discussing the case dependent upon circumstantial evidence, it was held that there were chain of circumstances which were establishing guilt of appellant no. 1 but the circumstances failed to connect the other appellants with guilt beyond reasonable doubt, the conviction of other appellants was set aside. (10) State of UP vs Preetam Singh JT 2011 (4) SC 156, the order of trial court was set aside by the High Court and Hon'ble Supreme Court of India held that the High Court was justified in setting aside order of conviction of all accused as the prosecution could not prove the case beyond reasonable doubt and High Court has held that respondent had established their plea of self defence; the person shall be entitled for acquittal even by proving evidence on record.
Cr. A. No.06/12 14/26 5.4. The appellant was accused and his specimens were taken forcefully without the permission of court. The process of obtaining specimens / writings without the permission of court are inadmissible and the same are to be excluded from considering them as an evidence. In addition, the handwriting expert has to assign reasons for his opinion and conclusion in the report. Whereas for want of permission from the Magistrate for specimens / writings, the specimens of Alok Kumar cannot be considered and opinion Ex.PW11/1, for want of reasons is also not acceptable but the trial court has considered them, which is contrary to law. The appellant relies upon : (1) Riaz Ali vs State (Delhi), 194 (2012) Delhi Law Times 706. On the point of section 27 of the Indian Evidence Act, held it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the facts discovered embraces the place from which object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Further on the point of scientific expert report, in reference to section 25 of the Indian Evidence Act and Section 293 (4) of Cr PC, it was held that FSL report is a relevant piece of evidence and it is admissible u/s 45 of the Indian Evidence Act. (2) Jasbir Singh vs NCB 2007 (98) DRJ 404 held the opinion of handwriting expert being personal in nature, there can be no secondary evidence of the same. Since the handwriting expert had Cr. A. No.06/12 15/26 died, therefore, prosecution had no option but to send specimen handwriting of the petitioner to another handwriting expert for fresh comparison.
(3) Krishna Kanta Das vs State of Assam 2005 (2) Crimes 174 the accused in trying to chew and eat the notes, are strong circumstances against the accused and the same give rise to suspicion that the currency notes, which he had attempted to eat, were fake one, the fact remains that the suspicion, howsoever strong, cannot take place of proof, for, every individual placed in a given situation, may react differently. For an opinion to be accepted by the court, the expert must assign reasons and in absence of reasons, opinion was useless.
(4)Sukhvinder Singh and Ors vs State of Punjab JT 1994 (4) SCI, the specimen writing of Sukhdev Pal was taken by Tehsildar Magistrate, however, it has been held that such specimen of Sukhdev Pal taken u/s 73 of Indian Evidence Act without the permission of Magistrate, render it of no consequences and cannot be used against him to connect him with the crime. 5.5 Not only the trial court failed to address the contentions of accused Alok Kumar but also it has given findings contrary to facts and evidence on record, which has resulted into miscarriage of justice but also taken into account that coaccused Rajeev Kumar had opted course of plea bargaining and he was held guilty but this factum could not have been considered the appellant Alok Kumar as it is barred by Section 265K of the Code of Criminal Cr. A. No.06/12 16/26 Procedure, 1973.
It is concluded, the impugned judgment is liable to be set aside, consequently, the order on point of sentence and appellant deserves acquittal.
6. Sh. Deep Narain, Additional Public Prosecutor for CBI /State, has opposed the appeal being without merit and the respondent fortifies its contention while relying upon the reasons given by the trial court. The things were behind the veil till investigation was conducted and and when Rajeev Kumar was attending the counseling, the things were unfolded. Thence, one after the other aspects were discovered, which led to discovery of not only identity and record of appellant Alok Kumar but also the place where appellant Alok Kumar had stayed alongwith one Pankaj in Paramount Hotel, the register of Paramount Hotel proves his stay there immediately before the day of examination. When, the more aspects were discovered, it result into not only recovery and discovery of admitted writings of appellant Alok Kumar but also his specimens were compared by expert, which gave positive opinion by witness PW11. In fact, the trial court has carried minute scrutiny of statement of witnesses as well as the documentary record, after assessing them with the test of law the Cr. A. No.06/12 17/26 final finding of guilt has been found. It has been rightly concluded that respondent had succeeded to establish its case against the appellant, for which he was charged.
The extra judicial confession, the circumstantial facts and evidence is linking one after the other, it destinate to the record and to appellant Alok Kumar, then final opinion has been reached by handwriting expert. The chain of facts and circumstances had proved the case against appellant. Moreover, the trial court had also awarded appropriate and proposition sentence, which meets the requirement of law also. The appeal deserves dismissal.
7. Hon'ble High Court of Delhi in Raj Kumar vs State (Criminal M. A no. 14076/2012 and in Criminal appeal no.582/12, date of decision 18.10.12) discussed the law, while referring the earlier cases dealt as well as precedent State of UP vs Ram Babu Mishra 1982 SCC 343 etc and both the parties were asked that they may clarify and also advanced arguments on this issue. Sh. Deep Narain, Ld. Addl. PP for the State /CBI/ respondent requests that prior to amendment and incorporation of section 311A in the Code of Criminal Procedure 1973, there was no bar with the investigating agency to obtain specimen and signatures / writings of the accused and to have the handwriting expert opinion, Cr. A. No.06/12 18/26 therefore, the specimen of appellant Alok Kumar could have been obtained, the same were obtained and it were got examined from the handwriting expert, who had already tendered opinion. The appellant cannot take any benefit out of the ratio laid down in Raj Kumar vs State (Supra).
Whereas Ld. defence counsel Sh. U.B.N. Sinha, Advocate submits that in fact Raj Kumar's case (Supra) reaffirms the case of appellant that writing and specimens of appellant obtained without the permission of Metropolitan Magistrate, Delhi, it has no evidentiary value. Moreover, in Raj Kumar vs State case, application u/s 391 Cr PC for leading additional evidence was under consideration but no such application is there for consideration by the appellant court. The opinion (Ex.PW11/1), which even does not give any reason of arriving at the conclusion by the handwriting experts, carries no evidentiary value and it cannot be considered. The specimen and writings are to be excluded from evidence.
7.1 (Findings) The rival contentions are assessed, keeping in view the material on record, which is available in the form of statement of witnesses or documentary record inclusive of specimens and writings of appellant, on which expert opinion has Cr. A. No.06/12 19/26 also been given, in the light of statutory provision of law. In nutshell the appeal raises points and confines on grounds of exclusion of specimen and writings vis a vis expert opinion, circumstantial evidence, extrajudical confession, point of test identification parade and others. The same are taken one by one. 7.2 The trial court in its judgment has reflected that coaccused Rajeev exercised option of plea bargaining, he had pleaded guilty and it is submitted that Rajeev Kumar's plea of guilt cannot be considered and treated against the appellant. Section 265K of Cr PC mandates that the contents of application for plea bargaining filed by the accused persons, shall not be used for any other purpose except for the purposes of chapter XXIA (Plea bargaining) of Code of Criminal Procedure, 1973. However, the trial court has not exclusively relied upon plea bargaining application of Rajeev Kumar but it was considered one of the aspect, otherwise, section 265K Cr PC bars that statement of an accused cannot be used for the purposes other than for the purposes of chapter XXIA Cr PC.
7.3 The trial court has relied upon specimens and writings of appellant Alok as well as the opinion (Ex. PW11/1) of expert, the respondent also derives its reasons to oppose the appeal. What Cr. A. No.06/12 20/26 exactly law is with regard to writings and specimens. Section 3 of Identification of Prisoner Act, 1920 (in brief Act 1920) talks about measurement etc of convicted persons, section 4 of the Act 1920 talks about measurement in respect of non convicted person if required by the police and section 5 of the Act 1920 talks about measurements or photographs if required during investigation or proceeding under the court but the same are to be obtained pursuant to order by the Magistrate, who may order after his satisfaction. Section 4 of the Act 1920 does not permit for photographs. Section 2(a) of the Act 1920 defines measurement which includes finger impression and foot print impressions. To say sections 3, 4 and 5 of the Act 1920 do not apply in respect of specimens or writings of any person.
Section 73 of the Indian Evidence Act, 1872 talks about writings or specimens but it can be carried with the permission of court during proceedings before the court, for the purposes of necessary comparison etc. To say section 73 of the Indian Evidence Act does not come into picture with regard to writing, signature etc at the stage of pending of investigation. There was no provision either in the Code of Criminal Procedure or the Indian Evidence Act or the Identification of Prisoner Act 1920 with Cr. A. No.06/12 21/26 regard to obtaining of writings or specimen of a person during investigation, till 23.06.06 when section 311A IPC was introduced that signature or specimen or handwriting of any person including an accused may be obtained with the permission of Magistrate. In fact, deficiency of such provision was observed and discussed in State of UP vs Ram Babu Mishra (Supra) but it was remedied by incorporating section 311A Cr PC 1973 by way of amendment w.e.f 23.06.06. However, this amendment is prospective in nature, it is not retrospective. In the precedent / case law presented on behalf of appellant as well as in Raj Kumar vs State (Supra) and in Avdesh Kumar vs State Criminal appeal no. 51/01 (decided on 14.05.09 by Hon'ble High Court of Delhi) it has been clearly held that the writing or specimen obtained prior to coming enforce section 311A Cr PC are to be excluded and they cannot be considered, if they are obtained without permission of the court, the appellant Alok Kumar was arrested in 2002, however, there was no permission from the Magistrate for obtaining his writing or signature for the purposes of comparison with the admitted signature, therefore, the record of specimens or writings, which was secured without permission of the court are to be excluded from the consideration as an evidence. An allied issue was that Cr. A. No.06/12 22/26 handwriting expert had not tendered his opinion in report (Ex. PW11/1) whereas the reasons/ opinion are separately mark X in three sheets. Since writings and specimens are being excluded from considering, in view of the precedent and law laid down therein, consequently opinions are excluded to be considered. 7.4.1 By going through the statement of all witnesses, it is apparent that there is no direct evidence, it is a case of circumstantial evidence. In case of circumstantial evidence, each aspect of evidence is required to be linked with another aspect, drawing one conclusion but none else, towards the guilt of accused. It can be said in other words, that all the aspects of circumstantial evidence are not coming in a manner which is leading to the innocence of accused but are contrary to his innocence, they are corroborating each other.
PW1, PW2, PW6, PW5, PW7 and PW8 are associating with the venue of examination Center or in respect of a room where Rajeev Kumar was to write the paper, but none of the witnesses pertaining to examination Center had identified appellant Alok Kumar to be the person sitting and writing examination for Rajeev Kumar. Secondly, no judicial TIP of Alok Kumar was conducted from any of the invigilator / witnesses that Cr. A. No.06/12 23/26 it was appellant who was actually sitting and writing exam for Rajeev Kumar. As per evidence on record, the said Rajeev Kumar and Alok Kumar never met each other. The specimen or writings or opinion on such writing have already been excluded for consideration to be an evidence and other circumstances pertaining to examination Center or Hall are not proving that appellant was actually writing examination for Rajeev Kumar. 7.4.2 So far allied aspect that train ticket was booked or the appellant had stayed in Paramount Hotel are not being corroborated from the memo / statement / Ex. PW5/5 of Rajeev Kumar, as he does not name Alok Kumar in his apology to the AIIMS, New Delhi. To say, there is no extrajudicial confession by the appellant Alok Kumar and the apology of Rajeev Kumar (Ex. PW5/3) written to AIIMS, New Delhi does not decipher name of Alok Kumar, who had appeared in examination Center for him. This apology (Ex. PW5/3 = Ex3) is of 30.07.01 and date of examination was 27.06.01, meaning thereby this apology is about more than one month after the exam, till that time name of Alok Kumar had not surfaced in the apology.
7.4.3 By reading the circumstances, either on the point circumstantial evidence or extrajudicial confession or want of Cr. A. No.06/12 24/26 judicial test identification parade, in para 7.4.1 and 7.4.2 above, do not make out a complete chain of circumstances to make corroboration of each other.
7.5 The trial court in its judgment (para 30) has discussed about identification memo of Rajeev Kumar (Ex. PW10/2), disclosure memo of Alok Kumar (Ex. PW10/4) and pointing out memo cum recovery memo (Ex.PW10/5) that they are not carrying great evidentiary value but there are other factors like handwriting expert opinion. Whereas in case of circumstantial evidence each aspect required to be proved by the prosecution, which may infer no conclusion other then guilt of the accused.
8. In view of the conclusions drawn in para 7 above, in the light of statutory provision of law and the law laid down in precedent and case law, it is held that prosecution/ respondent could not establish the case beyond reasonable doubt and the circumstantial evidence does not make the chain of corroboration complete to conclude guilt of appellant nor the entire circumstances suggest factors to be concluded contrary to innocence of appellant; consequently impugned judgment dated 04.06.12 is set aside. The appellant is acquitted of charges u/s 419/420 IPC r/w section 511 IPC and section 468/471 IPC. Moreover, the order dated 08.06.12 Cr. A. No.06/12 25/26 on the point of sentence is also set aside. The amount of fine deposited shall be refunded by the trial court on application but after the period of revision is over. Appellant's personal bond and surety bond furnished till decision of appeal stands discharged.
9. The appellant is directed to furnish personal bond in the sum of Rs.15,000/ and surety bond in the like amount u/s 437A Cr PC for a period of six months.
10. A copy of this order be sent to trial court along with trial court record. The appeal file be consigned to record room.
Announced in open court (Inder Jeet Singh)
Bhadra 26, SAKA 1935 Additional Sessions Judge03
(NE): Karkardooma Courts,
Delhi / 19.09.2013
Cr. A. No.06/12 26/26