Delhi District Court
State vs Surender Singh Etc. ("Acquitted") Page ... on 15 January, 2011
FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 68/2000 PS: Subzi Mandi U/s 205/419/420/471/468/191/193 IPC Unique ID No.: 02401R0008482000 J U D G M E N T:
______________________________________________________________
(a) S.No. of the case : 272/2
(b) Name of complainant : Shri Prem Kumar, Ld.Addl. District & Sessions Judge, Tis Hazari Courts, Delhi.
(c) Date of commission of offence : 18.11.1998
(d) Name of the accused : (i) Surender Singh,
S/o Shri Narender Singh,
R/o H.No.217, Gali No.7,
Padam Nagar, Delhi7.
(ii) Smt.Raj Rani @ Sithani,
W/o Late Shri Ram Saran,
R/o H.No.D380, Mangolpuri,
Delhi.
(Discharged vide order dated
23.04.2003)
(e) Offence complained of :
U/s 205/419/420/471/468/191 r/w
193 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 07.01.2011
(h) Final Order : Acquitted
(i) Date of such order : 15.01.2011
______________________________________________________________ State V/s Surender Singh Etc. ("Acquitted") Page 1 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
On 18.11.1998, in the court of Shri S.M Gupta, the then Ld.ASJ, Delhi, in case FIR No.430/1997, U/s 394/397 IPC, PS Moti Nagar, titled as, "State V/s Jagdish", the Bail Bond with one Ashok Kumar as his surety was produced by the accused. Alongwith the Surety Bond, one FDR dated 12.11.1998, in the sum of Rs.30,000/, purportedly drawn on Punjab National Bank, Bhikaji Cama Palace, Delhi, bearing No.1098/98 and a copy of Ration Card was produced. The court, believing the said documents, accepted the bail bond and accused in that case was released on bail. However, lateron on 21.02.2000, when the matter came up before the court, then presided over by Shri Prem Kumar, it transpired that false Suerty Bond was produced on record. On the said date, Shri S.K Jain, Manager of Punjab National Bank submitted before the court that the aforesaid FDR was fabricated one and a complaint in this regard had already been sent by the bank to DCP (Crime Branch). The learned ASJ summoned the Incharge, PP Tis Hazari, PS Subzi Mandi and handed over copy of order dated 21.02.2000 to him, pursuant whereto the case FIR in the matter was registered. The matter was investigated. During investigation, on 12.07.2000, it came to the notice of SI Narender, the then Incharge of PP Tis Hazari, PS Subzi Mandi that accused Surender (accused in this case) had been arrested in case FIR No.220/2000, PS Subzi Mandi and while in police custody, he had made a disclosure State V/s Surender Singh Etc. ("Acquitted") Page 2 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 statement with regard to he having stood as a false surety in the present case.
SI Narender passed on the information to IO of this case, namely SI Vineet Soni, who formally arrested the accused in this case and obtained his specimen signatures/specimen handwriting. Thereafter, the original documents, i.e Bail Bond, the FDR and the copy of Ration Card submitted along therewith were taken into police possession and the said documents alongwith specimen handwriting of the accused were sent for FSL examination at Malviya Nagar, wherefrom report Ex.PW8/A was received, wherein it was opined that handwriting of the accused matched with the handwriting appearing on the FDR (Ex.PW7/D) and the copy of Ration Card (Ex.PW7/C). However, on the handwriting, purportedly of the accused appearing on the Surety Bond and the accompanying affidavit, no opinion could be given. As such, the accused stood chargesheeted in the matter alongwith coaccused Smt.Raj Rani, who was discharged by this court vide order dated 23.04.2003, as there was no incriminating evidence against her in the matter and she was apprehended only on the basis of disclosure statement of this accused.
2. After completion of investigation, accused Surender Singh stood chargesheeted for offence punishable U/s 205/419/420/471/468/191 IPC r/w Section 193 IPC.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing State V/s Surender Singh Etc. ("Acquitted") Page 3 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 arguments on charge, vide order dated 23.04.2003, charge U/s 205/419/420/471/468/191 IPC r/w Section 193 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution examined eight witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he abjured all the allegations against him and claimed to have been falsely implicated in the matter. However, he did not lead any defence evidence despite opportunity.
5. I have heard arguments advanced at bar by the learned APP as also learned defence counsel Shri S.L Jain, advocate and have carefully perused the entire material on record. Before adverting to the rival arguments, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
6. PW1, HC Ved Pal was posted as Duty Officer in PS Subzi Mandi at the relevant time and he has proved on record the case FIR as Ex.PW1/B.
7. PW2, SI Narinder in his evidence stated that on 12.07.2000, he got information from Inspector Satbir Singh, PS Special Cell, North District with regard to the arrest of accused in case FIR No.220/2000, PS Subzi Mandi State V/s Surender Singh Etc. ("Acquitted") Page 4 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 and he having made disclosure statement about standing false surety in this case. He passed on the said information to IO of this case namely SI Vineet Soni, who formally arrested the accused and took his specimen signatures. In crossexamination, this witness categorically admitted that no public person was joined by the IO at the time of taking specimen signatures. He further admitted that nothing was recovered from the accused in the matter.
8. PW3, Shri S.K Jain, Manager, Punjab National Bank in his evidence stated that FDR No.1098/98 (Ex.PW1/B) was not issued by the bank and it was a forged document.
9. PW4, SI Raman Pratap Singh in his evidence stated that he had collected the FSL result in the matter and had placed the same on record.
10. PW5, SI Sunil Srivastav in his evidence stated that after receipt of order dated 21.02.2000, passed by Shri Prem Kumar, Ld.ASJ, he made endorsement thereupon and got the case FIR in the matter registered.
11. PW6, Shri G.S Dubey, Value Added Tax Officer from Trade & Tax Department, New Delhi in his evidence stated that copy of Ration Card (Mark A) was not issued from the office of Food & Supplies, Circle No.41, Nand Nagri.
State V/s Surender Singh Etc. ("Acquitted") Page 5 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011
12. PW7, SI Vineet Soni, the IO of the case submitted about he having formally arrested the accused in the matter on 12.07.2000, pursuant to information received from PW2 SI Narender about the accused having made disclosure statement while in police custody in some other case about his involvement in this case. He got specimen handwriting of accused collected (S1 to S12) and obtained opinion from PNB and Food & Supplies Officer upon FDR and copy of Ration Card respectively. He further sent documents to FSL, obtained report thereupon and after completion of investigation submitted the chargesheet in the matter. He was thoroughly crossexamined by the defence. In his crossexamination, he admitted that the specimen handwriting of the accused (Ex.PW7/A as also S1 to S12) were taken by him in PS and no witness thereto was joined. He further admitted that before obtaining the signatures of the accused, he did not obtain the permission of the court. He, however, denied the suggestion that he had created false documents against the accused in the matter.
13. PW8, Dr.S. Ahmed, AGEQD from the O/o GEQD, Shimla, Himachal Pradesh proved the FSL report as Ex.PW4/A.
14. This is all as far as prosecution evidence in the matter is concerned.
State V/s Surender Singh Etc. ("Acquitted") Page 6 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011
15. The learned defence counsel Shri S.L Jain, advocate has very vehemently argued that there is no legally sustainable evidence against the accused in the matter, as the prosecution has miserably failed to prove that it was the accused who had impersonated as Ashok Kumar before Shri S.M Gupta, the then Ld.ASJ and had filed false surety bond and accompanying affidavit. It is further argued that there is further no evidence to connect the accused for using as genuine the false and fabricated documents alongwith the bail bond. It is next contended that the FSL report in the matter cannot be the sole basis of conviction of the accused in the matter, as there is no independent corroboration thereof. The learned counsel has relied upon a number of judgments in support of his contention, which I will advert to a little later. It is further argued that the sole basis for chargesheeting the accused in the matter is his own disclosure statement, which he allegedly made in some other case, admitting his involvement in this case, which is not admissible in evidence, being hit by Section 25 of the Evidence Act.
16. Per contra, the learned APP has very vehemently argued that through the FSL report (Ex.PW4/A), it has come on record that it was the accused who had forged the FDR (Ex.PW1/B) and copy of Ration Card (Mark A), which were later on used by him for standing false surety for an accused in a criminal case. It is next argued that the FSL report conclusively establishes the culpability of the accused in the matter. It is further contented by the learned APP that nonjoining of an independent witness in State V/s Surender Singh Etc. ("Acquitted") Page 7 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 investigation at the time of taking specimen signatures of the accused is not fatal to the prosecution case, as there is no law which prohibits the IO from obtaining the signatures/specimen handwriting of the accused during investigation. It is further emphasized that there was no requirement under law to have obtained the permission of court before taking the specimen signatures/hand writing of the accused.
17. I have given my thoughtful consideration to the arguments advanced at bar by both the sides and have perused the entire material on record. It is apparent in the matter that false surety bond was filed in the matter in the court of Shri S.M Gupta, the then Ld.ASJ on 18.11.1998, as the documents which were filed alongwith the surety bond were later on found to be false and fabricated. However, there is nothing on record to even remotely suggest that it was the accused who had impersonated as "Ashok Kumar"
before the court at the time of submission of surety bond. The FSL report has also exonerated the accused in this regard, as his alleged signatures on the surety bond and the accompanying affidavit did not tally with the specimen signatures taken by the IO during investigation. It is further apparent that the false surety bond was produced on 18.11.1998, whereas the accused was arrested in this matter on 12.07.2000 and even the learned ASJ would not have been able to identify him to be the person who had stood false surety. Even the photograph of the person appearing on the copy of Ration Card (Mark A) does not match with the accused. Therefore, it would have been further State V/s Surender Singh Etc. ("Acquitted") Page 8 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 difficult for the learned ASJ to have identified him as the person who had stood false surety.
18. Now, coming to the admissibility of FSL report in the matter. This is the admitted case of prosecution that the specimen handwriting/ signatures of the accused were not taken in presence of any independent witness and the permission of the court was also not obtained before taking the same. In case reported as, "109 (2004) DLT 130", titled as, "Rakesh Kumar V/s State", the Hon'ble High Court of Delhi has been pleased to held that if the specimen signatures/handwriting/thumb impression/finger print impression of the accused are obtained during investigation by IO without the permission of the court, then the same cannot be used against the accused and the report of handwriting expert thereupon would be of no consequences and the same cannot be used to connect the accused with the crime. In this regard, para 17 of the judgment, containing the law on the aforesaid point is reproduced as under:
xxxxx "17. Moreover, the alleged specimen signatures/ handwriting/thumb/finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the I.O without prior permission from the court. Facts in he case of Sukhwinder Singh and Others Vs. State of Punjab, II (1994) CCR 531(SC)=(1994) 5SCC 152, were that specimen handwriting of he appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the tiral and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/writing/thumb impressions were obtained during State V/s Surender Singh Etc. ("Acquitted") Page 9 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhwinder Singh (supra).
Therefore, in view of the law laid down by the Supreme Court in the case of Sukhwinder Singh (supra) if follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime".
xxxxx (Emphasis supplied)
19. Further, in case reported as, "2004 Cr.LJ 242", titled as, "M/s Durga Prasad V/s State of Andhra Pradesh", the Hon'ble High Court of Gujarat has been pleased to hold that if the specimen signatures of the accused were not obtained by the prosecution in presence of Presiding Officer and even if the signatures obtained by the police tallies with that of signatures on the said documents, the same cannot be the basis of the conviction of the accused.
20. I have gone through the aforesaid judgments. If the law laid down in the aforesaid judgment is applied to the facts of the present case, then it would be apparent that this case solely rests on the circumstantial evidence. It is well settled by the Apex Court that the principles governing the appreciation of evidence in a case of circumstantial evidence are that each circumstance relied on by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied on by the prosecution must be such as cannot be explained on any hypothesis, except the guilt of the accused. In other words, circumstances must be of incriminating State V/s Surender Singh Etc. ("Acquitted") Page 10 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011 character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. In order to prove the FSL report against the accused, it was imperative upon the prosecuting agency to have obtained the permission of the court before taking the specimen signatures/handwriting of the accused. The rule of prudence further demands that the specimen signatures should have been taken in presence of some other independent witness.
21. It is well settled now that it is unsafe to base conviction solely on expert opinion and it has almost become a rule of law (reference judgment reported as, "AIR 2003 SC 282", titled as, "Alamgir V/s State of Delhi"). Now, let us see, whether there is any other incriminating evidence on record against the accused, except the FSL report. The only piece of evidence are the testimonies of PW6 Shri G.S Dubey and PW7, Shri S.K Jain, who stated in their testimonies before the court that the copy of Ration Card and FDR were in fact forged documents, but there is nothing on record that it was the accused, who used the same as genuine in judicial proceedings. Nobody saw the accused, either appearing as a false surety in the court nor anybody saw the accused forging the aforesaid documents for the purpose of using the same for standing as a false surety. Therefore, the only piece of evidence which is sought to be used against the accused is the FSL report. State V/s Surender Singh Etc. ("Acquitted") Page 11 of 12 FIR No.68/2000: PS Subzi Mandi: U/s 205/419/420/471/468/191/193 IPC DOD: 15.01.2011
22. As already discussed herein above that the FSL report cannot be the sole basis for convicting the accused. There is no independent corroboration of the FSL report from any other corner. It has already been held above that the said FSL report cannot be held against the accused because the specimen signatures were obtained in violation of the law laid down by the Hon'ble High Court. Therefore, the prosecution has miserably failed in proving in this case the charges against the accused. He is, therefore, acquitted of the charges in this case. His B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. Original documents, if any, either of surety or of accused be returned to its rightful owner forthwith. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 15.01.2011 Chief Metropolitan Magistrate:
Delhi
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