Delhi District Court
State vs . Ram Kumar Yadav on 18 January, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTHWEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Ram Kumar Yadav
FIR No. 21/07
PS : Dwarka
U/s 419/420/467/468/471/474/120B/34 IPC
Date of Institution : 29.01.2011
Date of reserving of order : 02.12.2019
Date of Judgment : 18.01.2020
JUDGMENT
1. Serial No. of the case : 428365/2016
2. Name of the Complainant : Dr. Anil Bansal
Member, Delhi Medical
Council
3. Date of commission of offence : On or before 08.01.2007
4. Name of accused person : 1. Ram Kumar YadavS/o
Sh. Devi Ram Yadav R/o.
RZ12A, Kamla Park,
Dharampura Extension,
Najafgarh
2. Harpreet Singh S/o
Sardar Harjeet Singh, R/o
WZ157, Street No. 1,
Krishna Puri, Tilak Nagar,
Delhi
3. Gurdeep Singh@ Toni
State Vs. Ram Kumar Yadav
FIR No.21/2007
Judgment dated 18.01.2020 Page No. 1 of 23
S/o Sh. Rajender Singh
Kohli, H. No. 327, 4th
Storey, Tegore Garden
Extn., Raja Garden, New
Delhi
5. Offence charged : U/s 419/420/468/471/
474/120B IPC
6. Plea of accused : Not guilty
7. Final Order : Accused No. 1 Convicted
U/s 474 read with Section
467 IPC
Accused No.2 PO
Accused no. 3 Acquitted
BRIEF REASONS FOR ORDER:
1. The accused have been chargesheeted for committing offences punishable under Section 419/420/467/468/471/474/120B/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The present case was registered on the complaint dated 24.12.2006 of Dr. Anil Bansal, Member Delhi Medical Counsel to ACP Operations, SouthWest District, New Delhi seeking legal action against a quack operating from flat no.302 PocketA, PhaseII, Sector 13, Dwarka, New Delhi75 under the name and style M/s Unique Health Care, representing himself to be an MBBS Doctor and giving State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 2 of 23 alopathic treatment without requisite qualification.
3. It has been alleged by the prosecution that after receipt of the aforesaid complaint, inquiries were made by IO ASI Naresh Chander wherein he had come to know that the real name of aforesaid Dr. Anil Kumar Aggarwal is Ram Kumar Yadav who was a resident of RZ 12A, Kamal Park, Dharampura Extension, Najafgarh and had been running clinics under the name of "Ashirvad International Medical Society" and "Ashirvad Nirog Dham" and had run away from there after cheating many people.
4. Thereafter, a raiding team was formed by IO ASI Naresh Chander on the instructions of Inspector (Special Staff) Rajpal Dabas which was consisting of HC Bachchu Singh, HC Ombeer Singh, HC Randhawa, Ct. Manoj Kumar, Ct. Suresh Kumar and Ct. Zafar Khan and on 08.01.2007 at about 06.40 PM, the aforesaid raiding team had visited the Flat No.302 where a board of 'Unique Health Care' was installed outside. Upon enquiry, accused Ram Kumar Yadav had represented himself as Dr. Anil Kumar Aggarwal, M.B.B.S. On demand by ASI Naresh of the documents, he had handed over one MCI Registration Certificate bearing no.MCI7660 dated 10.04.1989 and one photocopy of M.B.B.S degree of 1987 alongwith MAMC Certificate NO.2250 dated 10.04.1989, reflecting that Dr. Anil Kumar Aggarwal had undertaken the course of MBBS during 19831988 and had passed with first division, after taking the same out of his table drawer.
5. Upon enquiry about the original MBBS degree, accused Ram State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 3 of 23 Kumar Yadav started avoiding and got nervous. On sustained interrogation, he admitted himself to be Ram Kumar Yadav R/o RZ 12A, Kamal Park, Dharampura Extension, Najafgarh and had handed over several documents to the IO bearing his name as Ram Kumar Yadav. He had confessed that he is a certificate holder of Ayurvedic and Unani Medicines and is representing himself to be an MBBS doctor so as to earn more money. ASI Naresh Kumar has thereafter got the FIR in question registered at PSDwarka u/s 419/420/467/468/470/471/474/120B IPC against the accused and during further investigation the MCI certificate produced by accused Ram Kumar Yadav alongwith the MAMC Certificate and degree were found to be forged. Upon enquiry, accused Ram Kumar Yadav had stated that the said documents were got prepared by him through accused Harpreet Singh and Gurdeep Singh @ Tony. Thereafter, at the instance of accused Ram Kumar Yadav, accused Harpreet Singh was arrested alongwith several forged driving licenses. At the instance of accused Harpreet Singh, accused Gurpreet @ Tony was arrested who was running a Cyber Cafe. Subsequently, the present chargesheet was filed against all the accused u/s 419/420/467/468/470/471/474/120B IPC.
6. Upon receipt of the chargesheet all the accused were summoned vide order dated 22.07.2011. Accused Ram Kumar Yadav and accused Gurdeep Singh appeared in the Court whereas accused Harpreet was declared PO vide order dated 29.11.2012.
7. After compliance with the provisions of Section 207 CrPC, State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 4 of 23 arguments on charge were heard on behalf of accused Ram Kumar Yadav and Gurdeep Singh and vide order dated 26.07.2015 charge u/s 120B IPC, u/s 419/120B IPC, u/s 468/120B IPC, u/s 474/120B IPC and u/s 471/120B IPC were framed against accused Ram Kumar Yadav and accused Gurdeep Singh to which they have pleaded not guilty and claimed trial.
8. Prosecution has examined 7 witnesses in support of its case.
9. DO SI Suraj Bhan (Retired) has been examined as PW1, who has proved the FIR Ex.PW1/A and endorsement made by him on the Rukka regarding registration of FIR as Ex.PW1/B.
10. Sh.S. M. Haider, the then Registrar (Academics) of MAMC was examined as PW2, who has proved his verification report dated 10.04.2007 with regard to the MAMC Certificate in the name of Anil Kumar Aggarwal as Ex.PW2/A. As per said report, no person in the name of Anil Kumar Aggarwal was admitted in Maulana Azad Medical College as MBBS student during the year 19831988. He has deposed that the said report was given by him on the basis of record Ex.PW4/A.
11. Sh.Anil Bansal, Member of Delhi Medical Council has proved his complaint Ex.PW3/A addressed by him to ACP Operations stating that a complaint was received at Delhi Medical Council regarding practice by one Anil Kumar Aggarwal as an MBBS doctor in Dwarka without having requisite qualification.
12. Sh.Rajesh Sachdeva, Registrar (Academics) of MAMC Delhi was examined as PW4 who has produced the copy of final result of State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 5 of 23 MBBS for the year 1987 which is Ex.PW4/A in terms of which no candidate in the name of Anil Kumar Aggarwal had passed MBBS examination in 1987 from MAMC Delhi.
13. HC Ombeer Singh, who was a part of raiding team constituted by IO ASI Naresh, has been examined as PW5. He has proved the seizure memo Ex.PW5/A and Ex.PW5/B in respect of the documents seized from accused Ram Kumar Yadav on 08.01.2007. He has also proved the arrest memo, personal search memo and disclosure statement of accused Ram Kumar Yadav as Ex.PW5/C, Ex.PW5/D and Ex.PW5/E respectively. He has also proved the disclosure statement of accused Harpreet and seizure memo of documents seized from him as Ex.PW7/G and Ex.PW7/F respectively. Arrest memo of accused Gurdeep was proved by him as Ex.PW7/H.
14. Sh.Subhash Chander, LDC from Medical Council of India, has been examined as PW6. He has proved the letter dated 23.04.2007 written by Sh. Ranbir Singh, Former Asst. Secretary, Medical Council of India as Ex.PW6/A. As per said letter, name of Dr. Anand Kumar Bansal is registered with MCI at Serial No.7660 w.e.f. 12.01.1989. The computerized record in respect of the said certificate has also been produced by him which is Mark X and Mark X1.
15. IO ASI Naresh has been examined as PW7. He has deposed on the lines on which the chargesheet has been filed by him. He has proved the Tehrir Ex.PW7/A prepared by him on the basis of complaint Ex.PW3/A, arrest memo, personal search memo and disclosure statement of accused Ram Kumar Yadav as Ex.PW5/C, State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 6 of 23 Ex.PW5/D and Ex.PW5/E respectively, the seizure memos of the documents seized from accused Ram Kumar Yadav as Ex.PW5/A and Ex.PW5/B, site plan Ex.PW7/B, and arrest memo & personal search memo of accused Harpreet as Ex.PW7/C and Ex.PW7/D.
16. Seizure memo of documents recovered from Harpreet and his disclosure statement were proved by him as Ex.PW7/E and Ex.PW 7/G. Arrest memo and personal serach memo of accused Gurdeep Singh @ Tony as Ex.PW7/H and Ex.PW7/I, seizure memo of documents recovered from accused Gurdeep as Ex.PW7/F and the seizure memo of computer, printer cum copier cum scanner recovered from accused Gurdeep as Ex.PW7/J. He has also proved the documents seized from accused Ram Kumar Yadav vide seizure memo Ex.PW5/B as Ex.P7/E to Ex.P7/O and the documents seized by seizure memo Ex.PW5/A as Ex.P7/A to Ex.P7/D.
17. He has also proved the following documents recovered by him from accused Ram Kumar Yadav i.e. I) the GPA and agreement to sell of Flat No.302 Ex.PW7/P, ii) insurance documents in the name of accused Ram Kumar Yadav Ex.P7/Q, iii) ITR forms in the name of Anil Kumar Aggarwal Ex.P7/R, and iv) blank prescription slips Ex.P7/S.
18. The driving licenses seized from accused Harpreet vide seizure memo Ex.PW7/E were also identified as Ex.P7/T1 to Ex.P7/T6. He has proved the disclosure statement of accused Gurdeep as Ex.PW 7/X1, seizure memo of documents recovered from accused Gurdeep as Ex.PW7/F, the driving license in the name of Anil Kumar Aggarwal State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 7 of 23 as Ex.P7/U and the remaining documents recovered from him as Ex.P7/V1 to Ex.P7/V17. He has further proved the seizure memo of the bank documents recovered from Baljeet Singh Bhalla as Ex.PW 7/X2 and seizure memo of documents seized from Smt.Bimaldeep of Karnataka Bank as Ex.PW7/W. The documents so seized are Ex.PW 7/X3 to Ex.PW7/X6.
19. All the aforesaid witnesses, except PW1 to Ex.PW4 and PW 6, were duly crossexamined by Ld. Counsels for accused Ram Kumar Yadav and Gurdeep. No other witness has been examined by prosecution.
20. Thereafter, Statements of accused Ram Kumar Yadav and Gurdeep U/s 313 Cr.P.C were recorded on 13.05.2019 after putting entire incriminating evidence to them. Both the aforesaid accused persons opted not to lead any DE and hence, the final arguments were heard on behalf of state as well as both the aforesaid accused on 02.12.2019.
21. It is submitted by Ld. APP for the State that the prosecution has been able to prove its case beyond reasonable doubts from the testimonies of PW1 to PW7 and hence, the accused are liable to be convicted for the offences for which they have been charged.
22. On the other hand, it is submitted by Ld. Counsel for accused Ram Kumar Yadav that prosecution has examined only PW5 and PW7 as its star witnesses and rest all were merely formal witnesses. He submits that the testimonies of both PW5 and PW7 are fraught with contradictions. According to him, on a careful scrutiny of State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 8 of 23 testimonies of PW5 and PW7, it is apparent that PW5 was not even the part of alleged raiding team, in as much as, he could not even tell the correct number of the flat from where the accused Ram Kumar Yadav was allegedly arrested.
23. He further submits that no independent witness has been joined by the IO during the alleged raid on the premises of the accused Ram Kumar Yadav. He submits that the IO has even failed to take photographs of the alleged board in the name of Unique Health Care nor the said board has been seized by the IO nor the IO had found any staff or the patient at the clinic. It is further submitted by him that though the flat no.302 is situated in a society, however, no office bearer of the aforesaid society nor even the guard has been joined as witness by the IO. He submits that the IO has even failed to record the statement of the owner of the aforesaid flat, who had allegedly executed the GPA in favour of Anil Kumar Aggarwal and in whose flat allegedly the clinic was being run by the accused Ram Kumar Yadav.
24. He submits that the IO has not found any prescription slips or stamps in the name of Dr. Anil Kumar Aggarwal from the alleged clinic nor has he seized the record of any patient. Moreover, according to him, though PW5 says that IO was leading the raiding party, however, as per PW7, they had visited the flat no.302 on the information received from the secret informer. He submits that accused Ram Kumar Yadav has nothing to do with alleged Dr. Anil Kumar Aggarwal and the alleged clinic in the name of Unique Health State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 9 of 23 Care, in as much as, he was running an Ayurvedic and Unani Clinic at Dharampura, Najafgarh.
25. Under the aforesaid circumstances, according to him, the prosecution has failed to prove its case under any of the Sections with which the accused have been charged, much less, has the prosecution been able to prove its case beyond reasonable doubts. He has thus prayed for acquittal of the accused from charges framed against the accused on 26.08.2015.
26. It is submitted by counsel for accused Gurdeep @ Tony that there is no evidence against the accused Gurdeep @ Tony otherwise than the disclosure statement of accused Ram Kumar Yadav. He submits that the accused Gurdeep had been running a cyber cafe and accused Harpeet used to visit the cyber cafe of accused Gurdeep as a customer and being the owner of cyber cafe, accused Gurdeep could not have snooped into the work of accused Harpreet. She has thus prayed for acquittal of accused Gurdeep.
27. In rebuttal, it is submitted by Ld. APP for the State that despite there being several deficiencies in the investigation of the case, the prosecution has been able to prove its case beyond reasonable doubts against the accused persons through the testimonies of PW1 to PW7 and the accused during cross examination of Prosecution witnesses as well as during their examination u/s 313 Cr.P.C. have failed to impute any motive to the said witnesses for false implication of the accused.
28. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 10 of 23
29. As has already been observed hereinabove, the accused have been charged u/s 120B IPC and U/ss. 419/468/474 & 471 read with Section 120B IPC.
30. So far as the charge u/s 120B IPC is concerned, the same prescribes punishment for the offence of criminal conspiracy. The offence of 'criminal conspiracy' has been defined in Section 120A IPC which contemplates an agreement between two or more persons for doing an illegal act or for doing with illegal means an act which itself may not be illegal. The essence of the offence is an agreement to do an illegal act and such an agreement can be proved either by direct or circumstantial evidence or by both. The direct evidence of conspiracy is rarely available and the inferences are normally drawn from the acts of the parties in pursuance of a common purpose. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement to commit an offence.
31. In the case in hand, the prosecution has failed to prove the aforesaid charge u/s 120B IPC either by direct or by circumstantial evidence and the whole case of prosecution merely rests on uncorroborated disclosure statements of coaccused, which otherwise are not admissible in evidence. Merely because the original DL of accused Ram Kumar Yadav bearing his name as Anil Kumar Aggarwal has been found in possession of one of the coaccused, the same is not sufficient to hold the accused Gurdeep guilty of having State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 11 of 23 entered into criminal conspiracy with the accused Ram Kumar Yadav, particularly when the prosecution has failed to prove that the forged MCI and MAMC certificates were prepared at the cyber cafe of accused Gurdeep. The accused are thus liable to be acquitted of the charge u/s 120B IPC.
32. The charge u/s 419 read with Section 120 B IPC has been framed alleging that under a criminal conspiracy, accused Ram Kumar Yadav has impersonated himself as Anil Kumar Aggarwal and had been practicing as an MBBS doctor, despite the fact that he was not legally entitled for the same. It is significant to note that Section 419 IPC prescribes punishment for the offence of 'cheating by impersonation' whereas the offence of 'cheating' has been defined in Section 415 IPC.
33. As per Section 415 IPC, the offence of cheating is said to have been committed, if any person, by deceiving another person, fraudulently or dishonestly induces the person so deceived to do any of the following: (1) To deliver any property to any person; or (2) To consent that any person shall retain any property;or (3) To do or omit to do anything which he would not do or omit to do if he was not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
34. As per the explanation appended to Section 415 IPC, a dishonest concealment of facts is a deception within the meaning of State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 12 of 23 this Section.
35. Thus a bare perusal of the aforesaid definition of cheating under Section 415 IPC shows that deception of a victim is an essential ingredient of offence of cheating and in case the person sought to be deceived is not deceived on account of inducement or misrepresentation by another, such another person can't be held liable for the offence of cheating within the meaning of Section 415 IPC.
36. In the case in hand, it is apparent from the deposition of IO SI Naresh that before he had raided the premises of the accused Ram Kumar Yadav, he was aware of the real name of the accused. He was also aware of the fact that accused Ram Kumar Yadav was not an MBBS doctor. Thus, when upon inquiry by the IO, accused misrepresented himself as Dr. Anil Kumar Aggarwal, an MBBS doctor, IO cannot be said to have been deceived on account of said misrepresentation by accused Ram Kumar Yadav. In the absence of exercise of any deception by accused Ram Kumar Yadav upon IO SI Naresh, accused Ram Kumar Yadav cannot be held guilty of commission of offence u/s 419 IPC i.e. for cheating by impersonation.
37. Though, it has been deposed by IO that upon inquiry, he had come to know that one Ram Kumar Yadav was practicing in Dawrka as Dr. Anil Kumar Aggarwal without having any requisite degree and had taken money from lots of people, however, the IO has failed to collect any evidence during investigation in this regard nor has the prosecution examined any witness during the course of trial who had been so deceived by accused Ram Kumar Yadav.
State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 13 of 23
38. IO has even failed to take photographs of any board displayed by the accused Ram Kumar Yadav at his clinic nor has he seized the same. Accused Ram Kumar Yadav is thus liable to be acquitted of the charge u/s 419 read with Section 120B IPC for want of sufficient evidence.
39. Now coming to the charge u/s 468/120B IPC. The aforesaid charge has been framed against both the accused on the ground that accused persons, in pursuance to the criminal conspiracy, had forged various documents including original driving licenses for the purpose of cheating.
40. Section 468 IPC prescribes punishment for offence of 'forgery for the purpose of cheating'. Under this Section, only a person, who has actually committed the forgery for the purpose of cheating, is liable to punishment. The term 'forgery' used in section 468 IPC has been defined in under Section 463 IPC.
41. The basic elements of the offence of forgery, as per Section 463 IPC, are listed in the authoritative pronouncement of Hon'ble Supreme Court in Sushil Suri Vs. Central Bureau of Investigation 2011 (5) SCC 708 in the following words:
(1) The making of a false document or part of it and (2) Such making should be with such intention as is specified in the section, viz.,
(a) To cause, damage or infringe to (i) the public, or (ii) any person
(b) To support any claim or title; or State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 14 of 23
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed
42. Thus, it is the maker of a false document, having the intention as specified in the Section, who can be said to have committed the offence of forgery and no one else. As per section 464 IPC, a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document.
43. In the case in hand, there is not even an iota of evidence that any of the two accused charged under Section 468 IPC read with Section 120 B IPC have made the false documents i.e. the MCI Certificate, MAMC degree and MAMC Certificate or any of the driving licenses seized by the IO from the possession of the accused Ram Kumar Yadav and accused Gurdeep Singh.
44. In fact, the charge under Section 468/120B IPC has been framed against the accused for alleged forgery of certain original driving licenses alongwith other documents. It is significant to note that no witness has been examined by prosecution to prove that any of the driving licenses recovered from the possession of the accused Gurdeep were forged. No doubt, the report has been obtained by IO during investigation from the concerned MLO regarding verification of certain driving licenses and report had allegedly been given by the office of MLO on 26.04.2007 that there was no record found in respect of 5 of the aforesaid driving licenses in the computer of the State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 15 of 23 office of MLO, however, there had been no report obtained by IO from the MLO that the said driving licenses were either forged or were not issued by the Transport Department, Govt. of NCT of Delhi. Merely not finding of any record in the computer of Transport Department was not sufficient to hold the aforesaid driving licenses as forged. Even otherwise, no witness has been examined by the prosecution from the Transport Department to prove the aforesaid report in respect of 5 driving licenses.
45. Even in respect of MCI certificate and the degree and certificate of MAMC, there is no evidence that the same have been forged by the accused Ram Kumar Yadav or Gurdeep much less have the accused forged the same for the purpose of cheating.
46. It is significant to note that though, the IO had allegedly seized a computer monitor, CPU, scanner cum printer cum copier, keyboard, two speakers and one lamination machine from the possession of accused Gurdeep Singh, however, the same were not produced before the court during evidence nor were they sent to FSL for their forensic examination so as to ascertain whether the forged documents were prepared with the help of the said gadgets. Thus, there is not even an iota of evidence against any of the two accused facing trial before the court regarding forgery of the documents seized by IO from the possession of accused Ram Kumar Yadav as well as accused Gurdeep Singh.
47. So far as the charge u/s 471 read section 120B IPC is concerned, the accused have been charged under the said section on State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 16 of 23 account of alleged use by them of the aforesaid forged documents as genuine having knowledge or reasons to believe the same to be forged. As has already been observed hereinabove, the prosecution has been able to prove only three of the documents seized by the IO having been forged i.e. the MCI Certificate no.7660, MAMC certificate no.2250 dated 10.04.1989 and the MBBS degree which are Ex.P7/A, Ex.P7/B and Ex.P7/C respectively. That the aforesaid documents are forged have been proved by the prosecution through the uncontroverted testimonies of PW2, PW4 and PW6. It has been categorically deposed by PW6 from medical council of India that as per the records of MCI, name of Dr. Anand Kumar Bansal has ben registered at Serial No.7660 dated 12.01.1989. Similarly, PW2 and PW4 have categorically deposed that as per the records maintained by MAMC, there was no student enrolled in the MBBS Course at MAMC during 19831988. The aforesaid facts are sufficient to prove that the documents Ex.P7/A to Ex.P7/C are forged documents, however, the aforesaid fact by itself is not sufficient to make the accused persons liable for punishment u/s 471 IPC read with 120B IPC.
48. For conviction of the accused u/s 471 IPC read with Section 120B IPC, it was incumbent upon the prosecution to prove the use of aforesaid forged documents by the accused persons knowing or having reason to believe that the same were forged. In the case in hand, prosecution has failed to prove the use of the aforesaid documents by any of the accused, in as much as, mere production of the aforesaid documents by the accused Ram Kumar Yadav on the demand of IO State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 17 of 23 ASI Naresh Kumar cannot be considered to be the use within the meaning of Section 471 IPC.
49. Now coming to the charge u/s 474 IPC read with Section 120B IPC, the accused have been charged for the offence u/s 474 IPC read with Section 120B IPC having found in possession of various forged documents including DL, degrees, certificates, PAN cards etc. intending to use the same dishonestly as genuine. It has already been observed hereinabove that the prosecution has merely been able to prove three of the documents recovered from the possession of accused Ram Kumar Yadav as forged documents which are Ex.P7/A, Ex.P7/B and Ex.P7/C and no other document. It has also been observed hereinabove that there is not even an iota of admissible evidence about existence of any criminal conspiracy between accused Ram Kumar Yadav and accused Gurdeep Singh either regarding forgery of the said three documents or regarding use or possession of the same. Admittedly, none of the aforesaid documents Ex.P7/A to Ex.P7/C were recovered from the possession of accused Gurdeep Singh and hence, he is liable to be acquitted even of the charge u/s 474 IPC read with Section 120B IPC.
50. It has been submitted by ld. Counsel for accused Ram KumarYadav that the aforesaid documents were planted by the IO upon the accused Ram Kumar Yadav who was lifted from his residence on the pressure of some senior officers and has been falsely implicated in the present case. Counsel for accused Ram Kumar Yadav has invited the attention of this court to several discrepancies in State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 18 of 23 the testimonies of PW5 and PW7 which, according to him, render the aforesaid recovery doubtful, more particularly, for want of joining of any public witness by the IO while conducting the alleged raid.
51. He has pointed out that PW5 has failed to disclose the number of flat where the raid was allegedly conducted by the raiding team led by IO ASI Naresh and has also failed to disclose the name of the apartment where the said flat was situated. Besides, according to him, the testimonies of PW5 and PW7 regarding the mode of travel of PW5 to the police station for registration of FIR are contradictory to each other and hence, cast doubt about the veracity of the case set up by the prosecution, more so, when the IO had failed to join any independent witness during the alleged seizure of the forged documents from the accused Ram Kumar Yadav. He submits that there are serious lacunaes in the investigation carried out by the IO who has failed to take photogarphs of the board allegedly displayed at the clinic of the accused nor has he seized the same. Moreover, according to him, the IO had failed to send any trap witness to the accused for treatment and has also failed to examine the owner of the said flat besides the neighbourers. All the aforesaid facts, according to him, are sufficient to acquit the accused of the charge u/s 474 IPC.
52. On the other hand, it was submitted by Ld. APP for State that minor discrepancies in the testimonies of PW5 and PW7 coupled with the deficiencies in the investigation are not sufficient to throw away the case of persecution so long as the accused have failed to impute any motive to the IO for his false implication. State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 19 of 23
53. I have heard the submissions made on behalf of the parties and have also perused the record.
54. No doubt there are several lacunaes left by the IO while carrying out the investigation in the present case, however, it has been repeatedly held by Hon'ble Delhi High Court as well as Hon'ble Supreme Court that the deficiencies in the investigation by themselves shall not be sufficient for acquittal of the accused if there is sufficient material on record to prove the charge against the accused beyond reasonable doubts. It has been held by Hon'ble Supreme Court in Dhanaj Singh Vs. State of Punjab (2004) 3 SCC 654 that in case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused solely on account of the defect, in as much as, to do so will tantamount to playing in the hands of the investigating officer, if the investigation is designedly defective.
55. Similarly, minor discrepancies in the testimonies of PW5 and PW7 as pointed out by counsel for accused Ram Kumar Yadav are not sufficient to acquit the accused. It has been held by Hon'ble Supreme Court in Bharwada Bhogin Bhai Hirjibhai Vs. State of Gujrat (1983) 3 SCC 217 that a witness cannot be expected to possess a photographic memory and power of observation differ from person to person. It has further been held that what one may notice, another may not. By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them and they can only recall the main purport of the conversation. State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 20 of 23
56. Similarly, regarding the exact time of the incident, usually people make their estimates by guess work on the spur of the moment. Moreover, a witness cannot be expected to recall accurately the sequence of events. Thus, it was further held that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, cannot be given undue importance.
57. While applying the aforesaid principles to the facts of the present case, in my considered opinion, the non disclosure of the exact flat number and the name of apartment by PW5 during his examination, which has taken place after a period of almost 12 years from the date of incident, cannot be given undue importance. Similar is the case with discrepancies in the testimonies of PW5 and PW7 about the use of Govt. Gypsy by PW5 for visiting the police station. The non seizure of the board displayed outside the clinic can also not be given undue weightage so as to throw away the entire case of prosecution, in as much as, PW5 and PW7 have consistently deposed about the raiding of the premises of the accused and seizure of the forged documents Ex.P7/A to Ex.P7/C from the possession of accused Ram Kumar Yadav.
58. So for as non joining of public witnesses is concerned, it has been repeatedly observed by Hon'ble Supreme Court as well as Hon'ble Delhi High Court that the public is ordinarily reluctant in joining investigation as joining investigation may lead them to unnecessarily visit the police station as well as the court. It has been categorically deposed by PW5 as well as PW7 that they have made State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 21 of 23 efforts to join independent witnesses from Sector 12 Metro Station, however, none agreed. Under the aforesaid circumstances, mere non joining of the public witnesses will not be fatal to the case of prosecution. More so, when the accused have failed to impute any motive to the witnesses examined by prosecution, more particularly, to PW5 and PW7.
59. Though, it has been suggested by him to the aforesaid witnesses that they have falsely implicated the accused at the instance of their senior officers on the basis of fake complaint, however, it is significant to note that the complaint Ex.PW3/A has been duly proved by PW3 who has not been cross examined despite opportunity and the accused has failed to name the alleged senior officers of PW5 and PW7 who had allegedly got the accused falsely implicated much less had he been able to give the reasons for his false implication by such senior officer.
60. Under the aforesaid circumstances, in my considered opinion, prosecution has been able to prove the recovery of forged documents Ex.P7/A to Ex.P7/C from the possession of accused Ram Kumar Yadav beyond reasonable doubts.
61. Further the MCI certificate Ex.P7/A falls within the definition of 'valuable security' within the meaning of Section 30 of the IPC, in as much as, it creates a legal right in favour of holder thereof to practice as an alopathic doctor.
62. The accused Ram Kumar Yadav is thus liable to be convicted for the offence u/s 474 IPC read with Section 467 IPC. Accused Ram Kumar Yadav is thus convicted for the offence u/s 474 IPC read with State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 22 of 23 Section 467 IPC and is acquitted of all other charges whereas accused Gurdeep Singh is acquitted of all the charges.
63. Ordered Accordingly.
Pronounced in the open court on this 18.01.2020. This judgment consists of 23 signed pages.
Copy of this judgment be given dasti to convict free of cost.
(ARUN KUMAR GARG) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Ram Kumar Yadav FIR No.21/2007 Judgment dated 18.01.2020 Page No. 23 of 23