Delhi District Court
State vs . Suresh Kumar Yadav And Others on 29 August, 2022
CNR No. DL WT02-000279-2005
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DL CT-02-000279-2005
CIS No. 69099/2016
State Vs. Suresh Kumar Yadav and Others
FIR No. 522/04
PS. Paschim Vihar/Crime Branch
U/s. 420/471/474/120 B IPC.
JUDGMENT
1) The date of commission of offence : 22.07.2004
2) The name of the complainant : SI Anand Singh, Anti Homicide Section, Crime Branch, Prashant Vihar, Delhi.
3) The name & parentage of accused : 1. Suresh Kumar Yadav, S/o Late Shri Hari Ram Yadav, R/o H.No. 72,Jawalaheri, Paschim Vihar, Delhi, Age-40 years.
2. Mohd. Salman Khan @ Suleman S/o Mohd. Bashir Khan R/o RZ-
22/274, Geetangali Park, Sagarpur, Delhi.
3. Mukesh Kumar Sharma, S/o Late Sh.
Ganpat Rai Sharma R/o 4/37-A, Vijay Nagar, Double Storey, Delhi-9, Age-
42 years.
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 1 Of 23 CNR No. DL WT02-000279-2005
4) Offence complained of : Under Section 420/467/468/471 and 120 B IPC.
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 29.08.2022 Date of Institution : 10.01.2005 Judgment reserved on : 12.08.2022 Judgment announced on : 29.08.2022 THE BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused persons is that they hatched a criminal conspiracy to prepare the forged mark sheets/degrees/certificates of several courses issued from different Universities and to sell those forged mark sheet/degrees/certificate against consideration which was obtained dishonestly or fraudulently and those forged mark sheet/degree/certificate found in possession of accused persons were used as genuine.
2. The charge sheet was filed on 10.01.2005 and the copy of the same was supplied to the accused persons. Vide order dated 14.05.2010, charges for the offences U/s 420/471/474/120 B IPC were framed upon the accused persons to which they pleaded not guilty and claimed trial.
3. Prosecution examined nine witnesses in support of its case. After the conclusion of prosecution evidence, statements of CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 2 Of 23 CNR No. DL WT02-000279-2005 accused persons u/s 313 Cr.P.C were recorded. Accused persons opted not to lead defence evidence. During the examination, accused persons denied all the allegations against them and stated that they have been falsely implicated in this case and the police officials planted the mark sheet /degree/certificates upon them.
4. It is the cardinal principle of the criminal jurisprudence that the prosecution has to discharge its burden of proof beyond reasonable doubt. This means that there should not be any gap in the case of the prosecution leading any space for doubt in the case set up by the prosecution.
5. The present case was registered on the basis of a secret information. The secret information was developed and after preliminary inquiry, the raid was conducted in which the accused persons allegedly found in the possession of forged mark sheet/degrees/certificate and the FIR was registered.
6. The facts of the present case reveals from the testimonies of the police officers who were the part of raiding team. It is necessary to go through the testimony of prosecution witnesses one by one and thereafter, the appreciation of their testimony is to be undertaken to find out as to whether the prosecution is able to discharge its burden of proof or not.
7. PW 1 Sh. Sanjay Bharti, Principal, Nav Bharti Public School deposed that in pursuance of letter no. 551/R/ACP/Crime Branch dated 06.08.2004, he issued a letter Ex.PW1/B thereby stating that the document Ex.PW1/A does not pertains to their school and the CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 3 Of 23 CNR No. DL WT02-000279-2005 same is forged one.
8. PW 2 Inspector Anand Singh deposed that on 22.07.2004, he was posted in Anti Homicide Section, Crime Branch where he had the information that the accused Suresh Kumar has the business of selling and preparing forged mark sheets/degrees and for this he deputed HC Jagdish Prasad (PW6) to develop the information. He deposed that 2-3 days before 22.07.2004, HC Jagdish Prasad was asked to get prepared from accused Suresh a forged degree of B.SC of Delhi University in his name. He deposed that HC Jagdish met the accused Suresh at his home who demanded Rs. 15,00/- for the degree out of which Rs. 500/- was given as advance and date of delivery of forged degree was fixed as 22.07.2004. 8.1 He deposed that on 22.07.2004, he prepared a raiding party including ASI Gopi Ram, ASI Vijender Singh, HC Jagdish, Ct. Shiv Kumar, HC Yashpal, Ct. Nagender and Ct. Kaptan and at about 02.30 pm, they reached near the petrol pump situated at Jawala Hedi. He deposed that public persons were asked to join the proceedings but none agreed.
8.2 PW 2 further deposed that he took personal search of the decoy customer HC Jagdish Prasad (PW6) but nothing was recovered from him for which he prepared a personal search memo Ex.PW2/A and handed over two currency notes of Rs. 500/- each after noting down their serial numbers to HC Jagdish. He deposed that he prepared handing over memo of currency notes which is Ex.PW2/B qua currency notes number 2CQ526471 and 6EG031751.
8.3 He further deposed that at about 03.10 pm, accused Suresh came and started talking to HC Jagdish who handed over currency CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 4 Of 23 CNR No. DL WT02-000279-2005 notes of Rs. 1000/- to him. He further deposed that accused Suresh called his associates at the spot and one of them gave documents to another, who inturns gave the same to HC Jagdish. He deposed that considering this all the three persons were apprehended by raiding team. He deposed that the currency notes which were recovered from left pocket of accused Suresh were seized vide seizure memo Ex.PW2/C and the name of his associates were revealed as Mukesh and Salman.
8.4 PW 2 further deposed that HC Jagdish produced the degree which was given to him and the same was seized vide seizure memo Ex.PW2/D and the degree is Ex.P1. He deposed that accused Salman was found in the possession of one mark sheet of B.Com second year in the name of Pradeep Kumar along with one CBSE Certificate in the name of Sudhir Gupta which were seized vide seizure memo Ex.PW2/E and the mark sheet is Ex.P2 while the certificate is Ex.P3.
8.5 PW 2 further deposed that during the search of accused Mukesh he was found in the possession of one blank degree of Delhi University and one CBSE Certificate in the name of Manoj which were seized vide seizure memo Ex.PW2/F and the degree is Ex.P5 while the certificate is Ex.P6.
8.6 PW 2 further deposed that thereafter, he prepared the tehrir Ex.PW2/G and handed over the same to HC Yashpal for getting the case registered. He deposed that the investigation was marked to SI Ravinder Singh who came at the spot and he was handed over all the seizure memos and the seized documents along with the custody of accused persons.
8.7 PW 2 further deposed that SI Ravinder recorded the statement of witnesses, arrested accused persons and thereafter CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 5 Of 23 CNR No. DL WT02-000279-2005 recorded their disclosure statements. He deposed that accused Suresh led them to his house situated at Jawala Hedi and produced one white colour polythene which was kept by him in his bed room and the same was found containing 28 certificates and mark sheets of different educational boards and Universities which were seized vide Ex.PW2/H and those mark sheets including certificates are Ex.P7 (28 in number). He deposed that thereafter, accused persons were taken to PS Paschim Vihar and the case property was deposited in the malkhana.
8.8 PW 2 correctly identified all the three accused persons in the court and correctly identified the currency notes which were produced by the MHC (M) bearing no. 2CQ526471 and 6EG031751 which are Ex.PX1 and Ex.PX2. He deposed that these currency notes were recovered from the possession of accused Suresh.
9. PW 3 is Sh. Shiv Singh Chaudhary, Section Officer, Examination-3 University of Delhi. He brought the record pertaining to the range of roll number allotted every year for each course from 1996 onwards. He had proved on record the roll number for annual examination for various courses for the year 2000 as Ex.PW3/A and that of year 2001 as Ex.PW3/B. He has proved Ex.PW3/C as forged document.
10. PW 4 ASI Dev Singh proved the present FIR as Ex.PW4/A.
11. PW 5 J.M. Rawal, proved the letter replied by him qua the letter issued by Sh. A.S. Baweja, Inspector Crime Branch as Ex.PW5/A and the photocopy of letter bearing no.
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 6 Of 23 CNR No. DL WT02-000279-2005 546/R/ACP/AH/Crime Branch dated 06.08.2004 as Ex.PW5/B.
12. PW 6 ASI Jagdish deposed as to his role of decoy customer. He deposed on the lines of PW 2 Inspector Anand Singh but with some contradictions.
13. PW 7 B.S. Negi, Retired UDC, in SDM Office, Gandhi Nagar, deposed that the caste certificate of one Om Parkash, S/o Sh. Jagdish was found to be not issued by SDM, Gandhi Nagar, for which he issued the report Ex.PW7/A. '
14. PW 7 (wrongly mentioned as PW 7 again) Inspector Ravinder Singh and PW 8 ASI Yashpal were also the part of raiding team and they also deposed on the lines of PW 2 Inspector Anand Singh but with certain contradictions.
15. PW 9 Sh. Ramesh Kumar, Assistant Officer, MDU, Rohtak, proved the letter number R-II/04/MISC/3034 as Ex.PW9/A.
16. Ld. APP for the state argued that the case of the prosecution proved beyond reasonable doubt by virtue of testimony of police officials who were the part of the raiding team members who deposed that the accused persons were found in the possession of forged degrees/certificates. It is also submitted that by virtue of the testimony of the witnesses, other than raiding team members it is come on record that the degrees/certificates which were found from the possession of accused persons were forged. It is submitted that accused persons be convicted for the offences for which they have been charged.
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 7 Of 23 CNR No. DL WT02-000279-2005
17. Ld. Defence counsel vehemently argued that the prosecution miserably failed to prove its case. It is submitted that if the testimony of raiding team members be read than it is crystal clear that all the documents prepared during the interrogation are ante- timed and are fabricated ones. It is submitted that by virtue of contradictions appearing on the record it is proved that the degrees/certificates were planted upon the accused persons. It is submitted that the case as set up by the prosecution is in itself fatal as the same does not appeal to the conscience of a reasonable person. It is submitted that accused persons are entitled to be acquitted from the present case.
18. This court perused the documents available on record minutely. The arguments advanced are also considered.
19. There is no much cross examination of PW 1, PW 3, PW 5, PW 7 and PW 9 when they proved certain documents on record as false documents allegedly recovered from the possession of accused persons. It is not in dispute that the documents which were allegedly recovered from the possession of the accused persons were not issued by concerned authority/department. There is no requirement to go further on this aspect as it is proved on record that the documents in question are not genuine.
20. The entire thrust of Ld. Defence counsel during the final arguments was to raise doubts upon the raid itself. The point of contention was that there was no recovery from the accused persons and as such the question whether the documents were CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 8 Of 23 CNR No. DL WT02-000279-2005 forged or not is not of any botheration to the accused persons. As per the Ld. Counsel for accused persons nothing was recovered from the accused persons and all documents were planted upon them by police officials.
21. In view of the above discussion and the arguments advanced , the only poser to be decided is whether the accused persons were found in the possession of forged documents or not? In other words, it is to be appreciated as to whether the prosecution has been able to prove beyond reasonable doubt as to whether the forged degrees/certificates were recovered from the accused persons or not. The only way to decide this poser is to appreciate the testimony of raiding team members which are PW 2, Inspector Anand Singh; decoy customer, ASI Jagdish examined as PW 6; Inspector Ravinder Singh/PW-7 and PW 8 ASI Yashpal Singh.
22. PW 2 Inspector Anand Singh is the important member of the raiding team as he was the person allegedly having the secret information about the accused Suresh that he is engaged in the preparation of forged degrees/certificates. PW 2 deposed that he has this information prior to 22.07.2004, that is, 2-3 days before the raid which was allegedly conducted on 22.07.2004.
23. Admittedly, there is no document on record vide which it could have been said that there was prior information with PW-2 qua the accused Suresh. PW-2 not prepared any DD entry or any other document qua this effect. This fact gains importance as PW 2 deposed that 2-3 days before 22.07.2004 he asked HC Jagdish (PW
6) to meet accused Suresh Yadav and asked him to get a forged CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 9 Of 23 CNR No. DL WT02-000279-2005 degree of B.SC of Delhi University prepared in his name. PW 2 deposed that HC Jagdish visited the house of accused Suresh and the deal was struck for providing the degree of B.SC of Delhi University on 22.07.2004 for which the advance amount of Rs. 500/- was given to the accused Suresh by HC Jagdish.
24. Again the prosecution has not filed any document on record prior to the date of 22.07.2004 revealing HC ASI Jagdish allegedly visited the house of accused Suresh. If the secret information was turned into action through HC Jagdish and the deal was struck for providing the forged degree of B.SC on 22.07.2004 than it is beyond comprehension as to why all these proceedings were not converted into document. Inspector Anand Singh must have prepared a formal complaint or must have recorded all these proceedings in the DD entry or must have prepared some documents for the information of his senior officials but he had not taken any such step.
25. The crucial proceedings which was allegedly done before 22.07.2004 in which HC Jagdish met accused Suresh Kumar at his home and got the deal struck for providing forged B.SC degree and even gave Rs. 500/- to him as advance has no documentary basis. Everything allegedly done prior 22.07.2004 is completely in air. Sanctity of proceedings conducted prior to 22.07.2004 is under threat.
26. PW 2 did not depose as to the specific date prior to 22.07.2004 on which HC Jagdish visited the house of accused Suresh. There is no scope of any ambiguity in criminal law on any CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 10 Of 23 CNR No. DL WT02-000279-2005 aspect. In the case in hand the entire case was dependent upon the secret information which was turned into action prior to 22.07.2004 but there is no documentary evidence on record on this aspect.
27. Here only the testimony of HC Jagdish on the alleged meeting with the accused Suresh prior to 22.07.2004 is crucial. PW 6 HC Jagdish started his testimony by deposing that he joined the investigation on 22.07.2007 where he was given the role of decoy customer. In his entire examination in chief, he had not deposed even a single line that he visited the house of the accused Suresh for striking the deal for providing forged degree prior to 22.07.2004. There is no cross examination of PW 6 by Ld. APP on this aspect. When the deal for providing the forged degree was already struck prior to 22.07.2004 through PW 6 than why PW 6 did not depose on this aspect and why the state chosen to remain silent on this crucial aspect. This glaring answered question going to the roots of alleged secret information received prior to 22.07.2004 is hitting the case of the prosecution badly. The decoy customer was completely silent in his examination-in-chief as to his role prior to 22.07.2004 which was imputed upon him by the leader of raiding team that is PW 2 Inspector Anand Singh. This unexplained crucial contradiction is major one and is going to the roots of the entire case of the prosecution.
28. In view of the above discussion considering the fact that there is no document on record proving any proceedings allegedly undertaken upon the secret information prior to 22.07.2004 and the major contradiction in the testimony of PW 2 and PW 6 which has not been explained it is proved on record that the alleged CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 11 Of 23 CNR No. DL WT02-000279-2005 proceedings prior to 22.07.2004 is not worthy of credit.
29. Now coming to the aspect of raid which was conducted on 22.07.2004. PW 2 deposed that on 22.07.2004, a raiding team was prepared and at about 02.30 pm, they reached near petrol pump, situated at Jawala Hedi and HC Jagdish was handed over two currency notes of Rs. 500/- each bearing no. 2CQ526471 and 6EG031751 vide handing over memo Ex.PW 2/B which was prepared after taking the personal search of HC Jagdish vide Ex.PW 2/A. To the same effect is the testimony of PW 6 HC Jagdish and PW 8 ASI Yashpal. These handing over memo are perused carefully. These handing over memo and personal search memo of HC Jagdish bears the FIR number. It is important to note here that there was not even tehrir till this stage what to say about the FIR. When there was no FIR, than how the FIR number surfaced on Ex.PW 2/A and Ex.PW 2/B is again a open question which has not been answered by the prosecution and this fact gives teeth to the averment of Ld. Defence counsel that these documents are anti-timed.
30. At this stage, the further proceedings conducted at the time of raid 22.07.2004 is to be seen. PW 2, PW 6 and PW 8 deposed on the same lines that at about 03.00 pm, accused Suresh came at the spot who was given Rs. 1000/- (two currency notes of Rs. 500/- as above mentioned) and he called his associates and one of them gave document to the other who inturns gave the same to HC Jagdish. They deposed that all the three persons were apprehended and the currency notes were seized from the left pocket of accused Suresh vide Ex.PW 2/C and the names of associates of the accused CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 12 Of 23 CNR No. DL WT02-000279-2005 Suresh were revealed as Mukesh and Salman. The degree which was handed over to HC Jagdish was seized vide seizure memo Ex.PW 2/D. They deposed that from the possession of accused Salman one mark sheet of B.Com second year in the name of Pradeep Kumar was recovered along with one CBSE certificate in the name of Sudhir Gupta which was seized vide Ex.PW 2/A and accused Mukesh were found in the possession one blank degree of Delhi University and one CBSE certificate in the name of Manoj which were seized vide Ex.PW2/F and thereafter, tehrir Ex.PW 2/G was prepared.
31. The above mentioned part of the raid reveals that the accused Suresh reached at the spot along with his associates namely Salman Khan and Mukesh Sharma who were found in the possession of forged degrees and certificate in the name of some other persons and HC Jagdish was handed over a forged degree in his name by accused Suresh. It is not convincing to accept that accused persons Salman and Mukesh came on the spot having the forged degrees and certificates in the name of some other persons while the alleged deal for providing forged degree was for HC Jagdish only. Why two persons will roam on the road while keeping the forged degrees in their pocket when there was no occasion to get money against those degrees ? It is not the case of the prosecution that some other degrees in some other name were also to be provided by the accused Suresh Kumar. It does not instill the faith of this court that associates of accused Suresh came at the spot with the forged degrees in the name of some other persons without any reason.
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 13 Of 23 CNR No. DL WT02-000279-2005
32. Again the worth considering fact is that Ex.PW2/C, Ex.PW2/D, Ex. PW 2/E and Ex.PW 2/F bears the FIR number despite the fact that tehrir Ex.PW 2/G was prepared after the preparation of these documents. This again reveals that Ex.PW 2/C to Ex.PW 2/F were prepared after the preparation of tehrir Ex.PW 2/G and the registration of FIR Ex.PW 4/A which impliedly makes this documents as ante-timed document and not worthy of credit. On this aspect this court, like to draw support from the judgment titled as Giri Raj v. State, 83 (2000) DLT 2189 wherein it was held in the similar facts that- this gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document 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 the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused persons.
33. It is further important to mention here that there is lack of efforts on the part of the police officials to join public persons in the proceedings conducted on 22.07.2004 when accused persons were apprehended first. PW 2 simply deposed that they asked 3-4 public persons were asked to join raid but none agreed. PW 6 not deposed any efforts made to join the public persons in the proceedings when he was examined in chief. PW 8 also deposed that public persons were asked to join the investigation but none of those public persons agreed to join the proceedings. Thus, there is contradiction as to the efforts made to make public persons as CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 14 Of 23 CNR No. DL WT02-000279-2005 witnesses to the proceedings.
34. The accused persons were apprehended near the petrol pump from the public place. The availability of public witnesses has not been denied by PW-2 and PW-8. In the facts of the present case, when there was lack of documentary evidence qua the proceedings conducted prior to 22.07.2004, it was imperative that the police officials must have made more sincere efforts to join public persons in the proceedings conducted on 22.07.2004. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the judgment titled as:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 15 Of 23 CNR No. DL WT02-000279-2005 action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
35. The names of the persons to whom the request was made to join the investigation has nowhere mentioned. No written notice has been placed on record which must be given to the public persons. PW 7 deposed that the Manager of the petrol pump was asked to join the investigation but he was busy. Contrary to that PW 6 deposed that the staff of petrol pump was not asked to join the investigation. Merely deposing that public persons refused to join the investigation is of no avail. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused persons in the present case and that the recovery was planted upon the accused persons.
36. Another glaring fact is that none of the alleged degrees/certificates recovered from the accused persons were sealed by the investigating officer at the spot. PW 2 was allegedly aware that the accused Suresh would come with the forged degree. In these circumstances, he must have brought his kit with him at the spot as there was every likelyhood there must be some CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 16 Of 23 CNR No. DL WT02-000279-2005 incriminating document against the accused which was required to be protected from tempering. IO must have sealed the documents allegedly recovered form the possession of accused persons at the spot, however, no such steps were taken by PW 2 and even by PW 8 who came at the spot later on for investigation. The requirement of sealing the document recovered was crucial as the document recovered admittedly did not bear any signature of the accused persons rather the same was a document prepared through machine. This laxity on the part of the IO is beyond comprehension.
37. Moreover, as per the testimony of PW 2, PW 6, PW 7 and PW 8 after the apprehension of accused persons, they went to the house of accused Suresh situated at Jawala Hedi where he produced one white colour polythene bearing 28 certificates and mark sheet which were seized vide Ex.PW2/H. Important to mention here that PW 6 HC Jagdish who was the decoy customer specifically denied in the cross examination that he went to the house of the accused Suresh on 22.07.2004 after the raid. He was confronted with his examination-in-chief but even than he deposed that he had not visited the house of the accused Suresh at the time of the raid. The crucial witness of the raiding team deposed differently from the other raiding team member and twice deposed on oath that he did not visit the house of accused Suresh on 22.07.2004. This material contradiction is unexplained and this makes the alleged recovery of 28 forged mark sheet/degrees as untrustworthy. The recovery memo Ex.PW2/H qua these 28 mark sheet/degrees are certainly under huge amount of doubt.
38. It is the correct stage to bring on record the further material CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 17 Of 23 CNR No. DL WT02-000279-2005 contradictions which in the opinion of the court are material one to the facts of the present case. One such crucial contradiction is to the advance amount of Rs. 500/- which was given to the accused Suresh. PW 2 deposed that HC Jagdish (PW6) gave Rs. 500/- from his own pocket. Contrary to that PW 6 deposed that Rs. 500/- was handed over to him by SI Anand. This contradictory statement gets gravity in the facts of this case as the secret information was allegedly transformed into a action through PW 6 when he handed over currency notes of Rs. 500/- as advance amount for obtaining the forged degree. The police officials are not even aware as to how gave the currency note of Rs. 500/- was arranged which inturns turns out to be founding stone of the entire further proceedings.
39. PW 2 deposed that PW 6 asked the accused Suresh to prepare the forged degree in his name prior to 22.07.2004 but PW 6 deposed that he asked accused Suresh prepared the degree in his name on 22.07.2004 only. This again makes the case of the prosecution doubtful as to the alleged deal which was struck prior to 22.07.2004 for supplying the forged degrees. How it is possible that a person asked the accused to prepare a forged degree and the accused handed over the forged degree in the name of that person than and there without having any time for preparing the same. The testimony of police officials is not much trustworthy that the accused persons be convicted on the basis of that.
40. Another contradiction is regarding the degree itself for which the deal was struck. PW 2 deposed that PW 6 struck the deal for obtaining the forged degree of B.SC of Delhi University. Contrary to that PW 6 deposed that he asked for preparation of BA CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 18 Of 23 CNR No. DL WT02-000279-2005 degree. The recovered degree was of B.SC. Thus, the main complainant and the decoy customer are on different footing as to degree which was to be procured form the accused Suresh. The entire case was upon the forged degree to be issued in the name of HC Jagdish but again there is contradiction as to what degree was sought and what was delivered. This is again a major unexplained contradiction.
41. Now coming to the mode of transport used by raiding party members. PW 2 deposed that they went to the spot in two private vehicles ie one black Santro and one golden colour Indica. PW 2 deposed that he was accompanied by HC Jagdish, ASI Gopi Ram and ASI Shiv Kumar in his car. He has not deposed that PW 8 ASI Yashpal was also with him. On the other hand PW 8 deposed that he was with PW 2 in the same car. This contradiction is not though a very material one but gains weight when read in the light of the above mentioned crucial contradictions and the manner in which the alleged proceedings were conducted by the IO negligently.
42. PW 8 deposed that it took around 40 minutes for completing the proceedings at the spot but PW 2 deposed that it took around 2 hours for completing the proceedings. Further, PW 2 further deposed that they left the spot at about 07.30 pm and reached the house of the accused in 10 minutes. Contrary to that PW 7 deposed that they left the spot at about 8.00 pm and reached the house of the accused Suresh at about 08.30 pm. Besides this, PW 6 deposed that the house of the accused Suresh was 4-5 storeys while PW 7 deposed that the house of the accused was 3-4 storeys. These contradiction are to be read in the light of above mentioned CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 19 Of 23 CNR No. DL WT02-000279-2005 contradiction which gravely reflects upon the doubts in the proceedings and when it is so done these contradictions are also corroborating the stand of accused persons that nothing as alleged by the recovery witnesses actually happened or recovered.
43. Another contradiction is on the efforts of the police to join public persons in the proceedings which were allegedly conducted on 22.07.2004 at the house of the accused Suresh. PW 2 deposed that they did not request any public persons in the lane of the house of the accused Suresh to join the proceedings but contrary to that PW 7 deposed that they asked some neighbours to join the investigation. PW 8 deposed that it took around 10 minutes to reach the house of accused Suresh and there was a lady inside the house of the accused Suresh. Contrary to that PW 6 deposed that the house was opened by small child. Thus, the police officials deposed contrary as to the availability of public witnesses near the house of accused Suresh and the efforts made to make them join the proceedings and the family member available in the house of the accused Suresh. These contradictions are also material one and directly hitting as to the evidentiary value of seizure memo Ex.PW 2/H.
44. Moreover, the prosecution failed to bring any person who purchased the degree from the accused prior to 22.07.2004. If the accused persons were in the business of selling forged degrees than there must have been some person who must have purchased the degree from the accused persons. There was no investigation in that direction.
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 20 Of 23 CNR No. DL WT02-000279-2005
45. Further, as per the case of the prosecution 28 further forged degrees/certificate were recovered from the house of the accused Suresh. The worth considering fact is that police officials not found any type writer/computer/scanner/printing machine or any other device for the preparation of the forged degree. These degrees are not hand made rather they are printed. If the accused persons were engaged for long in the preparation of forged degree than in all circumstances the equipment for the preparation of forged degree must have been recovered from the possession of accused persons. There is no such recovery and this is also going against the case of the prosecution.
46. Above mentioned discussion reveals that case of prosecution is full of major glaring deep contradictions which remained unexplained and are hitting at the very roots of this case set up by the prosecution. The entire proceedings allegedly initiated some days prior to 22.07.2004 till conclusion are proved to be not trustworthy. Document prepared during the investigation proved to be ante-timed and unreliable. These facts are certainly going in favour of the accused persons as they are able to create major doubts in the alleged raid on 22.07.2004 and the consequent recovery of forged degrees/certificate from the possession of accused persons. The case of the prosecution stands not proved.
47. In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 21 Of 23 CNR No. DL WT02-000279-2005 prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
48) The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
49) In view of the aforesaid discussion, in the considered CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 22 Of 23 CNR No. DL WT02-000279-2005 opinion of this court, the prosecution failed to discharge its burden of proof and as such, accused persons Suresh Kumar Yadav, Mohd. Salman Khan and Mukesh Sharma are acquitted of the charges leveled against them. The case property confiscated to state. File be consigned to Record Room after due compliance subject to compliance of sec. 437-A Cr.PC.
Digitally signed KAPIL by KAPIL
KUMAR
KUMAR Date: 2022.08.29
14:09:03 +0400
Announced in the open court (KAPIL KUMAR)
on 29.08.2022 Chief Metropolitan Magistrate
West District, Tis Hazari Courts/Delhi
CIS No. 69099/2016, State Vs. Suresh Kumar Yadav and Others ; FIR No.522/2004; PS. Kirti Nagar; U/s. 420/467/468/471/120B IPC. 23 Of 23