Delhi District Court
State vs . Jagdev Singh & Ors. on 16 October, 2014
IN THE COURT OF SH. AJAY GARG
ADDL. CHIEF METROPOLITAN MAGISTRATE01, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: NEW DELHI
FIR N0. : 522/04
U/S : 419/420/468/471 IPC & 120 B IPC.
PS : IGI Airport
State Vs. Jagdev Singh & Ors.
J U D G M E N T
a) ID No. of the case : 02405R1326572005
b) Date of commission of offence : 25.11.2004
c) Date of institution of the case : 28.03.2005
d) Name of the complainant : Subey Singh .
e) Name & address of the :(i). Jagdev Singh
accused
S/o. Sh. Harbhajan Singh
R/o. 741,Taruiyan Mohalla,
Raikot, Distt. Ludhiana
(Proceedings qua accused Jagdev stands abated vide order dt. 28.11.2007).
(ii).Kulwant Singh S/o Kartar Singh R/o Village Rajouwana Khurd, P.O Rajouwana Kalan,PS Seedar Tehsil Raikot,Distt.Ludhiana, PB.
(Accused Kulwant Singh stands convicted vide order dt. 08.07.2009).
(iii) Gurmeet Singh S/o Harbans Singh R/o 24702472, Mohalla Molvi, Raikot, Distt. Ludhiana, Punjab.
FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 1 Of 24 (iv) Maninder Singh S/o Manhoar Singh, R/o C34, Defence Colony, New Delhi. (v) Syed Haseeb S/o. Sh. Syed Jaffar, R/o. 134, Brigade Garden, 9 Church Street, Baglore.
(Proceedings qua accused Syed Haseeb U/s. 82 Cr. PC executed).
f) Offence complained off : U/s 419, 420, 468, 471 r/w. 120 B
IPC & U/s. 12 Passport Act
g) Plea of the accused : Pleaded not guilty and claimed
trial
h) Arguments heard on : 05.09.2014.
i) Final order : Accused Gurmeet Singh stands
convicted & accused Maninder Singh stands acquitted.
j) Date of Judgment : 16.10.2014.
Brief statement of reasons for such decision :
1. As per the prosecution on or before 25.11.2004 the accused Kulwant Singh being passenger and other accused namely Gurmeet Singh, Syed Haseeb (since absconding) and Jagdev Singh being the agents and accused Maninder Singh, who issued the tickets, entered into the criminal conspiracy to facilitate the journey of accused Kulwant Singh in the name of Jaswant Singh on the basis of passport no. E7943729 issued at Chandigarh on 23.04.2004 which was having FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 2 Of 24 counterfeited UK visa bearing no. 187559D affixed on page no. 11. Upon scrutiny of documents same was found to be forged and accused Kulwant Singh was apprehended and present case was registered against the accused persons for the offences U/s. 419/420/468/471 IPC r/w. 120 B IPC & U/s. 12 Passport Act. Charges :
2. After investigations, charge sheet U/s 419/420/468/471 r/w. 120 B IPC & U/s. 12 Passport Act in the matter was filed. After hearing arguments, charge for the offences punishable U/s. 419,420,471 IPC r/w. Sec. 120 B IPC were framed against accused Kulwant Singh, Gurmeet Singh, Jagdev Singh and Maninder Singh to which they pleaded not guilty and claimed trial. During the course of trial accused Jagdev Singh was expired and proceedings qua him stand abated vide order dt. 28.11.2007 and accused Kulwant Singh stands convicted vide order dt. 08.07.2009.
Evidence :
3. Thereafter, Prosecution has examined 12 Witnesses to prove its case.
(i) Complainant Inspector Subey Singh was examined as PW1, who deposed on the lines of complaint and proved his complaint vide EXPW1, travel documents vide EXP1 to P4 and his report as EXP5.
During his cross examination on behalf of accused Gurmeet Singh and Maninder Singh, he stated that he did not bring any duty roaster with regard to his deployment at the counter. The forgery was detected with the help of UV Lamp. He further stated that he has not specifically mentioned the fact of UV FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 3 Of 24 Lamp in his complaint. He did not record any separate statement of passenger. He denied the suggestion that accused had not disclosed the name of any Haseeb or Jagdev .
(ii). Sh. Jaswant Singh, brother of accused Kulwant Singh was examined as PW2, who was running a shop of Hardware at Raikot, Punjab. He stated that he knew accused Gurmeet Singh as he used to visit his shop. He further stated that accused Gurmeet Singh, who used to work as an agent for sending people abroad, came to him and told that immigration officer are known to him and if he had to send anyone abroad. He told him about his brother Kulwant Singh for sending abroad for which he demanded Rs. 10 lac and the deal was finalized for sum of Rs. 7.5 lac. He stated that there was already one stamp on the passport of his brother Kulwant Singh therefore, accused Gurmeet Singh prepared his another passport. He further stated that initially he took Rs. 1.5 lac from them and after affixing the forged visa on the passport of his brother Kulwant Singh, he was taken from Chennai to Banglore and accused Gurmeet took Rs. 50,000/ from them. He further stated that initially they were not aware of the fact that visa given to them by accused Gurmeet Singh was fake and same was later came to their knowledge when his brother Kulwant Singh was arrested at IGI Airport. He further stated that accused Gurmeet Singh informed them that visa has been arranged/ affixed by him and took Rs. 5.5 lakh from them after receiving confirmation call from his brother. He further stated that his brother was taken to Banglore by accused Jagdev Singh (since expired) and Rs. 50,000/ was given to Jagdev Singh by accused Gurmeet Singh at the time of handing over the visa. He stated that he had given all the settled amount to accused Gurmeet Singh. He also stated that the passport given to his brother Kulwant Singh was fake and the FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 4 Of 24 whole incident took place in the year of 2004.
During his cross examination by the Ld. Defence Counsel, he stated that the accused Gurmeet Singh was residing at Raikot but could not tell his address. He further stated that they are three brothers(name of two brothers are Malkit Singh and Kulwant Singh) and work together as agriculturist and earn 5 to 6 lac per year but he could not show any document in this regard. He admitted that his brother Kulwant Singh already pleaded guilty. He stated that police recorded his statement but he could not tell the exact date of the same but it was in the year 2004. He denied the suggestion that he had not given any money to accused Gurmeet Singh and the visa was got affixed by his brother Kulwant Singh or that he was deposing falsely.
(iii) Mr. Sukhdev Singh, who was mason by profession was examined as PW3, stated that he used to purchase iron from accused Kulwant Singh and Jaswant Singh from their shop at Raikot. He stated that in his presence Rs. 5.5 lac was given by them to accused Gurmeet Singh in the year 2004. He further stated that accused Gurmeet Singh told them that visa was arranged for accused Kulwant Singh by him.
During his cross examination by the Ld. Defence counsel, he stated that accused Kulwant Singh was apprehended in this case but he did not know whether accused Kulwant Singh pleaded guilty or not. He stated that he had no idea from where they have arranged Rs. 5.5 lac and accused Kulwant Singh was not his relative. He stated that police recorded his statement. He further stated that accused Kulwant Singh and Gurmeet Singh were known to him even before 1996. He denied the suggestion that the payment of Rs. 5.5 lac was not given in FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 5 Of 24 his presence.
(iv) Sh. Malkit Singh, younger brother of accused Kulwant Singh who was agriculturist, examined as PW4. He deposed that accused Gurmeet Singh was known to him as he used to visit his shop and he works as an agent for sending the people abroad. He further stated that there was a talk of sending his brother Kulwant Singh to London with accused Gurmeet Singh at his shop for a consideration of Rs.10 lac but the deal was finalized in Rs. 7.5 lac for arranging the journey of his brother Kulwant Singh for London. He further stated that accused Gurmeet Singh took Rs. 1.5 lac firstly from them and after that his brother Kulwant Singh was taken to Banglore by Jaggi (since expired) and accused Gurmeet Singh collected Rs. 50000/ from them. Thereafter, his brother Kulwant Singh told him that Visa had been arranged by accused Gurmeet Singh and they paid Rs. 5.5 lac to accused Gurmeet Singh after taking loan from bank and proved the debit and credit entry in this regard in bank passbook as Ex. PW4/A. He further stated that police officials came to them and informed them that his brother Kulwant Singh was apprehended at IGI Airport as he got affixed a fake visa from Banglore and thereafter police recorded his statement and he admitted that he can identify the accused Gurmeet Singh.
In his cross examination, by the Ld. Defence Counsel, he admitted that the account no. 55044295030 was in his name and of his father Kartar Singh and the loan was taken in the name of his father Kartar Singh but he had received the loan amount. He admitted that his brother Kulwant Singh was one of the coaccused and he pleaded guilty. He denied the suggestion that his brother Kulwant Singh himself had arranged the visa. He volunteered that accused FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 6 Of 24 Gurmeet Singh arranged his visa. He further stated that the loan was paid to him in cash by the bank. He stated that police recorded his statement. He further stated that he is running a shop at Kalgidhar steel store, Raikot, Punjab. He further stated that the full name of Jaggi was Jagdev Singh. It was further stated by him that he had withdrawn the money from the bank, although the account was in the joint name along with his father Kartar Singh and loan was given to his father. He denied the suggestion that his brother Kulwant Singh had arranged the Visa and it was not arranged by accused Gurmeet Singh or no such money was paid to accused Gurmeet Singh for arranging the visa in question or he deposing falsely.
(v) Sh. Hardeep Singh, was examined as PW5. He deposed that he was inclined to go to abroad on work permit to earn money. He further deposed that he used to visit the shop of his friend at Raikot where accused Jagdev Singh (since expired) met him and a talk for sending him abroad took place with accused Jagdev Singh. Accused Jagdev Singh told him that he can apply for work permit through some company in Banglore and they both went to Banglore from Ludhiana for a meeting with said company in this regard, they stayed in a lounge and accused Jagdev Singh took him to Brigade Garden, MG Road, Banglore, where they met a person namely Syed Haseeb, who demanded Rs. 2.5 lac total and advance payment of Rs. 80,000/ and Rs. 1.5 lac for the ticket but he was not convinced with Syed Haseeb and came back to home. He further deposed that one person accompanied them to Banglore identifying himself as Jaswant Singh/ Kulwant Singh but he did not know his real name. They all three came back to Delhi but thereafter he went to his home Punjab separately and he FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 7 Of 24 did not know if any payment was received from accused Jagdev Singh by any person and he did not visit any shop with accused Jagdev Singh.
Thereafter he pleaded ignorance about the facts of the present case and was cross examined by the Ld. APP for the State. During the cross examination he denied all the suggestion and facts.
(vi). PW6. H. C Hardev was handed over the present complaint and pax Jaswant Singh along with travel document's by the clearing officer for registration of case. He took the same to PS for registration of case and handed over to Duty Officer. The travel documents were seized by Duty Officer vide memo Ex.PW6/A bearing his signatures at point A. In his cross examination by the Ld. Defence Counsel, he stated that he had not given any statement to police.
(vii). Mr. Purshottam Lal UDC RPO, Chandigarh has been examined as PW7. He was deputed to appear in the court vide office order Ex.PW7/A. He proved the records pertaining to the passport no. E7943729 which was issued to one Jaswant Singh, S/o. Sh. Karnail Singh, R/o H. No. 3233 Sukhram Nagar, Ludhiana. He also proved the verification report pertaining to the above said passport vide Ex.PW7/B and identified the signature Sh. Vidhi Chand, the then RPO, Supdt.
In his cross examination by the Ld. Defence Counsel, he deposed that he knew Sh. Vidhi Chand, as he was working in the same office and presently Sh. Vidhi Chand posted at Patiala House and earlier he was posted at Chandigarh. He further stated that he joined the Chadigarh passport office on FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 8 Of 24 09.07.2007 and the report was not signed in his presence by Sh. Vidhi Chand.
(viii). PW8 H.C Jagjeet participated in the investigation with IO SI Afsar Raza when accused Gurmeet Singh was arrested on 25.11.2004. His testimony could not be concluded as he was not feeling well and thereafter he was not recalled.
(ix). Mukesh Chand, Manager, Hotel Miniyes Please, has been examined as PW9 . However, he pleaded ignorance about the facts of the present case and turned hostile and cross examined by the Ld. APP for the State. During the cross examination he denied all the suggestion and facts.
(x). Varun Jain, Assistant Manager, ICICI Bank, has been examined as PW10. He has proved the account statement of account no. 000201017307 for the period 01.08.2004 to 07.01.2005 of the ICICI Bank vide Ex. PW10/A and stated that the above said account is still active in name of one Syed Haseeb.
In his cross examination by the Ld. Defence Counsel, he deposed that he had not brought the original accounts statement w.e.f 01.08.2004 to 07.01.2005 which is Ex. PW10/A.
(xi) Sunil, Cashier, Hotel V.T Orchid, 206 Cubbonpet Road, Opp. Silk Exchange, Banglore, has been examined as PW11. He brought the record of hotel arrival register and as per record he stated that accused Jagdev Singh R/o VPO Raipur, arrived in above said hotel on 20.09.2004 and left the hotel on 23.09.2004 and proved the register entry in this regard vide Ex.PW11/A. He also brought the copy of the bill and proved the same vide Ex.PW11/B. He FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 9 Of 24 further stated that as per their hotel record accused Jagdev Singh again came to their hotel on 15.10.2004 and proved this fact vide register entry Ex. PW11/C. In his cross examination by the Ld. Defence Counsel, he deposed that he had been working in said hotel for the last eight months but he did not bring any appointment letter. He stated that name of hotel owner is Mr. Vinod.
(xii) PW12, IO SI Afzar Raza, was handed over the original complaint and proved the same Ex. PW1/A. He also proved the Carbon copy of FIR Mark as X and travel documents including report of U. K. High Commission vide Ex.P1 to P5 on which it was mentioned that UK Visa affixed over the passport was fake. He also recorded the statement of Ct. Hardev and HC Jai Bhagwan, Duty Officer. He proved the arrest of accused Jaswant Singh (real name of whom is Kulwant Singh) vide memo Ex. PW12/A, his personal search vide Ex.PW12/B and his disclosure statement vide Ex. PW12/C. He further deposed that during investigation accused revealed that his real name was Kulwant Singh and he had paid money to agents Gurmeet Singh and Jagdev who had got tickets etc. from the Libra Travels. Thereafter he recorded the statements of witnesses. He further deposed that accused Kulwant Singh was taken to Bangalore in search of accused Syed Haseeb and shop of Syed Haseeb was found closed. He took non bailable warrants of accused Gurmeet Singh, Jagdev and Syed Haseeb and thereafter on 22/01/2005 accused Gurmeet Singh was arrested vide arrest memo Ex. PW12/D and his personal search was conducted vide memo Ex. PW12/E and recorded his disclosure statement vide memo Ex. PW12/F. Thereafter accused Gurmeet Singh was produced before the Court and taken on police FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 10 Of 24 custody remand. During police custody remand accused Gurmeet Singh produced money deposition slip of ICICI Bank Mark X1 and shown the office of Libra Travel from where accused Gurmeet Singh had arranged the ticket for accused Kulwant Singh through accused Maninder Singh Bhasin. He further deposed that during police custody remand another Agent Jagdev (expired) was arrested on 27/01/2005 vide arrest memo Ex. PW12/G and his personal search was conducted vide memo Ex. PW12/H and his disclosure statement was recorded vide Ex. PW 12/I. He recorded the statement of public witness Satish Kumar Gupta who had visited the office of Libra Travel alongwith accused Kulwant Singh for getting the ticket done. He collected the passport verification report from passport office Chandigarh and prepared the chargesheet against Kulwant Singh, Gurmeet Singh and Jagdev. During further investigation accused Maninder Singh Bhasin was arrested vide arrest memo Ex. PW12/J and his personal search was conducted vide memo Ex. PW12/K. He deposed that he got issued process of U/sec. 82 Cr. PC against accused Syed Haseeb which was executed after affixing outside the shop of accused Syed Haseeb by Sub Inspector Amleshwar Rai. He further deposed that thereafter he transferred from the PS: IGI Airport and the case file was deposited with MHC(R).
In his cross examination by the Ld. Defence Counsel, Air Ticket was put to him and asked to show the name of accused and Travel Agency on the ticket Ex. P3 and he stated that on the ticket only Libra Travels was mentioned and does not have any signature of its Proprietor i.e. accused Maninder Singh Bhasin on it. He volunteered that signature of the Proprietor of Travel Agency was not required on the Air Ticket. He admitted that the amount deposited by FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 11 Of 24 accused Gurmeet Singh was duly credited into the account of accused Syed Haseeb and he volunteered that during scrutiny of his statement it was found that a cheque of Rs. 49,000/ was issued in the favour of accused Jagdev. He further deposed that he had visited Libra Travel Agency and met accused Maninder Singh Bhasin and Maninder Singh Bhasin admitted that ticket was issued by him. He further stated that no cash receipt was seized from Kulwant Singh and his brothers for payment of Rs. 7 lacs paid to Gurmeet Singh.
He denied the suggestion that accused Gurmeet Singh did not receive any money or he is not party to it or that accused Maninder Singh had never issued any ticket nor received any extra money.
4. No other witness was examined by prosecution and hence, prosecution evidence was closed and the statement of accused Gurmeet and Maninder Singh U/s. 313 Cr. PC was recorded. No Defence evidence was led.
5. Arguments advanced by both sides heard. Considered.
6. APPRECIATION OF EVIDENCE: The Hon'ble Delhi High Court in Criminal Appeal no. 327/2007 titled as "Akbar & Anr. v. State" decided on 29.05.2009 opined that the appreciation of ocular evidence is a Herculean task. There is no fixed or straitjacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 12 Of 24 have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettinsoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident(either as between the evidence of two FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 13 Of 24 witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI.By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
VII.Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII.The powers of observations differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX.By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
XI.Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 14 Of 24
XII.A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination by Counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.(These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cr. LJ 1096, Leela Ram v. State of Haryana, 1997 Cr.LJ 3178 and Tahsildar Singh v. State of U.P., 1959 Cr. LJ 1231).
7. FINDING'S QUA ACCUSED MANINDER SINGH: The only allegation against accused Maninder Singh is that he issued the tickets to pax Kulwant Singh despite knowing that his visa is fake and charged Rs. 10,000/ extra for his immigration clearance. However, none of the prosecution witness stated anything against accused Maninder Singh. PW12 IO SI Afsar Raja deposed that coaccused persons disclosed the involvement of accused Maninder Singh but no recovery pursuant to their disclosure was FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 15 Of 24 effected to prove the guilt of accused Maninder Singh. Further no independent evidence has been adduced against accused Maninder Singh. Even the sole witness PW Satish Gupta who could have lend some credence to the prosecution case against accused Maninder Singh was not examined as he expired. Therefore there is nothing on record against accused Maninder Singh except the disclosure statement of coaccused persons which remain uncorroborated, hence cannot be relied upon. Reliance can be placed on the case titled as Sidharth v State (2005) 12 SCC 545, wherein it is held that : "Confession of a coaccused can not be the sole basis of conviction of any other accused. But, it can be used in support of and to lend assurance to other independent evidence available against the other accused"
Accordingly accused Maninder Singh stands acquitted.
8. FINDINGS QUA ACCUSED GURMEET SINGH: Accused Gurmeet Singh is facing trial for the offences punishable U/sec. 419,420,471 r/w. 120 B IPC. As per prosecution Gurmeet conspired with co accused persons to facilitate the journey of pax Kulwant Singh to London against consideration of Rs. 7,50,000/. In pursuance of the conspiracy Gurmeet Singh prepared a passport bearing no. E7943729 in the name of Jaswant Singh for accused Kulwant Singh as the passport of Kulwant Singh already had a stamp. Thereafter accused Gurmeet Singh sent Kulwant Singh alongwith coaccused Jagdev @ Jaggi to Banglore and got affixed the fake U. K. Visa on the said passport through another accused Syed Haseeb and charged Rs. 7,50,000/ FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 16 Of 24 (total). However, accused Kulwant Singh was apprehended by the Immigration authorities at IGI Airport while trying to depart in the name of Jaswant Singh with fake U. K. Visa. The prosecution has examined 12 witnesses to prove its version. PW2 is the brother of pax Kulwant Singh, who categorically stated that accused Gurmeet Singh took Rs. 7.5 lakh for sending his brother abroad and arranged the passport and fake visa. He also explained the sequence of events and schedule of payment made to accused Gurmeet Singh. PW3 is an independent witness, who also verified the factum of last payment of Rs. 5.5 lakh to Gurmeet Singh in his presence and deposed that Gurmeet informed that visa has been arranged for Kulwant Singh.
PW4 fortified the testimony of PW2 and deposed on similar lines. PW7 verified the issuance of passport no. E7943729 in the name of Jaswant Singh. PW12 is the Investigating Officer, who carried out the entire investigation.
9. To bring home conviction against the accused, the prosecution has to prove that the accused Gurmeet Singh, Jagdev Singh and Maninder Singh and Syed Haseeb being agents entered into a conspiracy with coaccused Kulwant Singh (the passenger) to facilitate journey of the accused Kulwant Singh in the name of Jaswant Singh on the basis of a passport having counterfeited visa affixed on page no. 11 for unlawful consideration. In pursuance to that conspiracy all the acts took place and the consequences ensued.
LAW OF CONSPIRACY The essence of a conspiracy is that there should be an agreement to do an illegal act or to do a legal act by illegal means. The said agreement may be FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 17 Of 24 proved by direct evidence or may be inferred from the acts and conduct of parties. There is no difference between the proof of mode of conspiracy and that of any other offence. It can be established by direct evidence or by circumstantial evidence. However as per Provisions of Section 10 of the Evidence Act which introduces the Doctrine of Agency, if the conditions laid down therein are satisfied the act done by one accused is admissible against co conspirators. The evidentiary value of the said act is limited by two circumstances namely the acts shall be in reference to the common intention and in respect of the period after such intention was entertained by anyone of them.
The Hon'ble Supreme Court in catena of judgments held that: A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statement of the others, unless there is a common bond linking all of them together. Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statement of another. It is only when there is evidence of a concerted action in furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a conspiracy is acting as the agent of the rest of them. As soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement of declaration made, by any one of the coconspirators, is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy. Otherwise, stray acts done in darkness in FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 18 Of 24 prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy."
In State Vs. Nalini (1999 (5) SCC 253), the Hon'ble Supreme Court observed that : In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omission from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
In Kehar Singh v. State, AIR 1988 SC 1883, Hon'ble Supreme Court held that : " It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 19 Of 24 communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient".
In V.C Shukla V. State 1980(2) SCC 665, it was held : " In most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstance giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."
10. Coming to the instant case as per the testimony of PW2 it is proved that accused Gurmeet Singh conspired with convict/ pax Kulwant Singh to send him abroad by illegal means against consideration. PWs categorically deposed that accused Gurmeet Singh got prepared the passport after receiving a sum of Rs. 1.5 lac and thereafter he sent his brother to Banglore alongwith coaccused Jagdev (since expired) for arranging visa and took Rs. 50,000/. Thereafter, accused Gurmeet Singh took Rs. 5.5 lacs from family members of pax /convict Kulwant Singh upon confirmation that the visa has been arranged by accused Gurmeet Singh. The testimony of PW3 and 4 also proved the meeting of minds between convict and accused Gurmeet Singh for facilitating his journey to abroad. Further, the fact that convict Kulwant Singh was sent to Banglore by accused Gurmeet Singh also indicates towards meeting of minds between accused persons. Payment of Rs. 5.5 lacs for arranging visa to accused Gurmeet Singh also shows that he acted in concert with the other accused persons for an illegal act of arranging the fake visa. His guilty intention can also be gathered from the fact that he took the money for arranging the visa though he was not FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 20 Of 24 authorized to do so.
Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstance proved must from a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
Apprehension of convict Kulwant Singh with the passport issued in the name of Jaswant Singh having forged U. K. visa is not in dispute. Verification report of visa dt. 25.11.2004, Ex. P5 is not disputed. Even otherwise, no suggestion to this effect has been given to any of the prosecution witnesses. The defence taken by the accused Gurmeet Singh seems to be moonshine as no supporting evidence has been led.
The contradictions and discrepancies in the testimony of prosecution witnesses pointed out by Ld. defence counsel are trivial in nature and do not suffice to render them unbelievable. The witnesses corroborated the prosecution case substantially.
Even otherwise, minor contradictions, if any, are bound to occur due to lapse of time and individual appreciation and narration of the facts. It is so held in Shankar vs. State of Karnataka, AIR 2011 Supreme Court 2302 that : "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due o mental disposition such as shock and horror at the time of occurrence.
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Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e, materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
11. Further, no ground has been shown for the false implication of accused Gurmeet Singh. Though, Ld. defence counsel argued that as there was business rivalry between accused Gurmeet and pax Kulwant Singh and his family that is why accused Gurmeet was falsely implicated in this case but no evidence to this effect has been led nor any suggestion was given to the prosecution witnesses in this regard. Therefore, this defence is an afterthought and hold no water. Even in statement of accused recorded U/s. 313 Cr. PC accused has not taken any defence and merely denied the prosecution case. It seems that the defence version has been invented under the strain of compulsive necessity.
Lastly, this Court is remindful of the dictum of Hon'ble Justice Sh. V.R. Krishna Iyer in the case of Shivaji Sahabrao Bobade vs. State of FIR NO.: 522/04 POLICE STATION: IGI Airport U/S: 419, 471 r/w. 467 IPC &120 B IPC. Page no. 22 Of 24 Maharashtra, (1973)2 SCC 793 wherein it is held that : "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerations devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that the acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
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12. In these circumstances, I am of the considered opinion that prosecution has proved its case beyond reasonable doubts that accused Gurmeet hatched a conspiracy to facilitate journey of Kulwant Singh to London by illegal means in pursuance of which convict Kulwant Singh impersonated himself as Jaswant Singh to the immigration authorities and used the forged U. K. Visa affixed on passport no. E7943729. Hence, ingredients of offence punishable U/s. 419, 471 r/w. 467 IPC alongwith Section 120 B IPC are made out against the accused Gurmeet Singh. Accused Gurmeet Singh stands convicted accordingly.
Announced in the open
Court on 16th October, 2014 AJAY GARG
ACMM01/New Delhi District
Patiala House Courts, New Delhi
This judgment contains 24 pages and each paper is signed by me.
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