Delhi District Court
State vs . (1) Suleman Khan on 15 July, 2023
IN THE COURT OF SH. AJEET NARAYAN, MM-02, KARKARDOOMA
COURTS/SHAHDARA, DELHI.
State Vs. (1) Suleman Khan
(2) Hasibul Rehman
FIR No. 175/2002
PS: Farsh Bazar
U/S: 466/468/474/475 IPC & Section 12 Passport Act 1967
ID number of the case : 75251/16
Date of commission of offence : 13.08.2002
Date of institution of the case : 11.10.2002
Name of the complainant : Ct. Governor
Name of accused and address : (1) Suleman, S/o Sh. Sultan, H. No. 53,
Vishwakarma Park, Laxmi Nagar, Delhi.
(2) Hasibul Rehman, S/o Abdul Jamil, R/o N-
38/A-152, C.D. Park, Jahangirpuri, Delhi-33.
Offence complained of or proved : 466/468/474/475 IPC & Section 12 Passport Act
Plea of the accused : Pleaded not guilty
Order reserved : 15.04.2023
Final order : Accused Suleman Khan and Hasibul Rehman
are acquitted.
Shahnasha Zama Khan @ Babloo declared
absconder on 31-03-2004.
Date of judgment : 15-07-2023
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 1 of 24
JUDGMENT
BRIEF FACTS
1. Vide this judgment I shall dispose off, the above captioned case FIR No. 175/2002, PS Farsh Bazar. The case of the prosecution is that, the allegation against the accused Suleman Khan is that on a secret information, on 13.08.2002 at approx., 07:45 pm at Pandav Road Gali, Vishwas Nagar, Delhi within the jurisdiction of PS Farsh Bazar, he was found in possession of allegedly 6 fake passports, 3 visa stickers, 5 rubber stamps purported to be of Embassy of Saudi Arabia and 3 stamp pad thereby having the possession of same with the intention that the same shall fraudulently and dishonestly be used as genuine and the passports which were found in possession of accused Suleman Khan, they were in the name of other persons. Second accused Hasibur Rehman was named in the disclosure statement of accused Suleman Khan, hence the allegation against accused Hasibur Rehman is that he is accomplice of main accused Suleman Khan and he has induced the victims for getting them visas and had taken their passports and had committed forgery. Accordingly, they stands charged for offence u/s 420/468/34 IPC & 12 of Passport Act.
2. After completion of investigation, first charge sheet was filed against accused Suleman Khan under Section 466/468/474/34 IPC & 12 of Passport Act on 11.10.2002, and a supplementary chargesheet was filed against accused Hasibur Rehman FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 2 of 24 on 05-04-2004 under Section 420/468/34 IPC & 12 of Passport Act and other co- accused Shahnasha Zama Khan @ Babloo was declared absconder on 31-03-2004. Cognizance of offence was taken and copy of charge sheet was supplied to the accused persons in compliance of Section 207 Cr.P.C.
3. Thereafter, vide order dated 02.07.2008, charge for committing offence punishable u/s 474/475 IPC & 12 of Passport Act was framed against both the accused, to which, they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. The prosecution has examined 16 prosecution witnesses in all in the present case. The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which is follows:
(i) PW-1 is HC Sarjit Singh who has deposed that on 13.08.2002 he has made a DD No. 39B, Ex. PW1/A (OSR) regarding departure of Ct. Governor and Ct. Ram Bhed on patrolling duty in the area of Farsh Bazar. Thereafter, he was cross-examined by the Ld. defence counsel.
(ii) PW-2 is ASI Rishi Pal, who has deposed that on 13.08.2002 he was posted at PS Farsh Bazar as a DO. On that day, at around 07:55 PM, Ct. Governor informed telephonically that he along with Ct. Ramhet apprehended one accused (Suleman) along FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 3 of 24 with scooter bearing no. DD E 429 and from his possession 06 passport, rubber stamp, visa sticker, stamp pad had been recovered. PW-2 further deposed that on the basis of the same, he registered a DD No. 19A, Ex. PW2/A (OSR) and copy of the same was handed over to SI Rajneesh Kumar who along with Ct. Kanwar Pal reached at the spot for necessary action. He further deposed that on same day, at about 09:55 PM, Ct.
Kanwar Pal produced a rukka to him in PS for registration of FIR which was sent by SI Rajneesh on that basis he/PW-2 had registered the FIR, Ex. PW2/B (OSR) and the copy of the FIR and rukka handed over to Ct. Kanwar Pal to hand over the same to SI Rajneesh for investigation. On the same day, at about 09:55 PM, PW-2 lodged Kaymi DD No. 20 A, Ex. PW2/C (OSR) with regard to the registration of the FIR. Thereafter, PW-2 was cross-examined by the Ld. defence counsel.
(iii) PW-3 is HC Governor/complainant, who has deposed that on 13.08.2002, he along with Ct. Ram Het were on patrolling duty near Ram Gali, Pandav Road, in the area of Farsh Bazar. At about, 07:30 PM, a secret informer met PW3 and Ct. Ram Het and had informed that one person who used to give false assurance to the public person to send them abroad, would come from the side of Sawarn Cinema on a scooty bearing no. DD E429 and it might be possible that some passports were lying in the above said scooter. PW3 also asked the public persons to join the investigation but no one was ready and left the spot without disclosing their name and address. Meanwhile, PW3 and the ct. Ram Het saw accused Suleman coming from the side of Swarn Cinema on the FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 4 of 24 scooter and on being checked, 6 passports, 3 visa sticker and 5 rubber stamp and 3 rubber stamp pads were recovered from the possession of accused. PW 3 informed to the PS about this and IO/SI Rajneesh, Ct. Kanwar Pal came at the spot. PW-3 handed over the recovered case property and scooter along with accused to SI Rajneesh. IO recorded the statement of PW-3 which is Ex. PW3/A and seized the above said scooter vide seizure memo Ex. PW3/B and seized above said case property vide seizure memo Ex. PW3/C and Ex. PW3/D. IO prepared the rukka and handed over to the Ct. Kanwar Pal for the registration of the FIR. Ct. Kanwar Pal went to PS along with rukka and returned back at the spot along with copy of FIR and original rukka and handed over the same to the IO. IO recorded disclosure statement Ex. PW3/E and arrested the accused Suleman vide arrest memo PW3/F and personal search was conducted vide personal search memo Ex. PW3/G. IO prepared the site plan at the instance of PW3.
The case property was shown during examination in chief to PW3 which are Stamp Pads which are collectively Ex. P1, stamps are collectively Ex. P2, 6 passports are collectively Ex. P3 and visa stickers are collectively Ex. P4, which PW3 identified the same. (It is important to note that case property/one paper pullanda was brought in court in unsealed condition.) Accused Suleman was identified by the witness PW- 3. PW-3 was also cross-examined by the Ld. defence counsel of accused Suleman. Thereafter, despite opportunity, PW-3 was not cross-examined by the Ld. defence counsel for accused Hasibur Rehman.
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 5 of 24
(iv) PW-4 is HC Ramhet, who deposed that on 13.08.2002, he along with PW3/Hc Governor were on patrolling duty near Ram Gali, Pandav Road. At about, 07:30 PM, a secret informer met PW3 and PW-4 and had informed that one person who used to give false assurance to the public person to send them abroad, would come from the side of Sawarn Cinema on a scooty bearing no. DD E429 and it might be possible that some passports were lying in the above said scooter. They also asked the public persons to join the investigation but no one was ready and left the spot without disclosing their name and address. Meanwhile, PW3 and the PW-4 saw accused Suleman coming from the side of Swarn Cinema on the scooter and on being checked, 6 passports, 3 visa sticker and 5 rubber stamp and 3 rubber stamp pads were recovered from the possession of accused. Accused Suleman was apprehended along with the case property by PW-4 and PW-3. PW 3 informed to the PS about this and IO/SI Rajneesh, Ct. Kanwar Pal came at the spot. PW-3 handed over the recovered case property and scooter along with accused to SI Rajneesh. PW-4 signed as a witness in the seizure memo already Ex. PW3/B, seizure memo of case property i.e., PW3/C and Ex. PW3/D and on disclosure statement Ex. PW3/E and arrest memo Ex. PW3/F and personal search memo of accused Suleman. IO after using the seal handed over the seal to PW4 and the case property was identified by PW 4 in his examination in chief. Accused Suleman was identified by the witness PW-4. Thereafter, despite opportunity, PW-4 was not cross-examined by the Ld. defence counsel. Afterwards, an application under Section 311 CrPC was allowed and PW-4 was FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 6 of 24 cross-examined by the counsel of accused Suleman Khan.
(v) PW-5 is Ct. Kanwar Pal, who has deposed that on 13.08.2002, on the receipt of DD No. 19A along with IO SI Rajneesh reached at the spot at Ram Gali, Pandav Road at T- point where PW3 and PW4 met him along with IO. PW-3 and PW-4 handed over accused Suleman along with case property to IO. PW-5 signed the document i.e., seizure memo of Scooter and seizure memo of case property. IO prepared the rukka and the same was handed over to PW-5 for registration of FIR. PW-5 went to PS along with rukka and returned back at the spot along with copy of FIR and original rukka and handed over the same to the IO. IO recorded disclosure statement of accused Suleman vide Ex. PW3/E. Arrest memo is already Ex.PW3/F and personal search memo is already Ex.PW3/G. PW-5 also identified the case property in his examination in chief. Thereafter, PW-5 was not cross-examined by the Ld. defence counsel. Afterwards, an application under Section 311 CrPC was allowed and PW-5 was cross-examined by the counsel of accused Suleman Khan.
(vi) PW6 is Insp. Atul Tyagi, who has deposed that on 07.10.2002, the case was marked to him and he verified the pass port issued from Jaipur Pass Port office and received the report from passport office which is Ex. PW6/A Ex. PW6/B and Ex. PW 6/C of the same. After that PW-6 reached at Saudi Arabia Embassy at Delhi and obtained the report Ex.PW6/D with regard to issued Visa and Rubber stamp sealed by FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 7 of 24 the 1st IO. PW-6 recorded the statement of Ct. Sudhir and MHC(M) who participated with him. PW-6 filed the charge sheet with the findings that the further investigation is required and supplementary charge sheet to be filed after completion of the investigation. Despite opportunity, PW-6 was not cross-examined by the Ld. defence counsel.
(vii) PW-7 is Ram Chand Meena, who has deposed that in year 2002 he was working as Superintendent at Passport Office Jaipur. At that time, he received 6 passports bearing no. B0139367, B1709018, M304711, A7379014, E1135398 and E0763939, Ex. P1 to Ex. P6. PW-7 gave the report which is already Ex. PW 6/C of the same passports. Thereafter, PW-7 was duly cross-examined by the Ld. defence counsel for accused persons.
(viii) PW-8 is HC Sudhir, who has deposed that on 09.10.2002, he along with PW-6 went to the pass port office Jaipur and PW-6 collected the report of the same. On 10.10.2002, witness along with PW-6 returned back to Delhi and on direction of PW- 6/IO, he collected a one sealed envelope from the Mal Khana PS Farsh Bazar and went to Embassy of Saudi Arabia where he met with PW-6/IO. Witness handed over the sealed envelope to IO which was further handed over to Mr. Ossama who was an officer posted in Embassy and Mr. Ossama prepared the report and handed over to PW-6 in a sealed envelope. Thereafter, PW-8 was duly cross-examined by the Ld. defence counsel.
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 8 of 24
(ix) PW9 is Inspector Rajnish Kumar, who has deposed that on 13.08.2002, an information was received in the PS that accused Suleman was arrested by Ct. Governor and Ct. Ram het. He along with Ct. Kanwar Pal went to the spot and met with PW-3 and PW-4. PW-3 and PW-4 handed over accused Suleman to IO along with case property and scooter. PW-9 took the possession of the above said scooter vide seizure memo Ex. PW3/B and seized the case property Ex.PW3/C and PW3/D. PW-9 recorded the statement of PW3 which is Ex. PW3/A. On that basis PW-9 prepared a rukka which is Ex. PW9/A and the same was handed over to Ct. Kanwar Pal. PW-9 arrested the accused Suleman vide arrest memo, PW3/F and personal search memo, PW3/G and recorded disclosure statement, PW3/A. In the disclosure, Suleman disclosed the name of his associate as Hasibul Rehman and Bablu @ Shahanshah. PW-9 identified the case property in the examination in chief which is already Ex. P1 to Ex. P4 in the testimony of PW-3. Thereafter, PW-9 was duly cross-examined by the Ld. defence counsel.
(x) PW-10 is ASI Rohtash Kumar who has deposed that on 12.02.2014, he was working as Naib court from PS Farsh Bazar and posted at in the Court of Sh. Chandra Shekhar, Ld. MM. SI Birender came before the Court and moved an application of formal arrest and interrogation of Hasibul Rehman @ Mulla and SI Birender Singh formally arrested Hasibul Rehman @ Mulla and recorded disclosure Statement which is Ex. PW10/A. Witness has correctly identified the accused Hasibul Rehman present in the court. Thereafter, PW-10 was duly cross-examined by the Ld. defence counsel.
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 9 of 24
(xi) PW-11 is ASI Kushal Pal who has deposed that on 14-03-2004, he was posted at PS Farsh Bazar as a Constable. On that day he along with SI Birender Singh went to Jaipur Passport Office. Thereafter SI Birender Singh took the address of some person from there and thereafter they went to Rattan Garh, District Churu, Rajasthan and met one Chunni Lal. There his brother Shiv Bhagwan also met them and he told them that Chunni Lal had expired on 28.09.2002. Thereafter IO took possession of death certificate. Thereafter, PW-11 was duly cross-examined by the Ld. defence counsel.
(xii) PW-12 is Harun Sain who has turned hostile on the point of identification and has not supported the case of prosecution. Witness has failed to identify the accused Hasibul Rehman in the court and has denied suggestion given by Ld. APP that he is intentionally not identifying the accused. Thereafter, PW-12 was duly cross-examined by the Ld. defence counsel.
(xiii) PW-13 is Nirmal who has turned hostile on the point of identification and has not supported the case of prosecution. Witness has failed to identify the accused persons including accused Hasibul Rehman in the court and has denied suggestion given by Ld. APP that he is intentionally not identifying the accused. Thereafter, PW-13 was not cross-examined by the Ld. defence counsel despite opportunity being given.
(xiv) PW-14 is Shri Bhagwan, has turned completely hostile and has not supported the case of prosecution. Witness has failed to identify the accused persons in the court and FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 10 of 24 has denied suggestion given by Ld. APP that he is intentionally not identifying the accused. Thereafter, PW-13 was duly cross-examined by the Ld. defence counsel. Thereafter, PW-14 was not cross-examined by the Ld. defence counsel despite opportunity being given.
(xv) PW-15 is ASI Manjeet, who has deposed that on 13.02.2004, he was posted at PS Farsh Bazar as constable. On that day he joined investigation with IO/SI Birender and he along with SI Birender reached at PS Vivek Vihar. Accused Hasibul Rehman was behind the bar in said PS and he was taken out from the lock up and they went to the house of accused, CD Park, Jahangirpuri, where the house of accused was searched and the son of accused met there. Nothing was recovered from the house of the accused. The search memo is Ex.PW15/A. Thereafter accused was produced before the court in KKD and from there he was sent to judicial custody. Thereafter, PW-15 was not cross-examined by the Ld. defence counsel despite opportunity being given. (xvi) PW-16 is Retd. Inspector Devender Singh, who has deposed that on 25.10.2002, he was handed over the file of the present case and on 21.11.2002, he moved an application for issuance of NBWs against accused Hasibur Rehman @ Shahanshah. On 11.12.2002, he was transferred to West District, Mobile Crime Team. I handed over the file to MHCR PS Farsh Bazar. His application for issuance of NBWs is Ex. PW-16/A. Thereafter, PW-16 was cross-examined by the Ld. defence counsel.
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 11 of 24
5. Prosecution has examined 16 prosecution witnesses and PE was closed on 04.11.2022. Statement of both the accused under Section 313 Cr.PC read with Section 281 Cr.PC was conducted on 25.11.2022 and all the incriminating evidences against the accused persons have been put to them to which the both the accused denied the prosecution case and stated that the present case is a false and fabricated case and they have been falsely implicated in the present case.
Defence has not examined any witness in his favour and t hereafter, DE was closed on 25.11.2022 and, the matter was fixed for final arguments.
6. I have perused the record and heard the arguments from both sides. Sh. Vinayak Sharma, Ld. APP for the State has argued that material on record clearly points towards guilt of the accused persons.
On the other hand, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused and there are material contradictions in the story of the prosecution. It has been stated that accused persons have been falsely implicated in the present case by police along with secret informer.
7. I have also carefully perused the record. The court has carefully examined the entire material available on record including the testimony of the witnesses from both sides recorded before the Court. After arguments were heard, matter was fixed for judgment.
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 12 of 24
APPRECIATION OF EVIDENCE
8. Before proceeding further, there is need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rest on the shoulders of the prosecution, which burden never shifts on to the accused persons. Also, it is no longer Res Integra that accused persons are entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
9. In the present case the charge for the offence U/s 474/475/34 IPC and Section 12 of Passport Act has been framed against both accused persons. Before appreciating the evidence, let us first discuss relevant legal provisions given under Indian Penal code.
A. Section 474 IPC provides punishment for Having possession of document described in Section 466 or 467 knowing it to be forged and intending to use it as genuine. Section 474 IPC reads as under: -
FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 13 of 24 "Section 474: Having possession of document described in Section 466 or 467 knowing it to be forged and intending to use it as genuine : Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in Section 466 of IPC be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and if the document is one of the description mentioned in Section 467, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."
The essential ingredients to be proved to bring the act of the accused within the purview of Section 474 IPC are that: -
(i) That the document which is recovered from the accused is forged.
(ii) It must be established that the accused knew that the documents were forged.
(iii)Thirdly, it must also be established that the accused, knowing that the documents were forged, intended the same, fraudulently or dishonestly, to be used as genuine.
B. Section 475 IPC provides punishment for Counterfeiting device or mark used for authenticating documents described in section 467, or possessing counterfeit marked material. Section 475 IPC reads as under: -
"Section 475: Counterfeiting device or mark used for authenticating docu ments described in section 467, or possessing counterfeit marked material: Whoever FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 14 of 24 counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document described in section 467 of this Code, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The essential ingredients to be proved to bring the act of the accused within the purview of Section 475 IPC are an accused has forged or counterfeited, a person's signature or mark used in lieu of a signature, by engraving it on a plate, or other substance, or forging it on a paper in his possession so that it may be used for the purpose of authenticating a forged document. This section makes a mere preparation that may be necessary for forging a document, as specified in Section 467 IPC, punishable as an offence.
C. Section 12 of Passport Act provides offences and penalties under the Passport Act. Section 12 of Passport Act reads as under: -
"(1) Whoever-
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 15 of 24
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to [two years or with fine which may extend to five thousand rupees] or with both........................................"
Hence, for attracting the Section 12 of Passport Act, in this case, it is necessary to prove that accused has knowingly used the passport issued to another person.
10. Now adverting to the facts and circumstances of the present case, it is the case of prosecution that accused persons have possessed the forged documents, i.e., passport, visa stickers and rubber stamps with the intention that that same shall be fraudulently or dishonestly used as genuine. On the other hand, it is the defence of accused that both the accused persons have been falsely implicated and the passports, visa etc., has been planted upon them.
Coming to the case of prosecution, prosecution has to prove that the document i.e., passport and Visa stickers are forged and accused have knowledge that the documents were forged and accused persons have intention to use them fraudulently or dishonestly, as genuine. It is the case of prosecution that the passport which were allegedly recovered from the accused Suleman Khan are not forged as they are found to be genuine as per report Ex. PW6/C, of PW-7, concerned official of passport office FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 16 of 24 Jaipur. It is also the case of prosecution that apart from allegedly forged documents i.e., the passport and Visa stickers, rubber stamps are also recovered from the accused Suleman Khan which are forged and not genuine. Hence, it is only to be seen as to whether the Visa sticker and rubber stamps are genuine or not and whether they are recovered from the accused, for the offence charged against the accused persons u/s 474 IPC and Section 475 IPC.
As per prosecution story, IO/PW-6 have obtained the report regarding the Visa sticker and rubber stamps which were sent to Embassy of Saudi-Arabia situated at Delhi which is Ex.PW6/D. As per report of Embassy, the five rubber stamps and stamp pad are forged and are not the property of Embassy, also, visa stickers are not genuine. The prosecution ought to have called the concerned person from the Embassy of Saudi- Arabia for examination as witness for proving the report which submits that the Visa Stickers and rubber stamps are forged. Only the report which is Ex.PW6/D is not sufficient to hold that the visa stickers and rubber stamps are forged. The report which is given by the Embassy to the IO is not in itself admissible for proving the fact the visa stickers and rubber stamps are forged. The concerned official from the Embassy or the maker of document should have been called in evidence and accused persons should have the opportunity to cross-examine the concerned official as it is not clear from the report on what basis, it has come on conclusion that the visa stickers and rubber stamps are forged. Hence, prosecution has not conclusively proved that visa stickers and rubber FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 17 of 24 stamps are forged.
Coming to the other aspect, whether the recovery of alleged passports and visa stickers and rubber stamp is proved by the prosecution successfully, it is the case of prosecution that one secret informer has informed the recovery witness, PW-3 HC Governor that one person who used to give false assurance to the public persons to send them abroad is having some passports and he could be apprehended, but it is on record that there is no public witness who was present at the time of arrest and recovery of case property. Coming to the testimony of the complainant/PW-3, and PW-4 who are the only recovery witness, they have deposed that they were on patrolling duty in the concerned area at the relevant time, and PW-3 received the information from secret informer regarding accused person, and had recovered passports, visa stickers, rubber stamps, and stamp pads from accused Suleman and no independent public person has joined as witness in the present matter despite the place of recovery being a public place. As per deposition of recovery witnesses and IO/PW-9, some public persons were asked to join the investigation but none agreed and went away without telling their names and addresses. It is on record that no notice was given to any public person who refused to join the proceedings. The explanation offered by prosecution witness does not seem plausible, as the name of public persons who were requested to join the investigation have not been mentioned anywhere. IO could have given notice to them and could have taken any action against those persons. Hence, it is clear that public persons / public FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 18 of 24 witnesses were available at the alleged place of recovery, however, no sincere efforts were made to join the public persons in the investigation and this factor raises doubts about the veracity of the case of the prosecution / alleged recovery. The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses. Although it is settled that effect of the non-joining the independent witnesses is always examined in view of the facts and circumstances of each and every case and that too at the stage of final disposal of the case after an opportunity is given to the arresting officer to explain about not taking independent witness at the time of alleged recovery. Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In this case, considering the overall evidence and story of prosecution, the testimony of recovery witnesses could not be relied upon in absence of any independent public witness. Hence, it also makes the recovery of passports and visa stickers and rubber stamp doubtful.
In this case, PW-12, PW-13 and PW-14 have turned hostile and have not supported the case of prosecution. They have failed to identify the accused as to whom, money and their passport was given. As per prosecution story, accused Hasibur Rehman was named by accused Suleman Khan in his disclosure statement that Hasibur Rehman FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 19 of 24 used to defraud the persons from other states in the name of sending them to foreign on forged visa. These witnesses are important witness and as per story of prosecution, they have approached the accused Hasibur Rehman for Visa of Dubai and they have also handed over their passport and money, but this fact could not be proved by the prosecution as the witnesses have failed to identify the accused persons. There is not an iota of evidence to implicate accused Hasibur Rehman for the charges framed against him. Hence, the complete story of prosecution become highly doubtful and which consequently makes also, the recovery of passport, visa stickers, and rubber stamps from accused Suleman Khan also highly doubtful.
It is also important to note that there is no complainant in the present case who has filed the complaint against the accused persons that he has been cheated by the accused persons, as this case was filed on the basis of complaint by the HC Governor who got information from some secret informer, which has not been brought on record. Hence, it cannot be ruled out that there is possibility that these passports and other case property might have been planted upon accused persons. Also, since there is no public person who is the victim of cheating or the forgery, and there is nothing on record that accused Suleman Khan have tried to use the passports, but there is no evidence that he intended that same shall be fraudulently or dishonestly used as genuine, hence the prosecution has failed to prove that accused Suleman Khan have intention to fraudulently or dishonestly, use the alleged forged documents as genuine. Therefore, FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 20 of 24 prosecution has failed to bring home charge for the offence i.e., under Section 474 and Section 475 IPC.
As far as the allegation u/s 12 of Passports Act is concerned, the passports were allegedly recovered from the accused Suleman Khan and there is nothing on record that they are being used by the accused persons. Also, the passport holders have turned hostile and failed to identify the accused persons, hence the accused persons cannot be connected with the alleged recovery of the passport and their use. Hence, there is nothing on record to prove the allegations u/s 12 of Passport Act.
11. There are some weaknesses in the case of prosecution. Also, there are other infirmities and contradictions in the case of prosecution, coming to the testimony of PW- 3, the case property was brought in one paper pullanda to the court which were unsealed, as is revealed from the testimony of PW-3, in his examination in chief. In this case the chain of custody of case property is broken as case property was sent to Saudi Embassy by IO, but it is not clear as to in which condition case property was received by IO and was deposited in malkhana as case property was brought in court in unsealed condition. Hence, it affects the credibility of prosecution case.
Also, in the present case as per charge sheet, the seizure memo Ex. PW 3/B, Ex. PW3/C, Ex. PW3/D was prepared before the preparation of the tehrir/rukka and registration of FIR. However, the said documents would show that it bears on them the number of the FIR in same ink and handwriting. It shows a serious infirmity in the case FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 21 of 24 of the prosecution as either the number of the FIR was inserted later on or the documents were prepared before the time they have been shown to have been prepared. It is no- where mentioned by any one of witnesses that the number of FIR is written thereafter and if it could be the case of prosecution that FIR number is written after the registration of case, then these memos could have been bore the DD No. 19 A in pursuance of which IO reached the spot and seized all the articles. The same creates a reasonable doubt in the story of prosecution and benefit should go to the accused.
In this case, PW-3 has deposed that site plan was prepared at his instance by IO, but site plan is not on record, which could be fatal to the case of prosecution. Also, arrest memo of accused Suleman Khan does not depict the time of arrest. Hence these are defects in the investigation, benefit of which should go to the accused. Thus, considering the major contradictions as noted above, the case of the prosecution fails and it is clear that the offence alleged remain unproved.
12. In this case, prosecution has not been able to prove beyond reasonable doubt that visa stickers and stamps were forged or it has been recovered from the accused or the accused has intended to use them as genuine. Prosecution have failed to examine the concerned person from the Saudi embassy, as accused could not get the opportunity to examine the person who has given opinion that recovered articles were forged. Also, there is doubt on the recovery alleged by recovery witnesses as there is no independent public witness joined by the IO despite place of recovery being a public FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 22 of 24 place. The benefit of doubt should go to the accused as the story of prosecution is not reliable and free from doubts and as prosecution has to prove the case beyond reasonable doubt.
13. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from "may have" to "must have". It is also a settled principle that thought there may be an element of truth in the prosecution story against the accused but considered as a whole, there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, trustworthy and unimpeachable evidence before an accused can be convicted. This principle of law has been reiterated by the Hon'ble apex court in the following cases: Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W. Singh v. State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P, (2006) 10 SCC 172.
Despite the weakness in the defence case, prosecution has to stand on his own legs, it can't rely on the weakness of defence and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, on the basis of discussions aforesaid, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 23 of 24 of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Hence, applying the legal position stated in preceding paragraph, the charges u/s 474/475 IPC and Section 12 of Passports Act against the accused persons have not been proved.
CONCLUSION
14. In view of the aforesaid discussion, and keeping in view the facts and circumstances and the discussion made hereinabove, I am of considered view that prosecution has failed to prove its case against accused Suleman Khan and Hasibul Rehman beyond reasonable doubt, whereby the both the accused have become entitled to the benefit of doubt, accordingly, the accused Suleman Khan and Hasibul Rehman are hereby acquitted for the offence u/s 474/475 IPC and Section 12 of Passports Act.
This Judgment contains 24 pages, each page has been signed by the undersigned. Digitally signed by AJEET AJEET NARAYAN NARAYAN Date: 2023.07.18 10:29:00 +0530 Announced and dictated directly (AJEET NARAYAN) in the open court on 15.07.2023 MM-02/Shahdara/KKD Courts 15-07-2023 FIR No- 175/2002 State v Suleman Khan & Anr. Page No. 24 of 24