Delhi District Court
State vs . 1) Kobad Ghandy on 10 June, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0342582010
Sessions Case No. 96 of 2013
State vs. 1) Kobad Ghandy
Son of Late Sh. Adi Ghandy
Resident of : Care of Sunil Shanbag,
Armaan Building, 23, Saraswati Road,
Santacruz (West), Mumbai-400054.
(Presently in Judicial Custody)
2) Rajinder Kumar @ Arvind Joshi @
Sameer Atmaj Joshi
Son of Ghanshyam Fulara,
Resident of Post Office Chatgulla,
Police Station Dwarahaat
District Almora, Uttarakhand
(Presently in Judicial Custody)
FIR No. 58 of 2009
PS: Special Cell
U/s: 419/420/468/474/120B IPC
& 10/13/18/20 UAPA
Date of institution of the case : 26.07.2010
Date when the case reserved for judgment : 09.06.2016
Date of announcement of judgment : 10.06.2016
JUDGMENT
1. Kobad Ghandy and Rajinder Kumar @ Arvind Joshi @ Sameer Atmaj Joshi are facing trial in this Court for the following offences:-
(a) Kobad Ghandy and Rajinder Kumar @ Arvind Joshi are jointly charged for the offences punishable under Section 120B of the Indian Penal Code (IPC), Section 468 read with Section 120B of the IPC, 420 read with Section 120B of the IPC and Section 474 of the IPC;
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 1/66
(b) Kobad Ghandy is individually charged for the
offences under Sections 20 and 38 of the Unlawful Activities (Prevention), Act (UAPA) and Sections 419 and 471 of the IPC;
(c) Rajinder Kumar is separately charged for the offence punishable under Section 419 of the IPC.
2. The case set up by the prosecution as explained in the Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is that on 20.09.2009 at about 11:30am, a fax message was received by the Special Cell of Delhi Police from the office of Additional DGP Intelligence of Hyderabad, Andhra Pradesh stating that Kobad Ghandy under various aliases and a member of Communist Party of India (Maoist) [CPI (M)], a banned organization under the UAPA was moving around in Delhi and may be conducting reccee of targets in Delhi. A request was made by the Hyderabad Police to the Special Cell of Delhi Police to apprehend him. This information was marked to Sub Inspector (SI) Ravinder Kumar Tyagi of the Special Cell, Delhi Police for further action.
3. On the same day, i.e. on 20.9.2009 a police team of Hyderabad Police under the leadership of J. Amarinder Reddy at about 1pm apprehended Kobad Ghandy from a place near the MTNL Office, Bhikaji Cama Place, New Delhi. The Hyderabad Police produced Kobad Ghandy in the office of the Special Cell at Lodhi Road with his personal belongings which included an Electoral Photo Identity Card (EPIC) in the name of one Dalip Patel and medical prescriptions of Sita Ram Bhartiya Institute of Science and Research in the name of Narsi Patel.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 2/66
4. Kobad Ghandy on joint interrogation disclosed that he was an active member CPI (M) and was working as a member of Central Committee and Politburo of CPI (M) / CPI (ML) PWG. He disclosed that he was looking after the international department of Sub-Committee of Mass Organizations (SUCOMO), Central Publishing Bureau (CPB) and Incharge of South-Western Regional Bureau (SWRB) and for setting up a base in Delhi for Maoist (Naxalite) Activities.
5. It is further stated in the Police Report that from the information received from Intelligence Department of Andhra Pradesh Police and joint interrogation of Kobad Ghandy with Central Intelligence Agencies, it was found that Kobad Ghandy was a member of CPI (M). Rukka was prepared by SI Ravinder Kumar Joshi on the basis of the which the present FIR was registered and the investigation was assigned to Sanjeev Kumar Yadav, the then Additional Commissioner of Police (ACP) Special Cell of Delhi Police.
6. As per the Police Report, further interrogation of Kobad Ghandy revealed that he had remained underground for sometime and had been based in Delhi for three years. Kobad Ghandy was arrested and his disclosure statement recorded. The disclosure statement of Kobad Ghandy has been reproduced in toto in the Police Report and I am not referring to the same as it is a matter of record. Kobad Ghandy disclosed that he was residing in house no. 930 / G-40, Molar Band Extension Badarpur, Delhi along with Rajinder Kumar @ Arvind Joshi where he kept lot of literature, CDs, laptop, computer etc. related to his party.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 3/66
7. In pursuance of the disclosure statement of Kobad Ghandy, in the intervening night of 20/21.09.2009, a raid was conducted at the said address at Molar Band Extension Badarpur. A large number of books, CDs, DVDs, computer, CPU, pen-drives, laptop and other materials / articles related to Kobad Ghandy were recovered at his instance and seized. The owner of the house was associated with the proceedings. Kobad Ghandy was produced before the Court of Ld. Metropolitan Magistrate (MM) on 21.09.2009 and his police custody was granted but it is stated that Kobad Ghandy did not co-operate with the investigation. On 06.10.2009, further police custody remand of Kobad Ghandy was granted and he made another disclosure statement. This disclosure statement is again reproduced in the Police Report and the same is not referred to being a matter of record.
8. As per the Police Report, the material seized from the premises of Kobad Ghandy were analyzed. The same contained codes, e-mail IDs and telephone numbers related to CPI (M). E-mail IDs mentioned in the diaries were accessed with the use of password provided by Kobad Ghandy. The e-mails were studied and an analysis memo was prepared. Printouts of relevant e-mails were obtained. The same revealed that Kobad Ghandy was in touch with his other associates through e-mail. A detailed list of books seized was prepared. These books and literature related to communism / Maoist ideologies and were being used for motivating the people to join CPI (M). It is stated that Kobad Ghandy disclosed that he used to refer these books and material for preparation of his notes, articles etc. related to CPI (M).
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 4/66
9. The Police Report further states that the recovered diaries contained some papers in the handwriting of Rajinder Kumar @ Arvind Joshi, an associate of Kobad Ghandy who was residing with him in a rented accommodation at Molar Band, Badarpur, Delhi. Eight files / folders contained newspapers cuttings and documents pertaining to CPI (M) and information of CPI (M). The said recovered files / folders were found containing the personal collection i.e. documents, photographs etc. of Kobad Ghandy which were used by him in his notes and articles. The personal collection recovered are detailed in the police report. Out of the said recovered eight files / folders, two were related to Rajinder Kumar @ Arvind Joshi in which two medical papers of AIIMS in the name of Arvind Joshi were recovered.
10. The Police Report further states that the analysis memo of CDs / DVDs, floppies, pen-drives was prepared as per the disclosure statement of Kobad Ghandy and in his presence. The recovered CDs / DVDs, floppies, pen-drives relate to Maoist activities / programmes. One of the recovered CDs has video coverage of a visit of Kobad Ghandy to Nepal in June / July, 2006 to inaugurate a camp of People's Liberation Army (PLA) in Kathmandu, Nepal where Kobad Ghandy was welcomed by the Armed Wing of CPN (Maoist) Nepal. It is stated that Kobad Ghandy had disclosed that he had gone to Nepal to meet Prachanda, the Chief of Nepal Maoists and other leaders of PLA / Maoists in Nepal. Kobad Ghandy had identified other members of his outfit who were Vimal and Basanta, both Central Committee member of CPN (Maoist) and Vimal was seen in the clipping with Kobad Ghandy. The Police Report in detail lists the CDs / DVDs seized, material found in the pen- drives and the material found in the recovered floppies.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 5/66
11. The Police Report further stated that during investigation of the case, there was a strong reaction of CPI (M) in all over country to the arrest of Kobad Ghandy. The BBC released an interview of Kobad Ghandy recorded in the year 2008 when he was active in the area of Chattisgarh. In the said interview, Kobad Ghandy shared the ideology, strategies and planning of CPI (M). In that report, Kobad Ghandy was mentioned as a top Maoist leader in India. The Central Committee of CPI (M) on 24.09.2009 had given a press release under the signatures of Azad, its Spokesperson calling for an unconditional release of Kobad Ghandy and also declared a fight for his release. In the said press release, it was mentioned that Kobad Ghandy was a member of Politburo and a senior leader of CPI (M). In an Information Bulletin released on 07.10.2009 by CPI (M), the details of arrest of Kobad Ghandy were published and circulated. A strike was called in Maharashtra by CPI (M) on 01.10.2009 against the arrest of Kobad Ghandy. Bharat Bandh was called in other States on 03.10.2009 by CPI (M) protesting against arrest of Kobad Ghandy. Other instances of protest of CPI (M) against arrest of Kobad Ghandy are also listed in the Police Report. The Police Report states that these actions of CPI (M) revealed that Kobad Ghandy was the main pillar of the said banned organization and its think - tank.
12. It is further stated in the Police Report that Maoist Communist Centre of India and the Communist Party of India (Marxist - Leninist) (People's War) were merged to form a unified party i.e. CPI (Maoist) as per the press release of the said organization dated 14.10.2004. It is stated that Central Committee was the highest body of State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 6/66 the said organization as per Article 20 (Chapter 7) of the Constitution of CPI (M) and since Kobad Ghandy was a member of the Central Committee and Politburo, he was one of its main members in India.
13. The Police Report states that the information of arrest of Kobad Ghandy was sent to the concerned Authorities in India to provide information regarding his criminal involvements. Reports were received in this regard from Inspector General of Police, Special Branch, Jharkhand, Ranchi and Intelligence Department, Andhra Pradesh, Hyderabad. The record of the cases revealed in the said reports were obtained. One of the report of the Sub-Divisional Police Officer, Karim Nagar contained a confessional statement dated 01.01.2008 of one Malla Rajareddy @ Sethenna, one of the Central Committee and Politburo members of CPI (M) which refers to Kobad Ghandy. The statement of Malla Rajareddy @ Sethenna is reproduced in the Police Report.
14. The Police Report states that Kobad Ghandy had been arrested by the police of Karim Nagar Rural, Andhra Pradesh in which he confessed that he was a member of Central Committee and Politburo of CPI (M). Report in this regard was received from Superintendent of Police, District Adilabad, Andhra Pradesh which corroborated the report of the Intelligence Department of Andhra Pradesh regarding membership of Kobad Ghandy of CPI (M). The Police Report lists cases registered by District Adilabad, Andhra Pradesh and also in Maharashtra.
15. The Police Report further states that investigations were State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 7/66 conducted at Sitaram Bharitya institute of Science and Research at Qutab Institutional Area, New Delhi regarding the medical prescriptions and reports recovered from the possession of Kobad Ghandy. The doctors who had examined and treated Kobad Ghandy between 2007 to 2009 stated that he had received treatment in the name of Narsi Patel.
16. The Police Report further stated that the EPIC recovered from Kobad Ghandy in the name of Dilip Patel was verified from of office of Assistant Electoral Registration Officer (AERO), Janakpuri, Delhi which reported that the said Identity Card was issued to Kobad Ghandy on the basis of documents submitted which included photocopy of PAN Card No APEPB6040J in the name of Dilip Patel and copy of electricity and water bills. Verification of the said PAN Card from the Income Tax Department revealed that the serial number of the said PAN Card did not exist in their PAN database but the details of the PAN Card holder by the name Dilip Patel matched with PAN Card of another number namely AWYPP5438P. Verification of PAN Card no. AWYPP5438P revealed that the same in fact had been issued in the name of Dilip Patel on which photograph of Kobad Ghandy at the address Second Floor, Possangi Pur, House No. WZ-44G, New Delhi was found. Further verification of PAN Card no.AWYPP5438P revealed that the applicant of the said PAN Card had submitted copy of a bank statement of AXIS Bank, Malviya Nagar, Delhi for an account in the name of Dilip Patel, a resident of Possangi Pur. Verification of the bank account with AXIS Bank, Malviya Nagar revealed that the said bank account number was fake as the said bank account was not in the name of Dilip Patel but was in the name of some other person. These identity proofs were thus fake.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 8/66
17. The records of AERO Janakpuri revealed that another EPIC was issued in the name of Sameer Atmaj Joshi on the same address. The records of the said EPIC were obtained as per which Sameer Atmaj Joshi had submitted a copy of PAN Card no. AJEPJ6040J as a proof of his identity and residential address on the basis of which Electoral Photo Identity Card was issued to him. Verification of said PAN Card number from the Income Tax revealed that it had been issued on the basis of a identity proof i.e. monthly statement and credit card of GE Money in the name of Sameer Atmaj Joshi, resident of CE-1 & 2nd floor, Hari Nagar, New Delhi. Upon investigation the credit card of GE Money was found to be fake. The photograph on the PAN Card no. AJEPJ6040J in the name of Sameer Atmaj Joshi was found to be of Rajinder Kumar who used to reside with Kobad Ghandy at Molar Band Extension, Badarpur, Delhi. The handwriting on the application form for issuance of Electoral I Card / PAN Card of Kobad Ghandy and Sameer Atmaj Joshi was found to be similar to those on the recovered diaries found at the instance of Kobad Ghandy. The digits '6040J' on the forged PAN Card number APEPB6040J of Dilip Patel and PAN Card no AJEPJ6040J of Sameer Atmaj Joshi were same.
18. The Police Report states that Kobad Ghandy did not co- operate with the investigation and an application had been moved before the Ld. CMM, Delhi for permission to conduct his Narco Analysis test. The same was objected to by counsel for Kobad Ghandy on account of his bad health. A panel of doctors of AIIMS examined Kobad Ghandy on the orders of the Ld. Court and found him to be fit to undergo Narco Analysis test. By order dated 31.10.2009, permission State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 9/66 was granted to conduct Narco Analysis test of Kobad Ghandy but the said order was challenged before the Hon'ble High Court in which a stay was granted and matter was still pending in the Hon'ble High Court.
19. Subsequently it came to light that Rajinder Kumar @ Arvind Joshi had been arrested in FIR No. 30 of 2010 dated 08.02.2010, PS Kidwai Nagar, Kanpur, Uttar Pradesh (U.P.) by the Special Task Force of U.P. Police. He accused revealed his name as Rajinder Kumar Fulara. He was produced in the Court of Ld. CMM, Delhi by Kanpur Police upon issuance of production warrants. He was formally arrested and his police custody was granted. He was interrogated and he gave a disclosure statement which is reproduced in the Police Report. The same is not referred to in detail, being a matter of record.
20. Amongst others, Rajinder Kumar @ Arvind Joshi disclosed that he came across Kobad Ghandy who asked him to publish work for CPI (M). He disclosed that he used to reside in a rented accommodation at Molar Band Extension, Badarpur and then took a room at Jeewan Park, Janakpuri where Kobad Ghandy used to visit him and also resided with him for 2-3 days. He then took another room at Gali No. 40D- 930/40 Molar Band Extension, Badarpur where he resided till arrest of Kobad Ghandy. He had prepared fake identity documents in the name of Sameer Atmaj Joshi with the help of electricity bills which he had stolen from the room of Prem Bhandari, his friend and who was also younger brother of his college friend Puran Bhandari. He disclosed that he had forged the signatures of Ramesh Sharma, the house owner and got a voter identity card of Kobad Ghandy prepared in the fake name of Dilip Patel. He also prepared a PAN Card in the name of Sameer Atmaj State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 10/66 Joshi and stolen GE Money card from the room of Prem Bhandari. He used the same to procure PAN Cards.
21. Investigation revealed that Rajinder Kumar @ Arvind Joshi had opened a savings bank account on 06.11.2008 in State Bank of India (SBI), Janakpuri, Delhi with the fake name of Sameer Atmaj Joshi having address at WZ-44G, Possangi Pur, Janakpuri, Delhi. Verification from the SBI bank revealed that the accused had used EPIC no. BVK0929687 in the name of Sameer Atmaj Joshi. Mukesh Kumar, resident of WZ-58, Possangi Pur, Janakpuri, Delhi, a friend of the accused had introduced him while opening the said bank account. Mukesh Kumar upon questioning stated that he knew Rajinder Kumar in the name of Sameer Atmaj Joshi and had introduced him in SBI to open a bank account. Specimen handwriting of the accused were obtained and documents recovered at the time of apprehension of Kobad Ghandy were sent to FSL for opinion. Records of previous involvements of the accused were obtained from the office of Superintendent of Police, Almora, Uttrakhand and Kanpur U.P. Record of AXIS Bank account no. 206010100045155 used for opening PAN Card in the name of Dilip Patel were verified and found to be existing in the name of one Uma Rawat who was receiving her salary in the said account. She upon questioning stated that she did not know Kobad Ghandy. The police report further states that Kobad Ghandy during interrogation disclosed names of other organizations which were front organizations of CPI (M).
22. The report of the CFSL CBI was filed with a supplementary charge-sheet regarding questioned handwritings and sample writings of Rajinder Kumar @ Arvind Joshi. As per the said report, certain State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 11/66 questioned writings matched with the specimen signature and handwriting of Rajinder Kumar @ Arvind Joshi.
23. By order dated 16.07.2012, charges as above were framed against the accused persons to which they pleaded not guilty and claimed trial. In all the prosecution has examined a total of 37 witnesses during the course of the trial. Their material particulars are tabulated as under:-
SRL. NO. NAME RELEVANCE
PW1 ASI Surjeet He is the Duty Officer of PS Special Cell
Singh who registered the FIR Ex.PW1/A on the
basis of the rukka sent by SI Ravinder
Kumar Tyagi.
PW2 J. Amarender He was part of the Hyderabad Police
Reddy, DSP which had apprehended Kobad Ghandy
Intelligence, on 20.09.2009 and had brought him to the
Hyderabad office of Special Cell Delhi Police.
Police
PW3 Amba Dutt He is the owner of House No. 930/D-40,
Sharma Molbarband Extension Badarpur Delhi in
which Rajinder Kumar was a tenant and
from where the Special Cell of Delhi Police
had recovered several documents, CDs,
Pen-drives etc. on the pointing out of
Kobad Ghandy on 20.09.2009.
PW4 A.K. Gulati, He had on the request of the IO given
AERO, verification report regarding Voter ID Card
Janakpuri, No. BVK0931188.
Delhi
PW5 Neeraj Kumar He had on the request of the IO provided
Additional information regarding PAN Card numbers
Commissioner AWYPP5438P and AJEPJ6040J.
of Income Tax
PW6 Kapil Kapoor He had on the request of the Income Tax
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 12/66
Vice President Department provided information
NSDL regarding Card number AWYPP5438P to
IO.
PW7 Satpal Gulati He had on the request of the IO provided
Additional information regarding PAN Number
Commissioner APEPB6040J.
Income Tax
PW8 SI D.V.S. Raju He was part of the Hyderabad Police
Hyderabad which had apprehended Kobad Ghandy
Police on 20.09.2009 and had brought him to the
office of Special Cell Delhi Police.
PW9 J.R. Meena He had on the request of the IO provided
AERO information regarding Voter List.
Janakpuri,
Delhi
PW10 S.N. Pradhan He had sent information to the IO vide
IGP Special letter dated 07.01.2010 Ex.PW10/A about
Branch accused Kobad Ghandy.
Jharkhand
PW11 Dr.Jitender He had treated Kobad Ghandy under the
Nath Pandey assumed name of Narsi Patel at Sita Ram
Bhartiya Institute of Science and
Research.
PW12 Hiten Mehta He had on the request of the Income Tax
Vice President Department provided certain records and NSDL details of PAN No. AJEPJ6040J to the IO.
PW13 D.V. Srinivas He had proved the copy of FIR No.1 of Rao, Additional 2008, PS Karim Nagar Rural, Andhra SP Andhra Pradesh and its translated copy vide Pradesh Ex.PW13/A and Ex.PW13/B respectively.
PW14 Sanjeet Kumar He produced the records of account
Assistant opening form and statement of accounts
Manager number 206010100045155 in the name of
AXIS bank Uma Rawat vide Ex.PW14/A and
Malviya Nagar Ex.PW14/B respectively.
PW15 Har Devender He proved FIR No. 57 of 2010, PS Rural
Singh Patiala Punjab.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 13/66
DSP
PW16 SI Dilip Kumar He was posted in PS Special Cell and was
with the IO during the investigation on
20.09.09, 07.10.09, 08.10.09, 13.10.09,
14.10.09, 15.10.09, 03.12.09, 17.12.09,
19.03.10, 22-25.03.10, 24.03.10 and
26.03.10.
PW17 Dr. S.V. Kotwal He had provided medical record of Kobad
Ghandy who as per him had received
treatment in the name of Narsi Patel at
Sita Ram Bhartiya Institute of Science and
Research.
PW18 SI Ravinder He had prepared the rukka Ex.PW18/A on
Kumar Tyagi the basis of which FIR was registered in this case.
PW19 Aslam Khan He was the landlord of Rajinder Kumar @ Arvind Joshi at 2994-Gali No.70, Block E-
2, Molar Band Extension, Badarpur Delhi.
PW20 Ajay Chagti He had on 23.03.2012 issued the formal
Secretary order granting sanction from prosecution
GNCT of Delhi under Section 45 (2) of UAPA vide
Ex.PW20/A.
PW21 Vineet Brijlal He produced the attested records of FIR
Andhra Police No. 17 of 2008, PS GK Virdhi,
Vishakhapatnam, Andhra Pradesh.
PW22 Dr.Kashmir He in the capacity of Joint Secretary
Singh Ministry of Home had issued the
Notification dated 22.06.2009 Ex.PW22/A
vide which CPI (Maoist) was declared as
banned terrorist organization under the
UAPA.
PW23 P. Pramod He had vide his letter Ex.PW23/A sent
Kumar from copies of four FIRs in which Kobad
Andhra Ghandy was an accused.
Pradesh
PW24 Ashish Kumar He proved the sanction order Ex.PW24/A
Deputy dated 10.02.2010 under Section 45 (2) of
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 14/66
Secretary, LG the UAPA.
Secreteriate
PW25 D. Ramesh He proved letters Ex.PW25/A and
DSP Telangana Ex.PW25/B of B. Shivadhar Reddy, IGP Police Intelligence Telangana.
PW26 P.T. Patil DCP He proved his letter Ex.PW26/A about
Maharashtra involvement of Kobad Ghandy in three
Police cases.
PW27 Rajnikant He proved his fax message Ex.PW27/A
Mishra vide which he communicated
U.P. Police apprehension of Rajinder Kumar to State
Police Heads.
PW28 Karan Singh He proved a letter of SP Almorah
Uttrakhand Ex.PW28/A.
Police
PW29 Sameer He deposed about a recovery memo in
Saurabh FIR No. 30 of 2010, PS Kidwai Nagar,
U.P. Police Kanpur, U.P. about recovery of laptop
computer etc. at the instance of Rajinder
Kumar
PW30 Sayed Eshak He deposed about the records of FIR No.
Andhra Police 17 of 2008, PS GK Virdhi,
Vishakhapatnam, Andhra Pradesh.
PW31 Om Prakash He produced the records of account no.
Manager SBI 30556623815 in the name of Sameer
Janak Puri Atmaj Joshi.
PW32 Devinder Singh He is owner and landlord of D-1/13,
Jeevan Park Pankha Road, New Delhi
which he had let out to Rajinder Kumar @
Arvind Joshi and had also identified Kobad
Ghandy as the person who had visited and
resided there.
PW33 Prem Raj He was residing at WZ-44G, Possangi Pur
Bhandhari Janakpuri, Delhi and had got Voter
Election Identity Card of Rajinder Kumar
issued at his address. He had also
requested Mukesh Kumar to stand as
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 15/66
introducer for Rajinder Kumar for opening
a bank account in SBI Janakpuri.
PW34 Ramesh He is the owner of WZ-44G, Possangi Pur
Sharma Janakpuri, Delhi and landlord of PW33
Prem Raj Bhandari. His electricity bill copy
had been used by Rajinder Kumar in
procuring other documents.
PW34 Dr. Jiju P.V. He as a Handwriting Expert had examined
SSO FSL certain documents and specimen
Rohini handwriting of Rajinder Kumar and had
given his report Ex.PW34/A.
PW35 DCP Bhishm He has partly investigated this case.
Singh
PW36 Mukesh Kumar He is a friend of Prem Raj Bhandari PW33
and had met Rajinder Kumar who used to
visit PW33 and had stood as his introducer
for opening of bank account in SBI.
PW37 DCP Sanjeev He is the IO of this case.
Kumar Yadav
24. PW35 was cross examined and discharged on
04.11.2015. Prosecution evidence was closed and matter was recording for evidence of the accused persons under Section 313 of the Cr.P.C. for 17.11.2015.
25. On 17.11.2015, an application was moved under Section 311 of the Cr.P.C. by the State to examine ACP Ravi Shanker who had effected the formal arrest of Rajinder Kumar who has been produced in the CMM, New Delhi from Kanpur Jail. The counsel for Rajinder Kumar admitted the arrest memo, personal search memo and production warrants under Section 294 of the Cr.P.C. which were exhibited as Ex.PX1, Ex.PX2 and Ex.PX3 respectively. In view of the admission, State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 16/66 there was no requirement to examine ACP Ravi Shanker as a witness to prove the said facts and documents.
26. The matter was again fixed for recording of statements of both the accused persons under Section 313 of the Cr.P.C. on 11.12.2015. On that date, Ld. Addl. PP moved an application under Section 311 of the Cr.P.C. to place on record certificates under Section 65B of the Indian Evidence Act and to recall and re-examine PW35 and PW37 for this purpose. The said application was opposed by the accused persons but was allowed by this Court by order dated 06.01.2016. Accordingly, PW35 and PW37 were re-examined and certificates under Section 65B of the Indian Evidence Act under their signatures were taken on record. Thereafter, statements of both the accused persons were recorded under Section 313 of the Cr.P.C. wherein they denied all the incriminating evidence put to them. They however did not wish to lead evidence in defence.
27. Arguments were addressed by the Ld. Addl. PP for the State, Ms. Rebeca John, Sr. Advocate on behalf of accused Kobad Ghandy and by Ms. Priyanka Kakkar on behalf of accused Rajinder Kumar. Ld. Addl. PP for the State had argued that there was sufficient material on record warranting conviction of the accused persons for the charges which have been framed against them. He submitted that the evidence led has established that Kobad Ghandy was residing in Delhi in assumed names and fake identities. These fake identities had been arranged for him by Rajinder Kumar, who also was using fake names and identities. A lot of material was recovered at the instance of Kobad Ghandy which establishes that he was a core member of the CPI State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 17/66 (Maoist) which is a banned terrorist organization. The material
recovered also proves that Kobad Ghandy was not only a member of the said organization but was actively participating and promoting the illegal designs of the said banned organization.
28. Ms. Rebecca John, Sr. Advocate, assisted by Mr. Bhavook Chauhan, advocate argued that the recoveries shown to have been made on the pointing out and at the instance of Kobad Ghandy were planted. She submitted that the claim of the prosecution that Kobad Ghandy was apprehended by the members of a police team of Hyderabad, Andhra Pradesh at Bhikaji Cama Place was absolutely false which was evident from the inconsistencies in the version of the relevant witnesses. She submitted that there was no recovery made at the instance of Kobad Ghandy which is clear from the testimony of PW3 Amba Dutt Sharma. The time and place of recovery stated by PW3 does not all tally with the claims of the prosecution. There has been manipulation of the documents of title of PW3 from which it is evident that there is manipulation of the record of the address of the premises from which the recoveries are claimed to have been made. It was further submitted that as per PW 3 Kobad Ghandy had opened the premises with a key of the room which he was carrying when he was brought by the Special Cell. It was submitted that apart from PW 3 no other witness has stated anything about any key being in possession of the accused. None of the memos including personal search memo pertaining to Kobad Ghandy record any fact about any key being in his possession. In this regard the Court was taken through the testimonies of PW2, PW3, PW16, PW18 and PW37.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 18/66
29. Ms. Rebecca John, Sr. Advocate argued that the Schedule of the UAPA was amended vide notification dated 22.06.2009 and the name of CPI (Maoist) was inserted in the schedule. It was submitted that as per the said notification there was a merger of CPI (ML) and MCC in the year 2004 which gave rise to CPI (Maoist). It was submitted that the case of the prosecution was that Kobad Ghandy was a member of the banned organization CPI (Maoist) but the charge which had been framed was for membership of not only CPI (Maoist) but also for MCC and CPI (ML). It was submitted that in criminal law each allegation against an accused is required to be proved by adducing evidence. It was submitted that there was no evidence adduced by the prosecution witnesses for the charge of Kobad Ghandy being member of MCC and CPI (ML). None of the prosecution witnesses deposed anything about Kobad Ghandy being a member of MCC and CPI (ML). It was submitted that they had only deposed that Kobad Ghandy was a member of CPI (Maoist). It was submitted that no evidence was led to prove that there was any merger of CPI (ML) and MCC in the year 2004 out of which CPI (Maoist) was formed.
30. It was submitted that CPI (Maoist) had been outlawed on 22.06.2009. None of the material alleged to have been recovered at the instance of Kobad Ghandy pertained to any period after 22.6.2009. All the material claimed to have been recovered were prior to 22.6.2009. Thus, even if the recoveries of the said material were to be true, the same did not reflect that Kobad Ghandy became a member or continued to be a member of CPI (Maoist) after 22.06.2009. It was further submitted that as per the notification dated 22.06.2009, CPI (Maoist) came into being in the year 2004 but the same was issued only State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 19/66 in the year 2009 and the benefit of this delay has to go to the accused.
31. It was submitted by Ms. Rebecca John, Sr. Advocate that heavy reliance was placed by the prosecution on digital storage devices such as CDs, DVDs, pen drives and hard drives stated to have been recovered at the instance of accused Kobad Ghandy. It was submitted that the prosecution had prepared an analysis memo after purportedly studying the contents of these media to submit that it was Kobad Ghandy and his voice which was there in them. It was submitted that none of these media / devices were sent for forensic examination to any forensic sciences laboratory to verify the genuineness and authenticity of their contents. No photograph or voice sample of Kobad Ghandy was obtained and sent to any forensic sciences laboratory to establish that the voice / video footage contained in the said media was that of Kobad Ghandy. It was submitted that the prosecution witnesses had admitted that none of these devices were sealed when they were recovered and there was no compliance of the Punjab Police Rules (PPR) applicable to Delhi which mandate that recovered case property must be sealed. This was to ensure that there could be no possibility of tampering case property and to maintain fairness of investigation.
32. It was submitted that PW10 S.N. Pradhan had been examined as a witness to prove his communication to the Special Cell of Delhi Police to the effect that one Francis Enduwar had been kidnapped demanding release of Kobad Ghandy. It was submitted that the said communication was based on unverified newspaper reports of the abduction which cannot be said to be evidence of that fact. FIRs involving Kobad Ghandy had been placed on record to prove that he State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 20/66 was a member of CPI (Maoist) but the contents of an FIR cannot be considered to be evidence of such an allegation. It was further submitted that the authors of the said FIRs had not been examined and the copies of the FIR placed on record were inadmissible in evidence. It was settled law that mere marking of a document as an exhibit does not among to proving the said document.
33. Ms. Rebecca John, Sr. Advocate then argued that Section 20 of the UAPA makes punishable membership of a terrorist organization "which is involved in terrorist act". A terrorist Act was defined under section 15 of the UAPA. She submitted that there was no evidence produced on record to prove that CPI (Maoist) had been involved in any terrorist act within the meaning of Section 15 of the UAPA. She further submitted that the witnesses have only testified that Kobad Ghandy was a member of the CPI (Maoist). She further submitted that there was no evidence on record to show that he had advocated any Terrorist Act on behalf of CPI (Maoist). She then submitted that the additional charge against Kobad Ghandy was under
section 38 of the UAPA. She relied on the proviso to section 38 (1) which lays down that section 38 (1) would not apply where the person charged was able to prove that the organization was not declared as terrorist organization when he became member of the same. There was no evidence on record to show that he had advocated any Terrorist Act on behalf of CPI (Moist). She then submitted that the additional charge against Kobad Gandhy was under section 38 of the UAPA. She relied on the proviso to section 38 (1) would not apply where the person charged was able to prove that the organization was not declared as terrorist organization when he became its member and that he had not State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 21/66 taken part in the activities of the organization at any time during its inclusion in the schedule as a terrorist organization.
34. Ms. Rebecca John, Sr. Advocate submitted that the sanction under section 45 (2) of the UAPA for prosecution of Kobad Gandhy for offence under section UAPA was illegal. She relied on the order dated 28.03.2012 passed by the Court of Sh. Pawan Kumar Jain in which he had observed that the first Sanction Order was illegal and that the second Sanction Order dated 28.03.2012 could not cure the defect which was there in the earlier Sanction Order. She submitted that the record of this case made it evidence that there was no application of mind and there could not have been any application of mind before granting the Sanction Order under section 45 (2) of the UAPA as there was absolutely no time given to the sanctioning authority to consider any material. In the absence of any valid sanction order the prosecution of Kobad Gandhy for the offences under the UAPA fall through.
35. It was further argued that apart from the offences under the UAPA, the accused Kobad Ghandy was also charged with the offences under Section 120B IPC, Sections 468, 420 both read with Section 120B of the IPC, section 474 of the IPC and sections 419 and 471 of the IPC. It was submitted that the basic allegations for these offences were that Kobad Ghandy was residing in Delhi in an assumed name, had taken treatment under an assumed name and had forged and fabricated an election identity card and PAN card in conspiracy with co-accused Rajinder Kumar. It was submitted that the prosecution had claimed that it had recovered a forged election identity card from Kobad State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 22/66 Ghandy in the name of Dalip Patel and that this document was issued on the basis of an electricity bill with the forged signatures of Ramesh Sharma. It was submitted that as per the report of PW34, the questioned handwritings / signatures on the election identity card application form did not match with that of Rajinder Kumar. There is no document which bears any handwriting / signatures of Kobad Ghandy.
The electricity bill submitted with the application form for the election identity card had two questioned handwritings, one of which has matched with Rajinder Kumar. It was submitted that the electricity bill was a manipulated document and could not be relied upon. There was no evidence on record to prove that any of the documents had actually been forged by Kobad Ghandy. There was no evidence to the effect that any of the alleged forged documents were used in any manner by Kobad Ghandy.
36. In addition to oral submissions, written submissions were filed on behalf of Kobad Ghandy. Reliance was placed upon several case law.
37. On behalf of Rajinder Kumar, Ms. Priyanka Kakkar, Advocate has argued that the case of the prosecution qua this accused rested on the report of PW34. She submitted that as per the case of the prosecution, specimen signatures of Rajinder Kumar were taken by Insp. Kailash Bisht which were then sent with the questioned documents for examination to PW34. She submitted that Insp. Kailash Bisht was not examined as a witness. The specimen handwritings / signatures even though bearing the name of DCP Bisham Singh PW35 were not signed by him. PW35 himself has stated in cross examination State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 23/66 that he was not present when the signatures and handwritings were taken. In these circumstances, the taking of specimen signatures had not been proved. She further submitted that the electricity bills allegedly bearing the notings were not found to be in the handwriting of Rajinder Kumar. She further submitted that the specimen signatures of Ramesh Sharma were stated to have matched with the questioned signatures of Rajinder Kumar but the specimen signatures had not been taken with the permission of the Court. The specimen signatures of Ramesh Sharma were taken in the police station and there cannot be any sanctity attached to the same. It was submitted that the prosecution had therefore failed to prove that any of the alleged forged documents had the signatures / handwritings of Rajinder Kumar.
38. I have heard the Ld. counsel for the accused persons and the Ld. Addl. PP for the State. My findings are as under:-
APPREHENSION OF KOBAD GHANDY ON 20.09.2009 BY A POLICE TEAM OF HYDERABAD POLICE AT BHIKAJI CAMA PLACE, DELHI
39. As per case of the prosecution, a team of Hyderabad Police had apprehended Kobad Ghandy from Bhikaji Cama Place in the afternoon of 20.09.2009. They had found Kobad Ghandy in possession of an Electoral Photo Identity Card (EPIC) in the name of Dilip Patel and medical treatment papers of Sitaram Bhartiya Institute in the name of Dilip Patel and Narsi Patel.
40. The witnesses examined in this respect re PW2 and PW8. PW8 has stated that he had reached Delhi on 18.09.2009 with SI Srinivasa Rao and SI P. Prasad on the instructions of Senior Officers.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 24/66 They were told that the purpose of their visit would be revealed to them later on. He stated that on 20.09.2009 SI Srinivasa Rao was informed by a Senior Police Officer to go to Bhikaji Cama Place between 12:30pm to 12:45pm. Even then the purpose had not been disclosed to them. They reached Bhikaji Cama Place at 12:45pm and met DSP J. Amarinder Reddy and a secret informer. After sometime, the secret informer pointed out towards a tall person who upon apprehension disclosed his name as Kobad Ghandy. The informer thereafter left the spot. PW8 has further stated DSP J. Amarinder Reddy asked the said person to disclose his identity but he refused to do so. Then DSP J. Amarinder Reddy contacted Senior Officers of Hyderabad Police and after talking with them, DSP J. Amarinder Reddy asked them to take Kobad Ghandy to the office of the Special Cell of Delhi Police at Lodhi Road.
41. In cross examination PW8 has stated that he had reached Delhi on the oral instructions of his DSP and did not make any departure entry before leaving for Delhi. After reaching Delhi, they did not inform the local police. He had seen DSP J. Amarinder Reddy and the informer and that DSP J. Amarinder Reddy had come along with secret informer. He stated that it was DSP J. Amarinder Reddy who introduced them to the informer. He did not know whether any public persons were asked to join the proceedings at the Bikhaji Cama Place. No arrest memo with respect to Kobad Ghandy was prepared. He could not state as to who had directed DSP J. Amarinder Reddy to take Kobad Ghandy to the office of Special Cell. At that stage, attention of PW8 was drawn to Ex.PW2/A and after seeing it PW8 stated that the said memo was prepared in his presence and as per the same the State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 25/66 documents recovered from Kobad Ghandy were handed over to the Special Cell.
42. PW2 J. Amarinder Reddy has stated that on 20.09.2009, he reached Delhi and another team of Hyderabad Police was already present in Delhi. He stated that he met the police team at Bikhaji Cama Place at 12:45pm. They had come to Delhi on the directions of Senior Police Officers as they had been informed that Kobad Ghandy an active member of CPI (Maoist) was in Delhi. He also had the order of the Additional Director General of Police, Intelligence Department Hyderabad which he produced and same was marked as Mark A. He stated that the police team was also accompanied with a secret informer who at 1pm pointed out accused Kobad Ghandy after which he was apprehended. He stated that Kobad Ghandy had medical papers in the name of Dilip Patel and Narsi Patel and voter identity card in the name of Dilip Patel. On the directions of Senior Police Officers, Kobad Ghandy was taken to the office of Special Cell Delhi Police and handed over to SI Ravinder Kumar Tyagi along with recovered documents vide handing over memo Ex.PW2/A. He further stated that on interrogation, he disclosed his name as Kobad Ghandy and was arrested vide memo Ex.PW2/A. He was interrogated in detail and he gave a disclosure statement which was recorded vide Ex.PW2/E. In cross examination PW2 stated that he had gone to MTNL, Bikhaji Cama Place and he had come to know about secret informer only when he reached Bikhaji Cama Place and joined the police team. He stated that no public person was asked to join the proceedings at the time of apprehension of the accused and no memo of arrest was prepared. He stated that ACP Sanjeev Kumar Yadav started recording the disclosure statement of State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 26/66 Kobad Ghandy at 2:30pm on 20.09.2009. PW2 immediately deposed that the same was recorded on 21.09.2009 at about 9 am by ACP Sanjeev Kumar Yadav who took two hours to record it. He stated that he left the office of Special Cell on 21.09.2009 at about 2:30pm after having lunch with ACP Sanjeev Kumar Yadav and that his statement was also recorded in the office of Special Cell on 21.09.2009 in the morning at about 6:30am.
43. As recorded above only PW2 and PW8 are the witnesses examined in respect of apprehension of Kobad Ghandy. From the testimonies of PW2 and PW8 it is clear that absolutely no attempt was made to join any public person in the apprehension of Kobad Ghandy at Bhikaji Cama Pace. There are contradictions, minor but vital in the testimonies of PW2 and PW8. Both have stated that it was the secret informer who had identified Kobad Ghandy at Bikhaji Cama Place and upon his identification Hyderabad Police was able to apprehend him. PW8 stated that he and other officials had reached Bikhaji Cama Place at 12:45pm where they met DSP J. Amarender Reddy (PW2) and one secret informer. PW8 in cross examination stated that DSP J. Amarender Reddy had come along with informer. Thus as per the testimony of PW8 the informer had come with DSP J. Amarender Reddy.
44. However PW2 DSP J. Amarender Reddy has stated that he had reached Bikhaji Cama Place at 12:45pm where he met other team of Hyderabad Police which was accompanied with the secret informer. In cross examination PW2 stated that he had come to know about the secret informer only when he reached Bikhaji Cama Place State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 27/66 and joined other police team of Hyderabad Police.
45. As recorded above, the said contradiction though minor is vital. This is for the reason that it was the informer who had pointed out and identified Kobad Ghandy to the team of Hyderabad Police. PW2 has stated that the informer came with PW8 while PW8 has stated that the informer had come with PW2. As there is no certainty as to with whom the informer had come, pointing out of Kobad Ghandy at the instance of secret informer seems to be highly doubtful. With no attempt having been made to join any public persons with the proceedings of the police team, the apprehension of Kobad Ghandy from Bikhaji Cama Place has not been proved beyond reasonable doubt.
RECOVERY OF WRITTEN MATERIAL & DIGITAL STORAGE MEDIA AT THE INSTANCE OF KOBAD GHANDY FROM THE PREMISES OF AMBA DUTT SHARMA (PW3) AT 930/D-40, Molar Band EXTENSION, BADARPUR, DELHI IN THE INTERVENING NIGHT OF 20/21.09.2009
46. As per case of the prosecution, Kobad Ghandy after apprehension and giving a disclosure statement led the police team of the Special Cell to 930/D-40, Molar Band Extension, Badarpur, Delhi and on his pointing out recoveries of incriminating literature, CDs, DVDs and other digital storage devices were effected which material established that Kobad Ghandy was a member of CPI (Maoist). It was claimed that the said recoveries had been made in the intervening night of 20/21.09.2009.
47. The witnesses relevant to these facts are PW3 Amba Dutt Sharma, owner of the said house, PW16 SI Dilip Kumar and PW37 DCP State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 28/66 Sanjeev Kumar Yadav. PW37 DCP Sanjeev Kumar Yadav has stated that in the intervening night of 20/21.09.2009, they had gone to the said house at Molar Band Extension, Badarpur, Delhi at the instance of Kobad Ghandy and a large number of books, CDs, DVDs etc. were recovered and the same were seized vide seizure memo Ex.PW3/A. PW16 in examination in chief has stated that Kobad Ghandy led the police team to the house no. 930/G-40, Molar Band Extension, Badarpur, Delhi.
48. Ex.PW3/A is the seizure memo regarding the articles recovered at the instance of Kobad Ghandy. Serial no.2 of the same mentions the date and time of seizure as '21.09.2009 at 3am' and the place of seizure at serial no.3 is mentioned as 'from rented room at 930/D-40, Molad Band Extn. Badarpur, Delhi'. In the column of 'particulars of the sealed articles, it is recorded as 'nil' with the note that articles were kept for the purposes of examination and analysis. Particulars of the witness is mentioned as 'Amba Dutt Sharma, son of Late Leela Dhar Sharma, r/o 930/D-40, Molad Band Extn. Badarpur, Delhi'. Particulars of accuses as 'Kobad Gandhi @ Salim @ Arvind @ Katif Ansari @ Kamal @ Rajan @ Kishore son of Adi Gandhi, r/o. 930/G-40, Molad Band, Badarpur, Delhi'. There is a note appended to the bottom which records that certain articles were being kept deposited in the Malkhana and the remaining were kept with the case file for further investigation.
49. This recovery was witnessed by Amba Dutt Sharma PW3. In his examination in chief, PW3 has stated that he is owner of house no.930/D-40, Molar Band Extension, Badarpur, Delhi and the officials of State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 29/66 Special Cell visited his premises with Kobad Ghandy on 20.09.2009. He stated that Kobad Ghandy was the person who used to visit Arvind Joshi and also used to stay with him. He stated that at that time, the accused Kobad Ghandy had the key of the room of Arvind Joshi and the room was opened with the said key. The police had recovered certain articles and seized the same and made an inventory Ex.PW3/A on which he signed. He also handed over documents of title of his property Ex.PW3/B which were seized by the police. He could not recollect all the articles recovered but stated that they were comprising of CDs, books, CPU, Laptop without hard disk, two diaries etc.
50. In cross examination PW3 stated that the officials of Special Cell had visited his premises between 6pm to 7pm and stayed there for about 30-45 minutes. He stated that the police had recorded his statement in February, 2010 in the office of Special Cell, Lodhi Road. The police had not played any audio or video CD in his presence. He did not know whether the police had prepared any document pertaining to the key by which Kobad Ghandy opened the room of Arvind Joshi in his presence.
51. The testimony of PW3 raises serious questions regarding the Kobad Ghandy leading the police team to the premises of PW3 and the recovery of articles from the said premises. The reason for this inference is that while the clear cut case of the prosecution was that the accused Kobad Ghandy led the police team to the premises of PW3 in the intervening night of 20/21.09.2009 and as per the seizure memo Ext.PW3/A the date and time of the same was 21.09.2009 at 3am. However, PW3 has stated that they had come to his premises on State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 30/66 20.09.2009 between 6pm to 7pm. There cannot be scope of any confusion in the mind of PW3 regarding the date and time of the recoveries for the reason that if any recovery had been made at midnight culminating at 3am surely, PW3 would have recalled the unearthly hour in which the police had come to his home. This is not so.
52. As per the prosecution Kobad Ghandy gave a disclosure statement and in pursuance of the same, they went to Molar Band Extension, Badarpur, Delhi in the intervening night of 20/21.09.2009 and effected the recoveries. PW37 in cross examination has stated that the custody of Kobad Ghandy was handed over to him at 6:30pm on 20.09.2009 and the recording of FIR started at 6:30pm. PW2 DSP J. Amarender Reddy in his cross examination initially stated that the disclosure statement of Kobad Ghandy was recorded at 2:30pm on 20.09.2009 but again stated that it was recorded on 21.09.2009 at 9am. If this was so then the statement of PW37 about custody of Kobad Ghandy being given to him at 6:30pm on 20.09.2009 and the recoveries being effected in the intervening night 20/21.09.2009 falls flat.
53. Neither PW16 nor PW37 have stated nor the charge-sheet records any fact to the effect that the keys of room of Rajinder Kumar at 930/D-40, Molar Band Extension, Badarpur, Delhi were with Kobad Ghandy when he led the police team there. PW3 however had stated that Kobad Ghandy opened the room of accused Rajinder Kumar with a key. This key is not found mentioned anywhere. It is not mentioned in the handing over memo Ex.PW2/A which records the documents and papers found in the possession of Kobad Ghandy by Hyderabad Police, it is not mentioned in Ex.PW3/A the seizure memo, it is not mentioned in State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 31/66 the personal search memo or even in the arrest memo of Kobad Ghandy. There is absolutely no explanation as to from where this key of the room of Rajinder Kumar surfaced.
54. In the case of Gopal Singh vs. State of M.P. reported in AIR 1972 SC 1557 and as followed in the case of Jaiveer Singh vs. State, reported in (1995) 57 DLT 479, it had been held that where there is no explanation about a key having surfaced for gaining access to any property, the recoveries made from such property cannot be relied upon. In the present case, the prosecution has not at all explained as to from where the key of the room of Rajinder Kumar came into possession of Kobad Ghandy. In view of the law laid down in the above cases, the recoveries made from the premises of PW3 cannot be relied upon.
55. Further, as deposed by PW3, he handed over documents of title of his property to the IO at the time of pointing out proceedings when Kobad Ghandy was brought to his premises. Ex.PW3/D1 are the copies of the documents of title which had been furnished by PW3 to the IO on 02.02.2010 and seized vide memo Ex.PW3/B. The same consist of a General Power of Attorney, Agreement for Sale, Affidavit and Receipt all dated 17.02.1995. These documents mention the address of the property of PW3 as House No. 930/40-D, Molar Band Extension, Badarpur, New Delhi. All of the them have interpolations on the address with the original typed address scored / crossed out and 'House No. 930, Gali No.4D' written in hand.
56. Ex.PW3/C (colly) are the originals of the said documents of title produced in Court by PW3 at the time of his examination in chief.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 32/66 Ex.PW3/C (colly) do not have the same interpolations on the address as exist on Ex.PW3/D1. Thus Ex.PW3/C (colly) and Ex.PW3/D1 are not one and the same set of documents.
57. The address of the premises of PW3 would not have been relevant / significant but for the fact that PW16 has stated in his examination in chief that Kobad Ghandy led the police team to house no. 930/G-40, Molar Band Extension, Badarpur, Delhi. Even in his cross examination the address is mentioned as 930/G-40, Molar Band Extension, Badarpur, Delhi. The arrest memo Ex.PW2/D mentions the address of Kobad Ghandy as 930/G-40, Molar Band Extension, Badarpur, Delhi whereas the address of PW3 in the other documents is mentioned as D-40. The difference is between 'G' and 'D'.
58. Ex.PW2/E is the disclosure statement of Kobad Ghandy. The last para of the said disclosure statement records that he was taking shelter in Delhi for the last three days and was residing at 930/G- 40, Molar Band Extension, Badarpur, Delhi and that he had kept a lot of literature, CDs, DVDs etc. relating to his party and he could assist the police in recovering it. The same does not mention that Kobad Ghandy was having any key of room of Rajinder Kumar in his possession. The same also records address of the said premises as 'G-40' rather than 'D-40' as claimed.
59. The above circumstances cast a serious doubts as to whether any articles at all were recovered from the premises of PW3 at the instance of Kobad Ghandy. There is difference regarding date and time of recovery between what is stated by way of documentary State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 33/66 evidence and testimonies of PW16 and PW37 when compared with the testimony of PW3. There is no explanation as to from where key of the room of Rajinder Kumar came into the possession of Kobad Ghandy as stated by PW3 especially when none of the memos pertaining to Kobad Ghandy, be it is handing over memo, arrest memo, personal search memo, seizure memo etc., recorded any key being found in his possession.
60. In view of the reasons recorded above, the prosecution has failed to prove beyond reasonable doubt that Kobad Ghandy had led the police team to the premises of PW3 from where incriminating material in the form of literature and digital storage devices were recovered.
MATERIAL DOWNLOADED FROM THE INTERNET AS EVIDENCE OF ASSOCIATION AND MEMBERSHIP OF KOBAD GHANDY OF THE BANNED ORGANIZATION CPI (MAOIST)
61. As per the prosecution, PW35 DCP Bhisham Singh had downloaded several documents from the internet with respect to Kobad Ghandy which indicated that he was a member of CPI (Maoist) and was associated with its activities. PW35 seized these downloaded documents vide memos Ex.PW35/A, Ex.PW35/F, Ex.PW35/H and Ex.PW35/J. Perusal of the said seizure memos reveals that the material / information which had been downloaded were accessed by PW35 from the following websites:-
(a) http://news/indiaid.com/blog/_archives/2009/10/15 45351277.html
(b) http://news/indiaid.com/blog/_archives/2009/10/9/ 4346387.html State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 34/66
(c) www.bannedthought.net/india/cpi-maoist-Doc/Index.
htm
(d) www.bannedthought.net/india/CPIMIB/Index.htm
(e) http://www.zeenews.com/news565365.html
(f) www.bannedthought.net/india.cpi-maoist-Doc/
Statements/PressStatmentOn.html
(g) www.bannedthought.net/india/cpi-maoist-Doc/Index.
htm
(h) www.bannedthought.net/india/cpi-maoist-Doc/Index.
htm#founding_Documents.
(g) http://news.bbc.co.uk/2/hi/south_asia.
62. As per the said seizure memos, the documents / material downloaded from the above mentioned websites pertaining to visit of Rahul Gandhi to family of slain cop Francis Enduwar, beheading of Jharkhand Police Inspector, press release dated 24.09.2009 of CPI (Maoist) pertaining to fight for unconditional release of Kobad Ghandy, information bulletin of CPI (Maoist) dated 07.10.2009, regarding information of the case of Kobad Ghandy, news item of top Maoist leader arrested in Delhi, demand for unconditional release of Kobad Ghandy, press statement dated 14.10.2004 of CPI (Maoist) regarding murder of CPI (ML) (PW) and MCCI and emergence of CPI (Maoist), Peoples March Supplement November-December, 2004 with joint interview of General Secretaries of CPI (ML) (PW) and MCCI on the occasion of their merger, complete party constitution of CPI (Maoist) and news item about Kobad Ghandy 'Indias Unlikely Maoist Revolutionary' and Kobad Ghandy 2008 interview.
63. PW35 had furnished signed certificates under Section 65B of the Indian Evidence Act in support of the information downloaded by him from the internet vide Ex.PW35/N, Ex.PW35/O and Ex.PW35/P. State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 35/66 64. In cross-examination regarding the information
downloaded by him from the internet, PW35 stated that he had not examined the editors of the websites news.indiaid.com, bannedthought.net, zeenews.com and news.bbc.co.uk. He had not conducted any separate investigation regarding veracity of the downloaded documents and he did not examine the authors of the articles which had been downloaded. With respect to the certificates under Section 65B of the Evidence Act, PW35 admitted that the certificates did not mention the particulars of the websites from which the material were downloaded. He stated that he had no control on the servers of the websites from where the documents were downloaded.
65. The question which arises for consideration is whether the material downloaded by PW35 from the internet would be admissible in evidence. The first hurdle which the prosecution will have to cross in this regard is the validity of the certificates under Section 65B of the Evidence Act furnished by PW35. All the certificates are identical in material aspects and one of them Ex.PW35/N reads as under:-
"It is certified that the computerized printouts of the CPI (Maoist) Information bulletin-11, Dt - October 7, 2009 in Case 58 / 2009 U/s 419 / 420 / 468 / 474 /120-B IPC & 10 / 13 / 18 / 20 UAPA Act 2008 P.S-Special Cell are the true printouts of the contents of bulletin downloaded from internet by me which has been produced from computer system having specifications HP Compaq dx6120 MT dx6120M/P4-630/80htw / 256H/4 INDIA, hp s/n - INI6120DG7, p/n - EM267PS#ACJ and its contents are true reproduction of the original to the best of my knowledge and belief."
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 36/66
66. As per PW35, the information relied upon has been downloaded by him from the above mentioned websites. In order to do so, he used his computer details of which are contained in each certificate. The material was thus neither generated nor stored in the computer system used by PW35. Rather the same was accessed from the internet through these computers. Section 65B (2) of the Evidence Act lists the conditions for any information contained in an electronic record to be deemed to be a document. A bare reading of Section 65 B (2) (1) reveals that the information in the electronic record has to be produced by the computer from which it has been retrieved. Further Section 65B (4) lays down that the person who has to sign the certificate has to be the person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.
67. In the present case, the information relied upon was hosted on websites. This information was accessed by PW35 by using his computer and then taking printouts of the same. The electronic record relied upon was thus not produced by the computer used by PW35. PW35 therefore was not competent to sign any certificate as required under Section 65B of the Evidence Act in support of the same. The said electronic records relied upon by the prosecution is therefore inadmissible in evidence.
68. It is also to be considered that websites are hosted on the internet. Servers of internet service providers are used to host these websites. PW35 has no control over these websites as admitted by him in cross-examination. PW35 did not verify the contents of the articles State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 37/66 and material by examining any of their authors even though some of the articles reflect the names of the authors of the articles as well as the journalists who are stated to have interviewed the accused. In these facts and circumstances there is no absolutely no authenticity of the material downloaded from the internet by PW35. The same therefore cannot be looked into for this reason as well.
E-MAILS ATTRIBUTED TO KOBAD GHANDY ACCESSED BY PW37 AND RELIED UPON TO PROVE HIS ASSOCIATION WITH CPI (MAOIST)
69. As per case of the prosecution the material seized from the premises of PW3 contained among others, e-mail ID [email protected] was mentioned. The same was accessed with the use of password provided by Kobad Ghandy and analysed after which PW37 prepared its analysis memo Ex.PW16/I.
70. PW16 in his examination in chief has stated that he could not remember the e-mail ID disclosed by Kobad Ghandy. In cross- examination, PW16 admitted that the analysis memo Ex.PW16/I did not mention the password of the e-mail ID stated to be used. The said memo was not signed by Kobad Ghandy. PW37 in his examination in chief has not stated anything about the particulars of the e-mail ID of Kobad Ghandy. In cross-examination PW37 admitted that the password of the e-mail attributed to Kobad Ghandy was not mentioned in the said analysis memo.
71. The analysis memo Ex.PW16/I records that the e-mail address used by Kobad Ghandy was [email protected]. I have State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 38/66 gone through the disclosure statements Ex.PW2/E and Ex.PW16/D of Kobad Ghandy. The same do not make any mention that Kobad Ghandy was using the said e-mail ID or that he could let the investigating officer have access to it by any password which was disclosed by him. There is therefore no material on the record to suggest that Kobad Ghandy had disclosed that he was using the said e-mail ID or that he had disclosed any password of the same.
72. The prosecution has relied on the printouts of these e- mails. PW37 has given a certificate under Section 65B of the Evidence Act vide Ex.PW37/A. As per the said certificate, PW37 accessed the e- mail of Kobad Ghandy through the computers used by him. In this regard, it will be pertinent to note that the electronic data / record which was accessed was stored in the servers of the e-mail service provider viz 'Yahoo'. The computers used by PW37 did not produce the said electronic record but provided access to it. PW37 would therefore not be competent to give any certificate under Section 65B of the Evidence Act in regard to the electronic records stored in the servers of Yahoo. No verification of the subscriber of the e-mail account [email protected] in terms of names, particulars and date on which the said e-mail account was created has been dome during the course of investigation. There is no independent authority which has certified that there was any such e-mail address created and subscribed.
73. In these facts and circumstances the analysis memo Ex.PW16/I and the printouts of the e-mail Ex.PW37/B cannot be looked into or read in evidence.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 39/66 RELIANCE PLACED BY THE PROSECUTION ON NEWS ITEMS PUBLISHED IN NEWSPAPERS AND CONTENTS OF OTHER FIRs IN WHICH KOBAD GHANDY IS ACCUSED OR WHERE OTHER ACCUSED HAVE DISCLOSED HIS NAME
74. PW37 had collected news items published in Hindustan Times and Indian Express newspapers Ex.PW16/B and Ex.PW16/C. In cross-examination PW37 stated that he did not examine the editors of the said newspapers in respect of the said articles.
75. PW10 had written a letter Ex.PW10/A about Kobad Ghandy. In the said letter, there is a mention that one Francis Enduwar had been abducted by CPI (Maoist) cadres who raised a demand for release of Kobad Ghandy as a pre-condition for release of the abducted person. It was stated that the said demand was made by an official of CPI (Maoist) who had called up a local newspaper. Along with the said letter, PW10 had furnished copies of the FIR relating to the abduction and status of the same. PW10 further stated that a confessional statement of Kobad Ghandy had been recorded by Andhra Police about his involvement in two cases in Jharkhand. PW10 in cross-examination stated that he did not examine any staff of the local newspaper to verify whether any call had been made raising the said demand.
76. PW13, PW15, PW21, PW23, PW25, PW26, PW28, PW29 and PW30 are officials who have produced copies of FIRs listing the involvements of Kobad Ghandy and Rajinder Kumar in cases pertaining to CPI (Maoist). The same have been relied upon by the prosecution as evidence of the fact that Kobad Ghandy was a member and associated State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 40/66 with the CPI (Maoist).
77. In the opinion of this Court none of the records produced by the above mentioned can be relied upon to come to a definite finding that Kobad Ghandy was a member of CPI (Maoist) or the other banned organizations. The contents of the FIRs and reports by themselves cannot be taken as conclusive evidence of this fact because they are only allegations, veracity of which are yet to be tested and established in any trials arising out of these cases. There is no final finding of fact of any Court in any of the said cases as per which Kobad Ghandy was found to be a member of CPI (Maoist). Newspaper reports also cannot be evidence of these allegations, more so when the authors of the articles were not even associated with the investigation. These records are thus immaterial when it comes to the question of membership and involvement of Kobad Ghandy with the said banned organisations.
KOBAD GHANDY RECEIVING TREATMENT IN SITA RAM BHARTIYA INSTITUTE OF SCIENCE & RESEARCH IN THE NAME OF NARSI PATEL
78. As per the prosecution, Kobad Ghandy had received treatment in the above mentioned hospital between 2007 and 2009 in the name of Narsi Patel. Medical documents of the said Institute were recovered from Kobad Ghandy when he had been apprehended. Dr. Jitender Nath Pandey PW11 from the said hospital who was working in the said hospital had stated that he had examined one patient by the name of Narsi Patel but he could not identify the said person due to lapse of time. He further stated that he had gone to the office of the Special Cell at Lodhi Colony and was shown a person by the name of State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 41/66 Kobad Ghandy. He stated that he told the police that he could not recognize by face but when he asked that person questions about his illness and for the treatment, the said person gave him rational and correct answers and on the basis of which he told the police that he might have treated the said person.
79. PW17 Dr. S.V. Kotwal had provided the clinical record of CR No.17233 of Narsi Patel of the said medical institution w.e.f. 10.09.2007 to 17.09.2009. PW17 also identified Kobad Ghandy in Court to be the same person who had received treatment in the name of Narsi Patel. In cross-examination, PW17 has stated that no TIP of Kobad Ghandy was conducted in his presence.
80. The records of above mentioned hospital Ex.PW2/B (colly.) had been found with Kobad Ghandy. All of them are treatment papers, records, OPD card etc. of the said institute in the name of Narsi Patel. One OPD bill cum Receipt mentions the name of doctor as S.V. Kotwal. PW17 S.V. Kotwal has identified Kobad Ghandy as the person who received treatment in the name of Narsi Patel for a period of two years between 2007 to 2009.
81. There is thus sufficient evidence to hold that Kobad Ghandy was receiving treatment in the said Institute in the assumed name of Narsi Patel between 2007 to 2009.
FORGERY OF GOVERNMENT RECORDS BY THE ACCUSED PERSONS AND USE OF THE SAME AS GENUINE
82. As per case of the prosecution, one EPIC bearing number State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 42/66 BVK0931188 with the photograph of Kobad Ghandy but in the name of Dilip Patel, son of Mukesh Patel with address 44G, WZ Possangi Pur Village Janakpuri New Delhi was recovered from him. The photograph on this election Identity card is that of Kobad Ghandy.
83. During the course of the investigation, a written communication was made by the IO to the office of the Assistant Electoral Registration Officer (AERO) Janakpuri Assembly Constituency vide letter dated Ex.PW4/A asking for details of the said EPIC, and whether it had been issued from the said office and for furnishing the application form and photographs of the applicant on the basis of which it was issued. PW4 verified the details of the said identity card and furnished the requisite information vide his letter Ex.PW4/C. As per the same, the said EPIC had been applied by one Dilip Patel, son of Mukesh Patel vide Form No.6 dated 04.02.2008 at the address 44G, WZ Possangi Pur Village Janakpuri New Delhi. The applicant had submitted copy of an electricity bill in the name of Ramesh Kumar and water bill in the name of Suresh Kumar of the address WZ-44G Possangi Pur as proof of residence. On the basis of the same the name of Dilip Patel was included in the Electoral Roll of Janakpuri Assembly Constituency.
84. The letter Ex.PW4/C further mentions that after inclusion of name of Dilip Patel in the Electoral Roll, the said applicant on 07.04.2008 applied for issuance of an EPIC for which Form No.001 was issued to him for signatures and verification. Along with the said Form, Dilip Patel had submitted copy of PAN Card no. APEPB6040J with a copy of a forwarding letter of the Income Tax Department as proof of his State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 43/66 identity and residential address. It was reported that on the basis of these documents, the name of Dilip Patel was entered into the EPIC issuance register and the said EPIC was issued by the office. Along with letter Ex.PW4/C, all the documents submitted along with application form for inclusion of the name in the voter list and for issuance of EPIC were sent by PW4 to the IO.
85. Thus, from the evidence and records produced by PW4 it stands established that EPIC bearing no.BVK0931188 with the photograph of Kobad Ghandy but in the name of Dilip Patel with the address WZ-44G Possangi Pur Village Janakpuri was issued by the office of the AERO Janakpuri Constituency Assembly. The records reflect that in support of the proof of address of WZ-44G Possangi Pur Village Janakpuri, copies of electricity bills and water bills of the said address had been furnished by the applicant to the office of the AERO. Further, along with the records sent by PW4, the photocopy of PAN Card No. APEPB6040J had been enclosed which had been submitted by the applicant for issuance of EPIC.
86. By letter Ex.PW7/A, the IO wrote to the Income Tax department asking for details of PAN Card No. APEPB6040J. The said details were provided by PW7 vide letter Ex.PW7/B as per which PAN number APEPB6040J did not exist in their records. However it was informed that there was PAN AWYPP5438P existed in the records issued in name of Dilip Patel, son of Mukesh Patel at the address Second Floor, WZ-44G Possangi Pur Village Janakpuri, Delhi-58. It was further stated that NSDL was the Service Provider which had processed the said application.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 44/66
87. After receiving this information, the IO wrote a letter Ex.PW5/A to the Income Tax Department asking for information regarding PAN card no. AWYPP5438P. PW5 vide his letter Ex.PW5/B furnished the said information confirming that the said PAN Card was issued in the name of Dilip Patel, son of Mukesh Patel, resident of Second Floor, WZ-44G Possangi Pur Village Janakpuri, New Delhi. PW5 has further reported that NSDL had been directed to provide the information regarding PAN Card no. AWYPP5438P directly to the police.
88. PW6 from the NSDL gave a report Ex.PW6/A to the IO regarding PAN Card No. AWYPP5438P. Along with said report, copy of the application form and supporting documents submitted with the said form for allotment of PAN card number were also enclosed. This form bears the particulars of Dilip Patel with address Second Floor, WZ-44G Possangi Pur Village Janakpuri, New Delhi and photograph of Kobad Ghandy. A printout of a statement of account number 206010100045155 of AXIS Bank was attached which was in the name of Dilip Patel with address at WZ-44G Possangi Pur Village Janakpuri, New Delhi. It was further stated that original application form for issuance of PAN and attached documents were with M/s Alankit Assignment Ltd. but the said organization vide letter dated 25.01.2013 had intimated PW6 that they had been destroyed due to seepage. However along with letter Ex.PW6/B of M/s Alankit Assignment Ltd., the copies of the same form and statement of accounts of AXIS bank were enclosed as had been made available by PW6 originally to the IO.
89. The IO then contacted AXIS Bank Malviya Nagar to verify State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 45/66 Account no.206010100045155. PW14 provided the records of the said account which was found to be in the name of Uma Rawat, employee of M/s Star Data. The Account Opening Form and supporting document in respect of the said account in the name of Uma Rawat were furnished to the IO vide documents Ex.PW14/A and Ex.PW14/B.
90. As per case of the prosecution after the accused Rajinder Kumar was arrested in this case, he had disclosed that he had opened a bank account at SBI Janakpuri under the name of Sameer Atmaj Joshi. The IO wrote a letter to SBI Janakpuri asking for details of the said bank account. PW31, Manager of the SBI Janakpuri furnished to the IO records of bank account no. 30556623815. PW31 produced the original Account Opening Form Ex.PW31/X which bears the photograph of Rajinder Kumar but the name of the Account Holder is mentioned as Sameer Atmaj Joshi with the address of the applicant as WZ-44G Possangi Pur Village Janakpuri, New Delhi. Along with Account Opening Form, the customer had furnished Form No.60 (Declaration by a person who does not have PAN Card), photocopy of EPIC no. BVK0929687 in the name of Sameer Atmaj Joshi, son of Rajiv Lochan Joshi at address WZ-44G Possangi Pur Village Janakpuri, New Delhi and copy of a Driving License in the name of Sameet Atmaj Joshi at the same address.
91. Once these documents and information came into the possession of the IO, he wrote to the AERO, Janakpuri Constituency Assembly asking for details and particulars of EPIC no. BVK0929687. PW9 vide his letter Ex.PW9/B gave a report to the IO that an applicant by the name of Sameer Atmaj Joshi, son of Rajiv Lochan Joshi had State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 46/66 submitted Form No.6 vide application dated 04.02.2008 with the address at WZ-44G Possangi Pur Village Janakpuri, New Delhi for inclusion of his name in the voter list. Along with application form, the applicant had submitted copies of electricity bill in the name of Ramesh Kumar with the address WZ-44G Possangi Pur Village Janakpuri, New Delhi. After verification by the Booth Level Officer, the name of Sameer Atmaj Joshi at that address was included in the voter list. The report further states that thereafter Sameer Atmaj Joshi applied for issuance of an EPIC vide Form No.001. Along with Form, Sameer Atmaj Joshi had submitted copy of PAN Card no. AJEPJ6040J and forwarding letter of Income Tax Department. On the basis of the same, Sameer Atmaj Joshi was issued the said EPIC. Along with covering letter Ex.PW9/B, PW9 enclosed forms and documents submitted by the applicant.
92. The IO then wrote to the Income Tax Department asking for details of PAN Card No. AJEPJ6040J. PW5 vide his letter Ex.PW5/D informed the IO that the said PAN Card was issued in the name of Sameer Atmaj Joshi, son of Rajiv Lochan Joshi at the address CE-1, Second Floor, care of Uma Construction Co., Hari Nagar, New Delhi. This letter also mentioned that NSDL had the details of the application form in respect of the said PAN Card. PW12 from NSDL vide letter Ex.PW12/A furnished the application form for issuance of PAN Card No. AJEPJ6040J in the name of Sameer Atmaj Joshi along with which statement of account of GE Money and VISA Card had been affixed. The PAN Application Form had the photograph of Rajinder Kumar but was in the name of Sameer Atmaj Joshi with address CE-1, Second Floor, care of Uma Construction Co., Hari Nagar, New Delhi.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 47/66
93. During the course of investigation, specimen handwriting and signatures of Rajinder Kumar were obtained and sent with recovered documents (questioned documents) for forensic examination and comparison to the CFSL CBI Lodhi Road, New Delhi. Ex.PW34/A was Form No.6 furnished by AERO, Janakpuri Constituency Assembly in the name of Dilip Patel which had the questioned handwritings / signatures Q1 and Q2. Ex.PW34/B is Form No.6 produced by AERO in the name of Sameer Atmaj Joshi on which questioned handwritings / signatures were marked as Q5, Q6 and Q6A.
94. Xerox copies of electricity bills with original handwriting and signatures had been attached with Form No.6 Ex.PW34/A and Ex.PW34/B when they had been submitted to the office of the AERO as proof of address of the applicants. These bills were in the name of Ramesh Sharma. Specimen signatures of Rakesh Sharma were also collected by the IO on three sheets Ex.PW34/G (colly) and sent for forensic examination with the electricity bills.
95. The questioned handwritings / signatures Q3 and Q4 were on Ex.PW34/C (one xerox copy of electricity bill) and Q7 and Q8 were on Ex.PW34/D (another xerox copy of electricity bill). The questioned handwritings and signatures Q3, Q4, Q7 and Q8 on the xerox copies of these documents were written in original. The specimen handwritings of Rajinder Kumar were taken on thirty sheets mark S1 to S10 and S14 to S33 [Ex.PW34/F (colly.)].
96. PW34 examined these documents and gave his report Ex.PW34/H. PW34 found that Q4 (signature of Ramesh Sharma) and State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 48/66 Q8 ( signature of Ramesh Sharma) on Ex.PW34/C and Ex.PW34/D (electricity bills) respectively were not written by Ramesh Sharma but had been written by the accused Rajinder Kumar. PW34 could not give any definite opinion regarding Q3 and Q7 (words written in Hindi on the electricity bills Ex.PW34/C and Ex.PW34/D) when compared with specimen writings S1 to S6 of Rajinder Kumar. He could not express opinion regarding rest of the questioned handwritings / signatures.
97. Thus as per the report Ex.PW34/A, the electricity bills in the name of Ramesh Sharma with the address at WZ-44G Possangi Pur Village Janakpuri, New Delhi which had been submitted to the office of the AERO against which EPIC no. number BVK0931188 in the name of Dilip Patel and EPIC no. BVK0929687 in the name of Sameer Atmaj Joshi bearing the photos of Kobad Ghandy and Rajinder Kumar respectively had been issued had the signatures of Ramesh Kumar which had been written by Rajinder Kumar.
98. It had been submitted on behalf of Rajinder Kumar that Insp. Kailash Bisht who had taken the sample handwritings and signatures of Rajinder Kumar was not examined as a witness and that no permission of the Court had been taken to obtain the same. It is true that Insp. Kailash Bisht was not examined as a witness. In fact, he was not cited as a witness. However PW35 has deposed in his examination in chief that Insp. Kailash Bisht on 29.03.2010 had obtained the specimen handwriting of Rajinder Kumar after taking permission of the Court. There is no cross-examination of PW35 on this aspect except to the extent that he has stated that the said specimen were not taken in his presence. It is to be seen that the specimen handwritings and State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 49/66 signatures bear the stamp and attestation of the Chief Metropolitan Magistrate in whose presence it was taken. Section 114 of the Evidence Act read with Illustration (e) raises a presumption that all judicial and officials acts have been regularly performed. No suggestion was given to PW35 to the effect that the sample signatures and handwritings of Rajinder Kumar were never obtained or that the same were taken in duress. The arguments which were made are more in the form of an afterthought. Even otherwise, the cross-examination of PW35 is not at all effective and there nothing material in the same which could dislodge the presumption under Section 114 of the Evidence Act that the samples of handwritings and signatures of Rajinder Kumar were not properly obtained. The said submission is therefore rejected.
99. Apart from documentary evidence regarding forgery of government records, the prosecution has also examined witnesses to prove the association of Rajinder Kumar with address WZ-44G Possangi Pur Village Janakpuri, New Delhi. PW34 Ramesh Sharma is the owner of premises no.WZ-44G Possangi Pur Village Janakpuri, New Delhi. He stated that he has several tenants residing in his house and that Prem Raj Bhandari (PW33) was one of his tenants. He has also identified electricity bills Ex.PW34/A and Ex.PW34/B on which he denied his signature / handwriting on Q3 and Q4. He denied knowing any persons by the name of Dilip Patel son of Mukesh Patel. He has denied that Sameer Atmaj Joshi was ever his tenant.
100. PW33 Prem Raj Bhandari has stated that he was residing as a tenant in property no.WZ-44G Possangi Pur Village Janakpuri, New Delhi. He was known to Rajinder Kumar as Sameer Atmaj Joshi State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 50/66 whom he identified in the Court and stated that he subsequently came to know that his real name was Rajinder Kumar. He stated that he had helped Rajinder Kumar to get issued his EPIC. He further stated that Mukesh Kumar (PW36) was his friend and through him Rajinder Kumar met Mukesh Kumar. He stated that Mukesh Kumar had helped Rajinder Kumar by acting as an introducer for opening of a bank account in SBI Janakpuri for Rajinder Kumar.
101. PW36 Mukesh Kumar has stated that PW33 was his friend who used to reside in the house of PW34. He stated that he was having a saving banks account in SBI Janakpuri and on the asking of Prem Raj Bhandari, he acted as an introducer and helped Sameer Atmaj Joshi to open a bank account. PW36 identified his signatures on the Account Opening Form Ex.PW31/A at point A where he had signed as the introducer.
102. PW33, PW34 and PW 36 have been cross examined by Ld. Counsel for the accused persons but nothing material come in their cross examination which could cast any doubt about their truthfulness.
103. In the opinion of this Court the prosecution has been able to prove that Rajinder Kumar forged the signatures of Ramesh Sharma on two electricity bills of the premises of Ramesh Sharma at WZ-44G Possangi Pur Village Janakpuri, New Delhi. These bills were found in the records of the AERO, Janakpuri on the basis of which the names of Dilip Patel and Sameer Atmaj Joshi were entered into the Electoral Roll. Applications were then made for issuance of EPICs. Along with the applications copies of PAN cards in the names of Dilip Patel and Samir State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 51/66 Atmaj Joshi were filed. PAN card with the photograph of Rajinder Kumar in the name of Samir Atmaj Joshi had been submitted to the AERO. Another PAN card in the name of Dilip Patel with the photograph of Kobad Ghandy was also submitted. Both these PAN cards had the address WZ-44G Possangi Pur Village Janakpuri, New Delhi. Fake statements of bank accounts were also furnished in names of Dilp Patel and Samir Atmaj Joshi with the address at WZ-44G Possangi Pur Village Janakpuri, New Delhi. On the basis of these documents EPICs were issued in the names of Dilip Patel and Sameer Atmaj Joshi. These EPICs bear the photographs of Kobad Ghandy and Rajinder Kumar. The EPIC in the name of Dilip Patel was found in possession of Kobad Ghandy. The EPIC in the name of Sameer Atmaj Joshi and Pan card was used for opening of a bank account in SBI Janakpuri in the name of Sameer Atmaj Joshi by Rajinder Kumar. The said bank account opening form has the photograph of Rajinder Kumar and the address i.e. WZ- 44G, Possangi Pur, Janakpuri, Delhi. The association of Rajinder Kumar with the said address has been proved by PW34 and PW33.
104. As far as the association of Kobad Ghandy with Rajinder Kumar is concerned, PW3 has identified Rajinder Kumar as the person to whom he had let out his premises as Arvind Joshi. PW3 has stated that he had seen Kobad Ghandy visiting the said premises and he has identified both the accused in the Court. Even if it can be argued that the testimony of PW3 is not reliable, the same is corroborated by PW32 who has stated that he had let out his premises to one Arvind Joshi who he later on came to know was Rajinder Kumar. PW32 has also stated that Kobad Ghandy used to visit Rajinder Kumar in the said premises and reside in his room for 1 or 2 days. The testimonies of PW3 and State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 52/66 PW32 could not be shaken in cross-examination.
105. For the reasons recorded above, the prosecution has been able to prove beyond any reasonable doubt that Rajinder Kumar in conspiracy with Kobad Ghandy fabricated and forged documents on the basis of which EPIC and PAN cards have been issued to them. One forged EPIC card has been found in the possession of Kobad Ghandy while use of the forged EPIC and PAN card by Rajinder Kumar for opening of a bank account stand proved. This is apart from the fact that forgery of the signature of Ramesh Sharma by Rajinder Kumar on the electricity bills of Ramesh Sharma also stands proved.
FINDINGS QUA KOBAD GHANDY FOR THE CHARGE UNDER SECTIONS 20 AND 38 OF THE UAPA
106. The prosecution had relied upon the recoveries made from the house of PW3 at the instance of Kobad Ghandy, printouts of e-mails accessed at his instance, information and articles about him downloaded from the internet, newspaper reports as well as contents of FIRs to prove that he was associated with CPI (Maoist) and its banned predecessor organizations CPI (ML) (PW) and MCC.
107. As observed above, none of the evidences relied upon by the prosecution have been found to be admissible in evidence by this Court. The testimonies of the prosecution witnesses suffer from infirmities. The recoveries made at the instance of the accused have not been proved beyond reasonable doubt. The disclosure statements of Kobad Ghandy cannot be read in evidence by virtue of the bar under section 25 of the Evidence Act as the same has been made to a police State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 53/66 officer.
108. The task of the prosecution is to establish its case against an accused beyond any reasonable doubt. The same has been reiterated by the Hon'ble Supreme Court in several cases. In the case of Paramjeet Singh vs. State of Uttarakhand (2010) 10 SCC 439 it was held that the burden of proof is on the prosecution to prove its case beyond reasonable doubt and that the law does not permit the Court to punish the accused on the basis of moral conviction or suspicion alone. The more serious the offence, stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. In the case of Kali Ram vs. State of Himachal Pradesh (1973) 2 SCC 808 it was held that when two views are possible, one pointing to the guilt and other to the innocence of the accused, the view favourable to the accused must be taken. When Court entertains a reasonable doubt regarding the guilt of the accused, the accused must get the benefit of that doubt. In the case of Datar Singh vs. State of Punjab (1975) 4 SCC 272 it has been held that suspicion, however grave, cannot be a satisfactory basis for convicting an accused person. When the superstructure of the prosecution has crumbled, it is impossible to not give the benefit of the doubt to the accused.
109. In the facts and circumstances of this case, there are reasonable doubts on the version of the prosecution on charge under Sections 20 and 38 of the UAPA. The benefit of the same will have to go to the accused.
110. It had been argued that Kobad Ghandy was residing in State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 54/66 Delhi in an assumed name of Narsi Patel for two years and had in his possession forged documents in the name of Dilip Patel. It was submitted that the only reason for which Kobad Ghandy was using assumed names and forged documents was to keep himself away from the glare of the prosecution agencies as he was a member of the said banned terrorist organizations.
111. It is true that the prosecution has been able to prove that Kobad Ghandy was residing in Delhi in an assumed name and that he had in his possession forged documents. These circumstances do give rise to a grave suspicion that he wanted to avoid himself from being discovered. Suspicion, however grave it might be, cannot be equated with proof of the said fact. The material relied upon by the prosecution to prove the membership and association of Kobad Ghandy with the said banned organizations is not reliable and admissible in evidence. Kobad Ghandy was residing in Delhi in assumed names with fake identities. However the gap between using fake identities and membership of the said banned organizations cannot be filled on the basis of suspicion.
112. I may note that submissions had been addressed regarding the validity of the sanction for prosecution under Section 45 (2) of the UAPA. Submission had also been made that the prosecution was required to prove not only membership of a banned organization but also that the banned organization was involved in terrorist acts. It had also been submitted that the material relied upon by the prosecution was of a period prior to the date on which CPI (Maoist) had been declared as a terrorist organization. Now that this Court has come to a finding that the material which was relied upon the prosecution was not State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 55/66 at all reliable and admissible to be considered to establish the charges under Sections 20 and 38 of the UAPA, I do not deem it necessary to render any findings on these legal submissions.
113. Hence in the absence of any evidence in support of these charges, Kobad Ghandy is acquitted for the charge framed for the offences under Sections 20 and 38 of the UAPA.
FINDINGS QUA KOBAD GHANDY AND RAJINDER KUMAR FOR THE CHARGES UNDER SECTIONS 120B IPC, SECTIONS 468 AND 420 BOTH READ WITH SECTION 120B IPC
114. The evidence on record has established that Rajinder Kumar had forged the signatures of Ramesh Sharma on electricity bills which were used for inclusion of the names of Dilip Patel and Sameer Atmaj Joshi in the Electrol Roll and subsequently for issuance of EPIC cards in the names of Dilip Patel and Sameer Atmaj Joshi which had the photographs of Kobad Ghandy and Rajinder Kumar respectively. The association of Kobad Ghandy and Rajinder Kumar has also been proved by eye-witness. Kobad Ghandy is proved to be have been residing in Delhi and receiving treatment in an assumed name.
115. Making any false document with intention to, amongst others, commit fraud or to support any claim or to cause any person to part with property or to enter into any express contract is forgery as explained Section 463 of the IPC. Making of a false document is explained in Section 464 of the IPC. The third explanation to Section 464 provides that a person is said to make a false document who amongst others, dishonestly or fraudulently causes any person to sign State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 56/66 or execute a document or by reason of deception practiced upon him, he does not know the contents of the document.
116. In the opinion of this Court, there is sufficient evidence to infer that in order to enable Kobad Ghandy to remain underground, Rajinder Kumar carried out forgery on the basis of which fake EPIC was issued to Kobad Ghandy. Therefore both Kobad Ghandy and Rajinder Kumar are convicted for the offence punishable under Section 120B of the IPC.
117. In the present case PAN Cards and EPICs have been obtained by the accused persons on fictitious addresses and names. For this purpose signatures of Ramesh Sharma were forged by Rajinder Kumar by which deception was practiced on the EPIC and PAN Card issuing authorities and fraud played upon them as by virtue of the said documents, the said authorities were caused to issue the said documents. Cheating is defined under Section 415 of the IPC to include deceiving any person fraudulently or dishonestly to deliver any property or to intentionally induce the person deceived to do something which he would not do if he had not been deceived. By practicing fraud upon the government authorities and forging documents, the accused persons committed the offence of cheating vis a vis the authorities which issued the EPIC and PAN Cards to them.
118. The offence under Section 468 of the IPC is forgery for the purposes of cheating. The said offence has been committed by Kobad Ghandy and Rajinder Kumar and they are therefore convicted for the offence punishable under Section 468 IPC read with Section 120B of State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 57/66 the IPC.
119. Section 420 of the IPC provides for punishment of cheating and dishonestly inducing the person deceived to deliver any property or to make alter or destroy any valuable security. Valuable security is defined under Section 30 of the IPC to include a document by which any legal right is created, extended, transferred, restricted, extinguished or released. An EPIC is a document which recognises the right of a citizen of a country to vote in an election. The said document is also recognized for several ancillary purposes. It will amount to a valuable security as defined under Section 30 of the IPC. By playing fraud and cheating, the accused persons induced the government to issue EPIC to them. Both the accused are therefore convicted for the offence punishable under Section 420 IPC read with Section 120B IPC.
FINDINGS QUA KOBAD GHANDY AND RAJINDER KUMAR FOR THE CHARGE UNDER SECTION 474 IPC
120. Both Kobad Ghandy and Rajinder Kumar are charged with the offence under Section 474 IPC which punishes the act of being found in possession of documents knowing the same to be forged.
121. As far as the evidence led in this case is concerned, Kobad Ghandy was found in possession of a fake EPIC. The same bears his photograph but has been issued in the name of one Dilip Patel. Kobad Ghandy is therefore convicted for the charge under Section 474 of the IPC.
122. However actual physical possession of forged documents State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 58/66 i.e. EPIC and PAN Card with Rajinder Kumar has not been proved. Rajinder Kumar is therefore acquitted for the charge under Section 474 of the IPC.
FINDINGS QUA KOBAD GHANDY FOR THE CHARGE UNDER SECTIONS 419 AND 471 OF THE IPC
123. Section 419 of the IPC makes punishable the act of cheating by personation. The prosecution has proved that Kobad Ghandy cheated Government Authorities into issuing EPIC and PAN Card in the name of Dilip Patel but with his photograph. Kobad Ghandy is therefore convicted for the offence under Section 419 of the IPC.
124. Section 471 of the IPC makes punishable the offence of fraudulently or dishonestly using as genuine any document which is forged. A fake PAN card had been submitted along with the application form for issuance of EPIC on the basis of which the EPIC was issued to Kobad Ghandy. Kobad Ghandy is therefore convicted for the offence under Section 471 of the IPC.
FINDINGS QUA RAJINDER KUMAR FOR THE CHARGE UNDER SECTION 419 OF THE IPC
125. As observed above, Section 419 of the IPC makes punishable the act of cheating by personation. The prosecution has proved that Rajinder Kumar cheated Government Authorities into issuing EPIC and PAN Card in the name of Sameer Atmaj Joshi but with his photograph. Further he also induced SBI Janakpuri to open a bank account in the name of Sameer Atmaj Joshi. Rajinder Kumar thus State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 59/66 cheated Government Authorities as well as SBI Janakpuri by personation. Rajinder Kumar is therefore convicted for the offence under Section 419 of the IPC.
CONCLUSION
126. The net result of the above discussion is as under:-
(a) Kobad Ghandy is acquitted for the charges under Sections 20 and 38 of the UAPA;
(b) Kobad Ghandy and Rajinder Kumar are convicted for the charge under Section 120B of the IPC;
(c) Kobad Ghandy and Rajinder Kumar are convicted for the charge under Section 468 IPC read with Section 120B of the IPC;
(d) Kobad Ghandy and Rajinder Kumar convicted for the charge under Section 420 IPC read with Section 120B IPC;
(e) Kobad Ghandy is convicted for the charge under Section 474 of the IPC;
(f) Rajinder Kumar is acquitted for the charge under Section 474 of the IPC;
(g) Kobad Ghandy is convicted for the charge under Sections 419 and 471 of the IPC; and
(h) Rajinder Kumar is convicted for the charge under Section 419 of the IPC.
Announced in the open Court (REETESH SINGH)
on 10th June, 2016 ASJ-02/FTC, PHC/NDD
10.06.2016
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 60/66
State vs. Kobad Ghandy & Anr.
FIR No. 58 of 2009
PS : Special Cell
10.06.2016
Present: Sh. Irfan Ahmad, Ld. Addl. PP for the State.
Both the accused Kobad Ghandy and Rajinder Kumar are produced from JC.
Sh. Bhavook Chauhan and Ms. Priyanka Kakkar, Ld. Counsel for both the accused persons.
Vide separate judgment, (a) Kobad Ghandy is acquitted for the charges under Sections 20 and 38 of the UAPA; (b) Kobad Ghandy and Rajinder Kumar are convicted for the charge under Section 120B of the IPC; (c) Kobad Ghandy and Rajinder Kumar are convicted for the charge under Section 468 IPC read with Section 120B of the IPC; (d) Kobad Ghandy and Rajinder Kumar convicted for the charge under Section 420 IPC read with Section 120B IPC; (e) Kobad Ghandy is convicted for the charge under Section 474 of the IPC; (f) Rajinder Kumar is acquitted for the charge under Section 474 of the IPC; (g) Kobad Ghandy is convicted for the charge under Sections 419 and 417 of the IPC and (h) Rajinder Kumar is convicted for the charge under Section 419 of the IPC.
Arguments on the point of sentence addressed.
Be await for orders at 4pm.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 10.06.2016 At 4pm Present : As above.
Vide separate order, order on sentence is passed. Copy of the same supplied to the convicts free of cost.
File be consigned to the Record Room.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 10.06.2016 State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 61/66 IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI Case ID No. 02403R0342582010 Sessions Case No. 96 of 2013 State vs. 1) Kobad Ghandy
2) Rajinder Kumar @ Arvind Joshi @ Sameer Atmaj Joshi FIR No. 58 of 2009 PS: Special Cell U/s: 419/420/468/474/120B IPC & 10/13/18/20 UAPA ORDER ON SENTENCE 10.06.2016
1. Sh. Bhavook Chauhan and Ms. Priyanka Kakkar, Ld. Counsel on behalf of the convicts had argued that Kobad Ghandy has been acquitted for the graver offences i.e. Sections 20 and 38 of the UAPA. It was submitted that Kobad Ghandy is 68 years of age and has faced trial in this case for almost seven years. It was submitted that both convicts Kobad Ghandy and Rajinder Kumar are in custody from the date of their arrest. It was submitted that the conviction of both are for having conspired to commit acts of forgery and cheating simplicitor. The offences for which they have been convicted have not caused any loss or damage to any person or authority. They submitted that keeping in view the period of incarceration and the period of trial faced, this Court should not impose sentences of imprisonment on them beyond the period they have already undergone.
2. On behalf of the State, Ld. Addl. PP Sh. Irfan Ahmad has State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 62/66 submitted that convicts committed forgery to conceal themselves from apprehension. It was stated that the intention of the convicts was clear and therefore the maximum possible sentence as provided under the statute be imposed upon them.
3. I have heard Ld. Addl. PP for the State and Ld. Counsel for convicts.
4. This Court has acquitted convict Kobad Ghandy for the graver offences under Sections 20 and 38 of the UAPA. Kobad Ghandy is aged 68 years and is in custody since 20.09.2009. Rajinder Kumar was not charged for any offence under the UAPA. He is in custody since 19.03.2010. Keeping in view facts and circumstances, I impose the following sentences upon the convicts:-
KOBAD GHANDY
(a) Section 468 IPC read with Section 120B of the IPC:-
The offence under Section 468 of the IPC is punishable with imprisonment of either description for a term which may extend to seven years and is also liable to fine.
Kobad Ghandy is in custody since 20.09.2009 which is almost six years and six months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence under Section 468 of the IPC read with Section 120B of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
(b) Section 420 IPC read with Section 120B IPC:-
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 63/66 The offence under Section 420 of the IPC is punishable with imprisonment of either description for a term which may extend to seven years and is also liable to fine.
Kobad Ghandy is in custody since 20.09.2009 which is almost six years and six months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence under Section 420 read with Section 120B of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
(c) Section 474 of the IPC:-
The offence under Section 474 of the IPC is punishable with imprisonment of either description for a term which may extend to seven years and is also liable to fine where the forged document falls under the category under Section 466 of the IPC; where the document falls under the category mentioned in Section 467 of the IPC, punishment prescribed is imprisonment for life or imprisonment of either description which may extend to seven years and is also liable to fine.
Kobad Ghandy is in custody since 20.09.2009 which is almost six years and six months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence under Section 474 of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
(d) Sections 419 and 471 of the IPC:-
The offence under Section 419 of the IPC is punishable with imprisonment of either description for a term which may extend to three years or with fine or both.
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 64/66 Kobad Ghandy is imposed a term of imprisonment of three years for the offence under Section 419 of the IPC.
The offence under Section 471 of the IPC is punishable in the same manner as if the person had forged the document which he had used. The document falls under the category specified in Section 467 of the IPC. The same is punishable with imprisonment for life or imprisonment of either description which may extend to seven years and is also liable to fine.
Kobad Ghandy is in custody since 20.09.2009 which is almost six years and six months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence under Section 471 of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
RAJINDER KUMAR
(a) Section 468 IPC read with Section 120B of the IPC:-
The offence under Section 468 of the IPC is punishable with imprisonment of either description for a term which may extend to seven years and is also liable to fine.
Rajinder Kumar is in custody since 19.03.2010 which is almost six years and three months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence punishable under Section 468 IPC read with Section 120B of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
(b) Section 420 IPC read with Section 120B IPC:-
The offence under Section 420 of the IPC is punishable with imprisonment of either description for a term which may extend to State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 65/66 seven years and is also liable to fine.
Rajinder Kumar is in custody since 19.03.2010 which is almost six years and three months. I therefore impose upon him a term of imprisonment already undergone by him and fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 120B of the IPC. In default of payment of fine, he shall undergo a further simple imprisonment for two months.
(c) Section 419 of the IPC:-
The offence under Section 419 of the IPC is punishable with imprisonment of either description for a term which may extend to three years or with fine or both.
Rajinder Kumar is imposed a term of imprisonment of three years for the offence under Section 419 of the IPC.
5. Fine not deposited. All the above mentioned sentences to run concurrently. Benefit of Section 428 of the Cr.P.C. be given to both the convicts. Copy of this order be given free of cost to both the convicts.
Announced in the open Court (REETESH SINGH)
on 10th June, 2016 ASJ-02/FTC, PHC/NDD
10.06.2016
State vs. Kobad Ghandy & Ors.
FIR No. 58 of 2009, PS: Special Cell 66/66