Delhi District Court
State vs Kuljinder Singh & Anr on 30 April, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDL. CHIEF METROPOLITAN MAGISTRATE-01, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: NEW DELHI
FIR No.: 343/2004
POLICE STATION: IGI AIRPORT
U/S: 419/420/468/471/120B and 12 PP Act.
IN THE MATTER OF
STATE
VS
KULJINDER SINGH & ANR.
(i) Kuljinder Singh
S/o. Mr. Jagtar Singh
R/o. 80, Siana Sadan Tehsil Pheowa,
District Kurkshetra (Haryana).
PS Begowal, District Kapurthala, Punjab
(ii) Neharika Mathur @ Neelu @ Neeharika Haider
D/o. Mr. Harmendra Nath Mathur
R/o. B-1/25, Asmita Jyoti Society,
Marve Road, Malad -West, Mumbai.
Date of institution:21.11.2005
Date of reserving Judgement/Order: 29.04.2013
Date of Pronouncement of Judgement/Order: 30.04.2013
FIR NO.: 343/2004 POLICE STATION: IGI Airport
U/S: 419/420/468/471/120 B and 12 PP Act. 1 of 18
Brief statement of reasons for such decision:
1.It is the case of the prosecution that on or before 29/07/2004 at arrival left wing of immigration, both accused namely Kuljinder Singh and Neharika Mathur @ Neelu @ Neeharika Haider entered into a criminal conspiracy to facilitate their journey to USA and on the said date at about 02.15 am, both accused produced passport No. B2769657 dt. 04/10/2000 issued at Chandigarh, on scrutiny of which, it was found that there were no departure stamps. It is also alleged that both accused namely Kuljinder Singh and Neharika Mathur @ Neelu @ Neeharika Haider used the abovesaid passport as genuine despite knowing that the same was forged. On these allegations, present case was registered against both the accused for the offences U/s. 419/420/468/471/120B and 12 PP Act.
2. After investigations, charge sheet U/s. 419/420/468/471/120B and 12 PP Act in the matter was filed. A charge for the offences U/s. 420/471 r/w 120 B IPC only was settled against the accused Kuljinder Singh and Neharika Mathur @ Neelu @ Neeharika Haider. The accused Kuljinder Singh pleaded guilty and he was convicted vide order dt. 06/11/2008 passed by my Ld. Predecessor. However accused Neharika Mathur @ Neelu @ Neeharika Haider pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined as many as 14 witnesses out of the total 17 witnesses cited in the list of witnesses.
(i) Mr. R. S. Rawat, LDC from Regional Passport Office, Delhi has been been examined as PW 1, he produced the summoned record pertaining to the passport no. A6555331 dt. 20/11/1998 issued by RPO, Delhi in favour of Smt. Neha Mathur, D/o. Sh. Hemander Nath Mathur and proved the passport verification report as Ex. PW-1/A and identified the signature of U. S. Lingwal, PRO, RPO, Delhi as witness/PW-1 has seen him writing and signing. He also produced the summoned record in respect of passport no. A4384143 dt.
10/11/1998 issued by RPO in favour of Sh. Ali Haider, S/o. Zargham Haider. He also proved the passport verification report in this regard as Ex. PW-1/B and FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 2 of 18 identified the signature of U. S. Lingwal, PRO, RPO, Delhi as he has seen him writing and signing.
In his cross-examination by Ld. Defence counsel, Sh. I. S. Kapoor, he deposed that he had not brought any record in respect of the passport in the name of Niharika Haider and voluntarily stated that he was not directed to bring the same. The witness deposed that he could not state without any record whether Niharika Haider had changed her name as Neha Mathur after the demise of her husband or the earlier passport was in the name of Niharika Haider and he only could tell this fact after seeing the file of original passport of Niharika Haider.
(ii) SI Ravi Dutt, No. D-1137, Anti Extortion Cell, R. K. Puram, New Delhi has been examined as PW-2. He deposed that on the intervening night of 28/29.07.2004, Inspector Radha Raman, IC Wing handed over one pax namely Kuljinder, (accused present in the court correctly identified by the witness) to him with passport no. B-2769657 issued at Chandigarh, who had arrived as deportee from USA by flight no. AI-112. On scrutiny of the passport, it was found that it was not having any departure stamp. The pax/accused Kuljinder was interrogated and it was revealed that he had left for USA via Bangkok and Seoul from International Airport, Kolkatta, West Bengal by using passport of some other person namely Haider Ali by impersonation. Witness also deposed that journey of accused was arranged by one Agent namely Mrs. Narkhar Haider at the cost of Rs. 8,00,000/- (eight lacs) and the said Agent had accompanied the accused to USA and after reaching the Airport at USA, the agent took his passport and left him there and later he was apprehended by the immigration and deported back to India. The travel documents of accused i.e. passport, D-Card and deportation form Ex. P-1 to P-3 were taken into possession and after preparing the rukka Ex. PW-1/A, witness/ PW-2 sent it to the PS for registration of the case alongwith pax/accused and Ex. P-1 to P-3 through constable Pratap Singh.
In his cross-examination by Ld. Defence counsel, Sh.
Satvinder Singh, he admitted that there was no forgery on the passport Ex. P-1. He also admitted that there is no mention of any record of the previous departure FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 3 of 18 of the pax in his rukka including its date. He admitted that the departure of the pax/accused could not be confirmed. Witness stated that at the time of interrogation of accused, he was alone present there. He further deposed that he could not say whether previously the accused had travelled on his own genuine passport, or whether accused Kuljinder remained in JC in USA or during such period of custody in USA, he had obtained/procured the passport from his family members. He admitted that the accused was a deportee. Witness deposed that he could not say whether the accused was kept in custody in USA before he was deported. He admitted that in Indian Immigration, there is a rule that whenever any pax is to be deported he is kept in custody and is deported after his relevant documents have been arranged. He denied the suggestion that accused was falsely implicated and the complaint Ex. PW-1/A was false.
(iii) Constable Pratap Singh, No. 11362, DAP, 10th Batallion examined as PW 3. In his examination in chief, he deposed that on the intervening night of 28-29/07/2004 he was handed over rukka Ex. PW-2/A, Passport, deportation form and D-Card Ex. P-1 to P-3 and accused/pax Kuljinder, present in the Court, by SI Ravi Dutt and sent to PS for registration of the case. After reaching at PS, witness handed over abovesaid documents as well as accused to DO and got the formal FIR registered. Travel documents were seized vide memo Ex. PW-3/A bearing his signatures at point A. In his cross-examination by Ld. Defence Counsel, Sh. Satvinder Singh, Witness/PW-3 deposed that Rukka Ex. PW-2/A was written in his presence. He stated that the accused Kuljinder was not interrogated by SI Ravi Dutt in his presence. He did not know the contents of rukka. However, at the time of preparing the rukka by SI Ravi Dutt, 4-5 other officers were present, names of whom he could not tell. He deposed that IO of the case did not meet him in PS on the said day. He also deposed that his statement was recorded by SI Ravi Dutt only and thereafter neither his statement was recorded by IO nor he was called by IO. IO also never came to him. He denied the suggestion that no FIR was got registered in his presence or that the present accused is falsely implicated.
FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 4 of 18 (iv) HC Pramod Kumar, No. 4430, Traffic was examined as PW-4, he
deposed that on 29/07/2004, he had joined investigation with the IO SI Afzar Raza. Accused present in the Court, was correctly identified by the witness. He stated that on the said day the personal search of accused was conducted vide memo as Ex. PW-4/A and his disclosure statement was recorded as Ex. PW-4/B. The documents bear his signatures at point A. PW-4 further deposed that he himself alongwith accused Kuljinder and IO went to Hauz Khas for the search of accused Niharika but she was not found there. Thereafter they went to Mumbai for confirming about the departure of Niharika and came back to Delhi.
In his cross-examination by Ld. Defence Counsel, Sh.
Satvinder Singh, Witness deposed that the accused/pax was handed over to him at about 04.00 am. He remained with accused till his police remand i.e. from 30/07/2004 to 04/08/2004. However, he could not remember the date when they went to Hauz Khas and stated that perhaps the date was 30. He was not aware whether any DD entry was made in the concerned PS at Hauz Khas. He deposed that they stayed there for about three hours. He deposed further that they had gone to one house where one old person met them but IO did not record his statement. He stated that IO did not record the statement of any person at Mumbai nor any notice was given to anyone. He denied the suggestion that he had signed all the documents on asking of IO at the PS. He also denied the suggestion that he had not visited any place as stated.
(v) SI Afsar Raza, No. D-3614, Line, IGI Airport has been examined as PW-5 and deposed in his examination in chief that on 29/07/2004 investigation of present case was assigned to him and Duty officer handed over to him the original complaint Ex. PW-2/A and the travel documents already Ex. P-1 to P-3 and carbon copy of FIR already Ex. PW-11/A alongwith pax/accused Kuljinder. He deposed that he arrested the accused Kuljinder vide arrest memo Ex. PW-5/B and interrogated the accused. After conducting his personal search memo Ex. PW-4/A he recorded his disclosure statement as Ex. PW-4/B, wherein accused disclosed that he was taken from Kalkata Airport to USA by Niharika Haider in October, 2001 under the name of Ali Haider and for this she had taken FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 5 of 18 a consideration. During police remand, the accused pointed out the house of Niharika Haider at D-73, Hauz Khas, Delhi. He deposed that the accused Niharika was not found in that house as she had vacated the premises. During investigation, he got confirmed the departure of accused from Kolkata Airport on 24/10/2001 and it was also confirmed that Ali Haider (real name Kuljinder) and Niharika Haider travelled together to USA by Thai Airways. He further verified from Thai Airways and found that both accused had travelled with same PNR number on adjacent seats. He also recorded the statement of Mr. Narulu of Thai Airways in this regard. During investigation, it was also found that absconding Niharika Haider was previously arrested and convicted in FIR Nos. 274/99 & 470/99 PS: IGI Airport. He stated that he opened the LOC of Niharika Haider and she was intercepted on 14/10/2004 at Mumbai Airport. He deposed that accused Niharika was arrested vide memo asEx. PW-5/A1 and her personal search was conducted vide memo as Ex. PW-5/B1 and after interrogation her disclosure statement was recorded vide memo as Ex. PW-5/C1 wherein she disclosed that she has only one son by the name of Zuhaib Haider and one daughter namely Nafisa @ Shefali. She had also disclosed that the passport of Ali Haider was seized by Kolkata Police when she was arrested at Kolkata Airport vide FIR No. 62/02. Thereafter, she was produced before the concerned Court and was remanded to JC. He stated that during investigation, he had retrieved the details of passport office which showed that the said passport was procured under the guardianship of Niharika Haider. The passport copy of Niharika Haider Mark X1 was placed for procuring the passport of Ali Haider. Though the said passport of Niharika Haider was showing that she has two sons Ali Haider and Zuhaib Haider but during investigation, it was found that she has only one son Zuhaib Haider and she had no son in the name of Ali Haider. He deposed that he collected the report from passport office in regard to Neha Mathur and Niharika Haider having different dates of birth to hoodwink the immigration. He stated that he collected the photocopy of the application form of Niharika Mathur alongwith the passport verification report as Ex. PW-1/A photocopies of which were Mark X2 and photocopy of application form of Ali Haider alongwith his passport verifaction report as Ex. PW-1/B and his application form as mark X3. He deposed that after recording the statement of witnesses and completion of investigation, he filed the chargesheet.
FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 6 of 18 In his cross-examination by Ld. Defence Counsel, Sh.
Satvinder Singh, He stated that he had not made any entry in the local police station Hauz Khas regarding the house search of accused Niharika. He deposed that during the search of house one Urmila Sharda met and informed him that Niharika (accused) had vacated the said house. He had not recorded any statement of said Urmila but the said fact was mentioned in the case diary. He deposed that he had also taken accused Kuljinder Singh to his house during the PC remand. He admitted that Ex. P-3 was filled up in two different hand writings. He had not obtained the handwriting of the pax for comparison. He admitted that the documents Ex. PW-9/A was not attested with the stamp of passport office. He voluntarily stated that the said documents were supplied by the passport office alongwith covering letter. He stated that he made efforts for inquiry from accused Niharika about the photograph affixed on Mark X-3 (Ex. PW-5/1) but she did not reveal anything on that point. He admitted that Mark X-1 was the copy of cancelled passport. He could not admit or deny that on the basis of photocopy of cancelled passport, no parent can get passport for his child. He deposed that he never investigated about that cancelled passport of accused Niharika. Voluntarily stated that passport office had supplied the complete copy of the passport of accused Niharika. He stated that he had not procured the embarkation card for visit of accused persons to USA from Kolkata Airport on 24/10/01. He denied the suggestion that both accused Niharika Haider and Kuljinder had never travelled together. He admitted that the photocopy of the passport of accused Ali Haider was supplied by local police at Kolkata and certified copy could not be supplied as the chargesheet of the case was already filed in the local court prior to sending of his letter. He denied the suggestion that no chargesheet was filed against accused Niharika Haider. He also denied that the photocopy of aforesaid documents was planted on accused by him. He denied that the pax had procured the passport from some other agent and accused Niharika Haider had no concern with the same. He admitted that he never contacted CO of Kolkata Airport for recording his statement. He also admitted that he had also not contacted the Investigation officer of the case lodged against accused Niharika at Kolkata.
He denied the suggestion that the entire story of the case against accused FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 7 of 18 at Kolkata is concocted and therefore, he had not filed any document viz. Copy of FIR, Recorded statement of either IO of the case or CO of Airport. He also stated that nobody had accompanied him to Mumbai when he had gone to take custody of accused Niharika Haider. He deposed that no local investigation was made by him at Mumbai. He denied the suggestion that accused Niharika Haider had been falsely arrested and implicated by him in the present case on the basis of disclosure of co-accused. He also denied that all the photocopies of documents were planted upon the accused Niharika. He denied that he had deliberately spared the real culprit who had facilitated the journey of co-accused Kuljinder Singh. He stated that no document was procured by him which could show that the pax Kuljinder Singh had departed alongwith accused Niharika Haider from Kolkata Airport. He also stated that he never attempted to procure the CCTV footage of the Airport of the relevant date to establish the identity of the accused persons. He admitted that he had neither examined the CO of the Kolkata Airport who had cleared the journey of accused persons nor he has shown the photograph of accused and pax Kuljinder Singh to verify the fact that whether both of them were cleared by him on that day. He denied the suggestion that he was deposing falsely.
(vi) PW-6 WASI Kala Joshi, No. 2426 D, PS: Hauz Khas was a formal witness, who proved the FIR No. 274/99 of PS: IGI Airport as Ex. PW-6/A.
(vii) PW-7 HC Jagdev Singh, No. 1609, North West, PS: Swaroop Nagar was formal witness, who proved the FIR No. 470/99 as Ex. PW-7/A and PW-11 HC Harey Ram, No. 172 C, PS: Pahar Ganj was also a formal witness and proved the carbon copy of the present FIR as Ex. PW-11/A and his endorsement on rukka as Ex. PW- 11/B.
(viii) Mr. Jagtar Singh, S/o. Sardar Udham Singh, Public witness has been examined as PW-8. He deposed that he was a retired Army personal and working as a farmer. He stated that he had two sons Sukhwinder and Kuljinder Singh and one daughter. He stated that accused Niharika was not known to him. He also deposed that he never met the accused Niharika and also does not know her address. He deposed that one of his relative Darbara Singh was FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 8 of 18 resident of Los Angles. He sent his son Kuljinder Singh after talking to him to America. However, initially his son was to be sent to England but he was sent to America and he did not know this fact. He stated that he had not paid anything in India to anyone, however, he paid money to his said relative for sending his son.
In his cross-examination by Ld. APP for State, He denied the suggestion that he had stated to IO that he had paid Rs. Eight lacs to accused Niharika for sending his son (accused) Kuljinder abroad. He denied the suggestion that he was introduced to (accused) Niharika by one Pal Singh resident of Pehwa. He also denied that he told that Niharika was residing at Hauz Khas and he used to meet her at the park behind her house. He also denied that accused Niharika had demanded Rs. 8 lacs from him and out of which some money was paid by his relative in Los Angles. The witness was confronted with the statement Mark A wherein it was so recorded.
This witness was also not cross-examined by Defence despite opportunity being given.
(ix) Mr. Ramesh Chothawe, Supdt., RPO, Mumbai has been examined as PW-9. He produced the record pertaining to verification of passport bearing no. B-0645721 in the name of Ms. Niharika Mathur for the year 2000 and deposed that the original records have been destroyed by the office as per the orders dt. 10.03.2008 passed by the Deputy Secretary (PV-I). Copy of the said order was proved as Mark 'A' and copy of verification report of passport was mark 'B'. The said verification was issued by the then Supdt. RPO, Mumbai and retained by the office. He admitted the contents of the report as correct and the said passport was issued on 17/08/1999 from Mumbai. He also produced and proved the letters for verification reports dt. 09/12/1999 & 15/01/2000 and copy of passport marked as B to E (Colly). He deposed after seeing the record that the passport bearing no. B-0645721 was issued in the name of Niharika Mathur, D/o. Sh. Hemender Mathur, R/o. Flat No. 1, Hemprabha, Marine Drive, Mumbai.
He also produced the original office file pertaining to the passport bearing no. G0450667 dt. 18/10/2006 which was issued in the name of Niharika Mathur and proved on record the copy of application form submitted by applicant as well as police report submitted with this form as Ex. PW-9/A and Ex.
FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 9 of 18
PW-9/B. He stated that the additional passport no. G0450667 was issued to Niharika Mathur on the basis of passport no. E1927318 dt. 28.05.2002 issued by RPO, Delhi. He deposed that Niharika Mathur had applied thrice for the extension of the validity of the said passport and proved the forms to that effect with her photograph as Ex. PW-9/C to Ex. PW-9/E. In his cross-examination by Ld. Defence Counsel, Sh.
Satvinder Singh, He admitted that he had not brought the original record with him as the same was destroyed and stated that he brought only the photocopy and not certified copy of the same. He denied that he had any personal knowledge of present case. He deposed that he did not know the name of the officer who allowed the issuance of the passport in name of Niharika Mathur. He denied the suggestion that he was deposing falsely on the instructions of senior officials.
(x) Mr. R. K. Mittal, Superintendent from the office of RPO, Chandigarh has been examined as PW-10. He proved the record pertaining to passport no. B-2769657. After seeing the verification report of passport no. B-2769657, he deposed that the same was prepared by Mr. Bidhi Chand, the then superintendent, RPO, Chandigarh and bears his signatures. He admitted the said report is correct and proved as Ex. PW-10/B. He also deposed as per the record that the aforesaid passport was issued in the name of Kuljinder Singh, S/o. Jagtar Singh, R/o. Kurukshetra.
This witness was also not cross-examined by Defence despite opportunity being given.
(xi) SI Apurba Lal Mazumdar, SCO, Kolkata Police (Presently posted at Special Cell, Immigration NSCBI Airport Kolkata) was examined as PW-12 he deposed that he had been deputed by Special Cell Incharge NSCBI Airport, Immigration Kolkata to depose in the Court. He produced the record pertaining to the departure of Haider Ali and Niharika Haider @ Neelu @ Niharika Mathur from India through NSCB International Airport, Kolkata. He deposed that as per the record on 29/06/2002 and on 07/09/2002 Haider Ali and FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 10 of 18 Niharika Mathur departed from India on the same flight no. SQ -415 and on 24/10/2001, Haider Ali and Niharika Haider departed from Kolkata by a flight No. TG-314. He admitted the details to be correct and duly attested by him and proved the same as Ex. PA-1 to PA-3. He also deposed that Niharika Mathur having passport no. E-1927318/Delhi and one Jagatranjit Singh @ Ali Haider, passport no. A-4384143/Delhi were apprehended at NSCBI Airport Kolkata and FIR bearing no. 62 dt. 16/11/2002 was registered at the concerned PS against them U/s. 419/468/471/120-B IPC and 12 PP Act.
In his cross-examination by Ld. Defence Counsel, Sh.
Satvinder Singh, PW-12 deposed that he had been working at NSCBI Airport Kolkata since 17/06/2010, however, he could not tell as to who was the Incharge of Immigration in the year 2004. He admitted that he has no personal knowledge about the present case. He was not aware whether any embarkation card or disembarkation card was asked by the police as he was not posted at that time there. Same was his reply/report regarding passenger manifest. He denied the suggestion that he had not brought the correct record of arrival/departure. He admitted that at the time of registration of FIR on 16/11/2002, he was not posted at the said place. He denied that he was deposing falsely.
(xii) Mr. Kaushik Chatterjee, Station Supervisor, IGI Airport, New Delhi has been examined as PW-13 and deposed that he was deputed by Station Manager Mr. Panatta, Thai Airways, to depose in the Court. After seeing the passengers manifesto of Thai Airways dt. 24/10/2001 pertaining to flight no. TG-0314, he deposed that the name of Ali Haider mentioned at serial no. 46 and name of Neha Mathur ( Mark + had been mentioned as the name was longer) mentioned at serial no. 166 in the said passengers manifesto. He also deposed that both passengers checked in together seated together as their seat no. 42 E and 42 D and even their code no. F-2 was same. He also stated that passenger manifesto was handedover to the Investigation Officer by Sh. Vicky Narula then working with the Thai Airways. He identified his signatures on the application at Point A. He proved the passenger manifesto issued by Airlines as Ex. PW-13/A. He also stated that said manifesto was also provided to the IO by the then FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 11 of 18 Station Supervisor Mr. Vicky Narula as IO moved an application for the same.
In his cross-examination by Ld. Defence Counsel, Sh.
Satvinder Singh, PW-13. He admitted that as per authority letter, he was authorized to represent his company in the present case and to provide the required information and he proved the said authority letter as Ex. PW-13/B. He stated that he was supposed to give the information/to elaborate about the passenger manifest before the Court. He admitted that Vicky Narula was still working at that time with the company. He admitted that the manifesto Ex. PW-13/A does not bear any stamp or signature of Airlines. He stated that no such mention was made when the same was handed over to the Police. However, voluntarily stated that the such manifesto was issued by Airlines (us). He denied the suggestion that the manifesto Ex. PW-13/A had no reference about the destination of the flight. He voluntarily stated that the flight was scheduled for Bangkok. He admitted that on Code no. F-2, as mentioned in manifesto Ex. PW-13/A, three passengers checked-in and their names were mentioned at serial no. 46, 166 and 192. He stated that there was possibility that passengers as mentioned at serial no. 46, 166 and 192 might not be related to each other. He volunteered that the PNR number of the air tickets of the passengers at serial no. 46, 166 and 192 was the same. He admitted that the manifesto Ex. PW-13/A had been placed before him on the said day only and at the time of handing over to the IO, it was not in his knowledge. He denied the suggestion that he had knowledge about the said manifesto and deposing falsely.
(xiii) Sh. Dalbir Singh, S/o. Sh. Nazar Singh, Aged about 67 yrs, R/o. Village Dana, Tehsil Batla, District Gurdaspur, Punjab has been examined as PW-14 and deposed that he was Sarpanch of his village in the year 1983. He had no knowledge of the present case. He had come to Delhi after 40 years. He admitted his address to be correct. He stated that he has not made any statement in any case to the police.
In his cross-examination by Ld. APP for State, He denied that he joined investigation in the present case and made the statement to the police FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 12 of 18 in the month of October, 2004. The statement Mark X was read over in toto to the witness. The witness however denied having made any statement before the police at any point of time. He denied that during his tenure as Sarpanch of his village due to enmity someone fired at him and due to said reason he left the country and went to Greece. He denied that due to overstay in Greece, he was deported to India with other 2-3 boys. He also denied that during his visits to passport office he met the accused, who was present in the Court. However special attention was drawn towards the accused by Ld. Substitute PP for the state. On this, he stated that he has seen the accused for the first time in the Court. He also denied that accused had assured him to arrange a visa for USA and for that purpose he had paid Rs. 50,000/- to the accused. He denied that he paid in total Rs. 8 lacs to the accused and the accused had issued a receipt of Rs. 5 lacs. He also denied that a receipt of Rs. 3 lacs was also issued by accused. He deposed that he did not know whether the accused had cheated number of persons on the pretext of sending them out of country. He denied the suggestion that he was deposing falsely in the court as he entered into a compromise with the accused out of court. He also denied the suggestion that he was deposing falsely in the court under pressure and threat. He also denied the suggestion that he was deposing falsely.
4. No other PW was examined by the prosecution and the PE was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
5. Statement of accused Niharika Mathur u/s 313 Cr. PC was recorded separately and all the incriminating material coming on record was put to her. She stated that she was falsely implicated and arrested in the present FIR. She stated that her disclosure statement was recorded by the IO in the police custody under threat and pressure. She stated that she has only son namely Zuhaib Haider and do not have any son in the name of Ali Haider. She also stated that she got her first passport issued in her maiden name as Neha Mathur and after that second passport was issued after her marriage in the name of Niharika Haider having the sir name of her husband. She also stated that after divorce from her husband, she again adopted her previous sir name as Mathur and this fact was recorded with the concerned Govt. Office and RPO concerned.
FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 13 of 18 All the witnesses who deposed against her were interested witnesses. She declined to lead DE.
6. I have heard final arguments on behalf of parties and perused the record.
Before appreciating the evidence coming up on record, I find it relevant to refer to the provisions for the offences, which the accused has been charged with.
Section 420 IPC Provides:
Cheating and dishonestly inducing delivery of property:
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]:
Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
Section 120A.
Definition of Criminal Conspiracy :- When two or more persons agree to do, or cause to be done:-
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation:- It is immaterial whether the illegal act is the ultimate object FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 14 of 18 of such agreement, or is merely incidental to that object.
7. The allegations against the accused persons are that they both entered into a criminal conspiracy wherein it was agreed that the accused Niharika Mathur will facilitate journey of co-accused Kuljinder Singh by providing him forged documents.
In this regard, the Hon'ble High Court of Gujrat in case of Kavit Vs. State of Gujrat High Court, while acquitting the accused persons had observed that to prove the commission of offence of 'criminal conspiracy' the prosecution was required to prove that there was a meeting of minds between the conspirators to do an illegal act and mere fact that they had made a confession or disclosure wherein they had allegedly confessed that they had entered into a criminal conspiracy to procure counterfeit currency notes was not sufficient to establish a charge.
It was further observed that "to prove the criminal conspiracy, the prosecution must establish that there was meeting of minds between two persons to do an unlawful act. It is very difficult to get direct evidence to prove criminal conspiracy and it can be proved only by circumstantial evidence. However, it is not sufficient in order to convict a person under this section, merely to prove that he had been associating with the other accused at a certain place and on his arrest endeavoured to extricate himself from being accused of some thing connected with the conspiracy; and the prosecution cannot complete what is necessary in order to show that he was a person who concerted with others by proving that he was friendly with the other accused and was anxious to escape observation or even was doing his best to conceal his whereabouts. In cases of FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 15 of 18 conspiracy, the agreement between the conspirators cannot generally be directly proved, but only inferred from the established facts in the case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raise a presumption of an agreement and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. But the criminality of the conspiracy is independent of the criminality of the overt act. To prove conspiracy it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all."
8. To bring home conviction against the accused the prosecution has to prove that both the accused Kuljinder and Niharika Mathur entered into a criminal conspiracy wherein the accused Niharika Mathur was to facilitate the journey of the accused Kuljinder and in furtherance of the same on 29/07/2004 the accused Kuljinder produced one passport No. B2769657 issued at Chandigarh before the Immigration officer wherein on scrutiny, it was found that the departure stamp used on the passport was a forged one. To prove its case, it was incumbent upon the prosecution to prove the departure of both the accused from India on 24/10/2001.
9. The IO SI Afsar Raza, who has been examined as PW-5 has deposed that he confirmed the departure of the accused from Calcutta Airport on 24/10/2001 in the name of Ali Haider and Niharika Mathur, however at no point of FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 16 of 18 time the original passport of accused Ali Haider has been seized by the IO. He also admitted in his cross examination that he has not examined the CO at Calcutta Airport who had cleared the journey of accused persons. Neither he has shown any photograph of the accused persons to verify whether both the accused were cleared by him on that day for their departure. He admitted that he has never made investigation about the cancelled passport of the accused Niharika. He also stated that he had not procured the embarkation card for visit of accused persons to USA from Calcutta Airport on 24/10/2001. He further admitted that he could not procure a certified copy of the passport of the accused Ali Haider as already chargesheet was filed in the local Court in Calcutta. The IO has failed to furnish on record any details like copy of FIR, recorded statement of the witnesses or of the CO of the Airport to prove the logic of the case against the accused persons in Calcutta. He admitted that he could not procure any document which could show that the accused Kuljinder had departed alongwith accused Niharika from the Calcutta Airport. He even admitted that he did not procure the CCTV footage of the Airport on the relevant date which could have established the identity of the accused persons travelling on the said date. Even he admitted he had not obtained specimen handwriting of the person.
10. Further PW-8 Mr. Jagtar Singh has totally turned hostile to the case of the prosecution. He has categorically denied that he has ever stated to the IO that he paid Rs. 8 lacs to the accused Niharika for sending his son Kuljinder abroad. Further more, PW-14 Mr. Dalbir Singh had also turned hostile and has not supported the case of the prosecution at all. He denied having made any statement to the Police in the present case. Furthermore, no witness from RPO has deposed anything about the photocopies of the application forms in the name of Ali Haider placed on record which could have proved that these forms were having the photographs of Kuljinder Singh or Ali Haider. The IO has failed to disclose any source as to how and from where he obtained the photocopies of the application forms with the documents which were in the name of Ali Haider allegedly having the photographs of Kuljinder Singh.
11. Other witness PW-5 has deposed only about one copy of passport of Niharika Haider produced on record as Mark X-1 used for procuring the FIR NO.: 343/2004 POLICE STATION: IGI Airport U/S: 419/420/468/471/120 B and 12 PP Act. 17 of 18 passport of Ali Haider. However, the said passport is a cancelled passport but no documentary proof however, placed on record so as to prove how and when this passport was used while the same has already cancelled.
12. Further the prosecution in my considered view has failed to bring on record any evidence to show that the accused Niharika Haider was having only one son namely Zuhaib Haider and not any other son in the name of Ali Haider. The IO has failed to collect and place on record any documentary proof which could have proved that the accused Niharika Haider was having only one son.
13. Furthermore, as per PW-12 one Jagtaran Jeet Singh was found travelling on the passport which was actually in the name of Ali Haider and he was apprehended and arrested in case FIR No. 62/02 U/s. 419/468/471/120B IPC and 12 PP Act. In such circumstances, it was necessary for the prosecution to prove the identity of the passenger /accused so as to ascertain who was travelling on the passport in the name of Ali Haider whether it was Kuljinder or Jagtaran Jeet Singh, although as to on what time and what place and from which Airport. The prosecution in my considered view has totally failed to prove the identity of the passenger so as to confirm/ corroborate the allegation of use of passport in the name of Ali Haider by the accused Kuljinder Singh.
To prove the conspiracy between two accused persons the prosecution has examined two public witnesses namely Jagtar Singh and Dalbir Singh, however, both the witnesses have turned completely hostile. The prosecution has failed to establish connection between the accused and the alleged conspiracy. The separate acts of different conspirators which are overt acts of the different individuals is insufficient to prove conspiracy in the present case.
In view of the above discussions, the prosecution has totally failed to prove its case beyond reasonable doubts and the accused Niharika hence stands acquitted. Her bail bonds stand cancelled. File be consigned to Record Room.
Announced in the open
Court on 30th April, 2013 SUDESH KUMAR
ACMM-01/New Delhi District
Patiala House Courts, New Delhi
This judgment contains 18 pages and each paper is signed by me.
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