Delhi District Court
State vs Bijender Singh on 3 November, 2020
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL,
ACMM (NORTH-WEST) ROHINI COURTS, DELHI
FIR. No. : 580/2005
Case No. : 533573/2016
PS. : Ashok Vihar
Offence Complained of : 170/419/420/468/471/120B IPC
Date of commission of offence : On various dates in Year 2004
JUDGMENT
1. Sh. Mewa Lal S/o Sh. Shiv Ratan,
2. Sh. Rajesh Kumar S/o Sh. Gajadhar &
3. Sh. Shamsher S/o Sh. Nand Lal All R/o A-86/3, Tea Shop, Opp. Mother Dairy, Industrial Area Wazirpur, Delhi.
..............COMPLAINANTS Bijender Singh S/o Sh. Naim Singh R/o 259B, Gali No.1, Azad Nagar, Near G.K. Welham School, Moradabad, Uttar Pradesh ........................ACCUSED Date of Institution : 01.04.2006 FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.1 of 28 Digitally signed by ATUL Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:11:19 +05'30' Plea of the accused : Pleaded not guilty Date of reserving judgment/order : 13.10.2020 Date of pronouncement : 03.11.2020 Final order : Convicted Brief reasons for the decision of the case: -
1. In brief, the story of the prosecution is that somewhere in February-March 2004, one Chiranji Lal met complainants Mewa Lal, Shamsher and Rajesh Kumar, at the tea stall of one Gajender (father of Rajesh Kumar), situated at Wajirpur Industrial Area, Delhi and convinced them that he will secure a job in Railways, for all of them. Chiranji Lal produced his Identity card pertaining to his job as driver in Indian Railways and told the victim that he could fix a meeting with Railway Inquiry Inspector. Subsequently Chiranji Lal took them to Old Delhi Railway Station where Bijender Singh was introduced as Railway inquiry inspector, to the victims. In the pretext of getting a job for them, accused Bijender and accused Chiranji Lal took money from the victims, at regular intervals. Mewa Lal paid approx.
Rs.1,50,000/-, Shamsher paid Rs. 90,000/- and Rajesh Kumar paid Rs.80,00/- to the accused persons. The accused persons kept on assuring them about progress in appointment and one Uttariya Railway Mazdoor Union (URMU) card was handed over to Mewa Lal and Northern Railway Men's Union (NRMU) cards to Shamsher and Rajesh Kumar, were also handed over, by the accused Bijender. Later on, the victims realized that they had been cheated and Bijender Singh was merely a driver in Railways and not an inquiry officer and no job had been secured for them.
Digitally signed by ATUL
ATUL KRISHNA KRISHNA AGRAWAL
AGRAWAL Date: 2020.11.03
18:13:19 +05'30'
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.2 of 28
Date of Decision :- 03.11.2020
2. After much efforts by the victims, the present FIR was registered on 07.09.2005 u/s 419/420/468/471/120B IPC against the accused persons on the joint complaint of Mewa Lal, Shamsher and Rajesh Kumar. During investigation, only accused Bijender Singh was arrested. Co-accused Chiranji Lal became absconding and was never arrested. After completion of investigation, Charge sheet was filed only against accused Bijender for the offences punishable u/s 170/419/420/468/471 IPC r/w 120B IPC on 01.04.2006.
3. Copy of charge sheet was supplied to the accused free of cost U/s 207 Cr.P.C. Charge was framed against the accused only for offences punishable u/s 120B IPC and u/s 170/419/420 r/w 120B IPC on 19.01.2010 to which he pleaded not guilty and claimed trial.
4. During PE, 06 witnesses were examined on behalf of prosecution.
5. PW-1 is HC Bjinder Singh, who deposed that on 07.09.2005, he was posted at police station Ashok Vihar and working as a Duty Officer. At about 8:10 PM, he received one rukka through DCP office by Dak for the registration of the case and accordingly, he registered the present FIR and also made endorsement on the original rukka. The carbon copy of FIR is Ex.PW-1/A and endorsement is Ex.PW1/B.
6. PW-2 in one of the complainant namely Mewa Lal. He deposed that in the year 2004, he used to reside with his uncle in Wajirpur Industrial Area (WPIA for short), Delhi and was doing a private job. His uncle namely Gajadhar, used to run a tea shop in WPIA. One person namely Chiranji Lal Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:13:34 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.3 of 28 Date of Decision :- 03.11.2020 (co-accused) used to visit the tea shop of his uncle for having tea. He (PW2) met said Chiranji Lal first time at the said tea shop of his uncle on 16.02.2004. Chiranji Lal told him that he was working as driver in railways and could get PW2 employed with railways. When PW2 asked him to show any document regarding his employment with Railways, then Chiranji Lal produced his Identity card pertaining to his job as driver in Indian Railways. Chiranji Lal told him that he could fix a meeting with Railway Inquiry Inspector. After a week of 16.02.2004, Chiranji Lal took PW2 to the office of said railway inquiry inspector, situated at Old Delhi Railway Station. Chiranji Lal introduced accused Bijender before PW2 as railway inquiry inspector. (the witness correctly identified accused Bijender in the court). Accused Bijender assured PW2 that he could get a job for him in railways.
7. PW2 further deposed that he was accompanied by his cousin namely Rajesh Kumar and Shamsher Singh (son of his mausa ji), when he visited the office of accused Bijender with Chiranji Lal. Accused asked him to give Rs.90,000/- per person for getting job in railways. Thereafter PW2 contacted his relatives to collect money and also sold his field for arranging cash and took loan from relatives and then arranged Rs.90,000/-. The witness further deposed that in the month of March, 2004, he alongwith his uncle, Rajesh Kumar, Shamsher Singh and Chiranji Lal again went to the office of accused at Old Delhi Railway Station and gave part payment of Rs.30,000/- to accused Bijender for getting job in railways. Accused took out one service book and affixed his (PW2's) photograph on one page of the book and told him that he (accused) would deposit the said book in railways, in back date. After about 10 days, PW2 alongwith Chiranji Lal, FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.4 of 28 ATUL Digitally signed by ATUL KRISHNA Date of Decision :- 03.11.2020 KRISHNA AGRAWAL Date: 2020.11.03 AGRAWAL 18:13:51 +05'30' again came to the office of accused and again gave Rs.30,000/- to accused Bijender, who told him that the money was required to be given to inquiry inspector who would conduct inquiry of him. In the month of April, Chiranji Lal told PW2 that accused was asking to give further Rs.15,000/- for getting him medically examined. Accordingly, PW2 again went to the office of accused Bijender and gave cash of Rs.15,000/- to him. Accused informed PW2 that he would be medically examined after 15 days, however he was not got medically examined. PW2 requested accused for getting him medically examined upon which accused told him that his medical examination had already been conducted and he (PW2) would be given joining letter very soon and further asked him to give cash of Rs.15,000/-. Accordingly, he gave Rs.15,000/- to accused.
8. The witness further deposed that he alongwith Chiranji Lal and his uncle, again went to New Delhi Railway Station where accused met them. Accused told him that all the formalities had already been completed and he would be joined at the post of Attendant within one month. Accused also showed him some documents pertaining to his inquiry report, medical examination, etc. In the month of May, 2004, PW2 was asked to come at Baroda House by accused, where accused showed him his joining letter. Accused informed him that there was no vacancy at the post of Attendant at that time, so he could not join him. Accused however also told him that one person namely Ganga Ram was going to retire in the month of June, 2004, then PW2 could be taken into employment on his post. However he could not get any job in railways and accused kept on assuring him that he would get job after one month or 15 days etc. The witness further stated that he had talked to accused on telephone on the number given to him by FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.5 of 28 Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL Date of Decision :- 03.11.2020 AGRAWAL Date: 2020.11.03 18:14:07 +05'30' accused. Accused informed him that he was going to West Bengal for some official purpose and he would give PW2 the joining letter, after returning from there.
9. Thereafter in the winter season, accused called him in his office at Old Delhi Railway Station and gave him one card of North India Railway reflecting his name and his photograph was also affixed on that card. Accused told him that this was PW2's identity card and he could travel anywhere in India by railway. He again requested accused for job, upon which accused told him that he would be getting joining in Roorkee, after one month but he could not get any job in railways. As per the witness it was then that he realized that he was cheated and would not get any job. Then he met Chiranji Lal and asked him to provide job, upon which Chiranji Lal asked to give further Rs.20,000/- which he gave to Chiranji Lal but he could not get any job. Then in the month of February, 2005, he made PCR call. Police came in WPIA and he and Chiranji Lal were both taken to police chowki of WPIA. His statement was recorded by HC Narender, however no action was taken on his complaint. Then he went to the office of ACP, Ashok Vihar and also visited the office of DCP and in this way 3/4 months passed but no action was taken by the police. As per the witness, like him, Rajesh and Shamsher had also given money to accused persons on the pretext of job and they were also cheated. He alongwith Rajesh and Shamsher went to the office of Crime Branch and made complaint to the ACP, Crime Branch (Satarkata Vibhag), which is Ex.PW2/A. As per the witness, he had given cash of Rs.1,50,000/- approximately to both the accused persons. He also handed over the I-Card (which was given to him by accused) to police during investigation which FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.6 of 28 Digitally signed by ATUL Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:14:22 +05'30' was taken into police possession vide seizure memo Ex.PW2/B. The Card issued by U.R.M.U. in the name of witness, which was given to witness by accused, is Ex. P1. The witness further stated that he did not have the original complaints which were filed by him in the office of DCP and SHO, prior to filing of complaint Ex.PW2/A. The photocopies of these two complaints are marked Mark A1 and A2.
10. PW-3 is Rajesh, who deposed that in the year 2004, his father used to run a tea shop in Wajirpur Industrial Area, Delhi and accused Chiranji Lal also used to visit the said tea shop. Chiranji Lal informed him, Mewa Lal and Shamsher that he could get job for all of them in Indian Railways. Chiranji Lal told PW3 that he could be employed as "Waterman" in railways through his associate Bijender, who was already in service with railways as inquiry inspector. Accused Chiranji Lal projected himself as 'rail driver'. Chiranji Lal took him to the rest room of accused Bijender situated at Old Delhi Railway Station, probably in the month of November, 2004. He met accused Bijender there and at that time, no one else except accused Bijender, Chiranji Lal and PW3 were present there. Accused Bijender informed him that he could arrange a job for him (PW3). When PW3 asked him to show any document of himself, then accused produced his identity card. Both the accused persons asked him to give Rs.20,000/- for getting job. As per the witness, he had brought cash on that day as Chiranji Lal had already asked him for arranging cash and so, he gave cash of Rs.20,000/- to accused Bijender on asking of accused Chiranji Lal. On the same day, accused Bijender gave a U.R.M.O. card in his name to PW3 after signing the same. On asking of accused Chiranji Lal, PW3 gave his photograph to him which was pasted by Chiranji Lal on the said U.R.M.O. card.
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.7 of 28
ATUL Digitally signed by
Date of Decision :- 03.11.2020 ATUL KRISHNA
KRISHNA AGRAWAL
Date: 2020.11.03
AGRAWAL 18:14:37 +05'30'
11. The witness further deposed that he had met accused Bijender only on two occasions. At first time, he met him at the tea shop of his father and thereafter he visited his rest room and gave cash of Rs.20,000/- to him. As per witness, he gave total amount of Rs.80,000/- to 90,000/- in this regard and the rest of the amount was given to accused Chiranji Lal on asking of accused Bijender, by his (PW3's) father, for arranging his job. However acccused Chiranji Lal kept delaying the matter on one pretext or the other. Accused persons neither arranged job for him nor returned his money. Then, he, Mewa Lal and Shamsher made efforts to approach police for filing of complaint and went to Police Post Wajirpur for filing the complaint and met HC Narender. However no action was taken by the police and they were advised to approach PS Tilak Marg. They also met DCP and were asked to file complaint with PS Ashok Vihar. So in this way, they had to run from one pilar to other for filing of the complaint and ultimately they filed the complaint at PHQ, ITO, New Delhi. The U.R.M.O. card of PW3 (given by accused) was taken into police possession vide seizure memo Ex.PW3/A. The membership card no.105869 which was given to him by accused Bijender and produced by him before police, is Ex.P-2. The witness correctly identified the accused.
12. PW-4 Shamsher, the third complainant in the matter, deposed that in the year 2003 or 2004, he alongwith his aunt (Mausi) came to Delhi from village. At that time his uncle used to run a Tea Shop at A-86/3, in front of Mother Dairy, Wazirpur. He started residing with his uncle Gajadhar in his jhuggi. PW4 did not remember the exact date/month when accused Chiranji Lal met him at the tea shop of his uncle. He further deposed that Chiranji Lal introduced himself as driver working with Indian Railways.
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.8 of 28
Digitally signed by ATUL
Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL
AGRAWAL Date: 2020.11.03
18:14:50 +05'30'
He further informed that he had been suspended by the Railways but he was having good relations with enquiry inspector, working with railways and he (Chiranji Lal) could get PW4 employed at the post of waterman with Indian railways. Accused Chiranji Lal had already told this fact to his (PW4's) cousins namely Mewa Lal and Rajesh regarding securing employment in railways, even for them. Thereafter, accused Chiranji Lal took him, Mewa Lal and Rajesh to Baroda House where Chiranji Lal took them in one room where one person alongwith his attendant was present. Witness pointed towards accused Bijender as the same person, who alongwith one attendant met them in the said room.
13. The witness further deposed that accused Chiranji Lal introduced accused Bijender as enquiry inspector and informed his name as Bijender. Accused Bijender showed his identity card and stated that he was a government employee and working with railways. Accused Bijender told them that he could get them employed at the post of Gardner/Water Man, etc. and demanded Rs.60,000/-. PW4 agreed to the proposal of accused however, he stated that he could not pay the aforesaid amount in lump-sum. Accused Chiranji Lal was continuously in touch with them and he used to meet them at the tea shop of his uncle. One day, he alongwith Mewa Lal and Rajesh again visited Baroda House for giving money to accused for getting employment and gave cash of Rs.20,000/- to accused Bijender and similarly some amount was also given by Rajesh and Mewa Lal to him. Accused Bijender did not give any receipt of the aforesaid amount to him. On the second occasion, he again gave cash of Rs.15,000/- to accused and in this manner, total cash of Rs.90,000/- was given to accused Bijender and on some occasions, accused Chiranji Lal was also accompanying them at FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.9 of 28 Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL Date of Decision :- 03.11.2020 AGRAWAL Date: 2020.11.03 18:15:06 +05'30' that time.
14. The witness further deposed that accused Bijender gave him one membership card allegedly issued by Railways, on which the words "U.M.R.U." were printed. Accused Bijender told him that he had been employed at the post of water man from Roorki. Accused Bijender however asked him to wait as it might take 1-2 years in calling him for joining. As per the witness, he waited for one year for receiving the joining letter but no such letter was handed over by any of the accused to him. The witness further deposed that accused Bijender had already taken cash of Rs.90,000/- from him on one pretext or other, like issuance of appointment letter, his medical examination, etc. He was continuously asking accused Chiranji Lal to fix meeting with accused Bijender but he was avoiding the same on one excuse or the other. PW4 also talked to accused Bijender on his mobile number. When PW4 asked accused Chiranji Lal to make it clear as to whether he would be getting job or not, accused Chiranji Lal gave him the telephone number (landline) of accused Bijender. They (the complainants) again contacted Chiranji Lal and offered him more money for securing job for them.
15. The witness further deposed that one day at about 10:40 A.M., on their offer of giving more money, accused Chiranji Lal came at the tea shop of his uncle. A PCR call was made, police came and took all of them to police chowki. They told all the facts to police official namely Narender, who also talked to accused Bijender on his mobie phone. However, accused Bijender refused having received any money in the name of securing emloyment for them. After talking with accused Bijender, the said police official Narender Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:15:24 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.10 of 28 Date of Decision :- 03.11.2020 let off accused Chiranji Lal and no action was taken on their complaint. Thereafter, complaint was made to senior police officers like ACP, DCP. He also produced the membership card which was given by accused Bijender to him and which was seized by police vide seizure memo Ex.PW4/A. The said membership card is Ex. PX. The witness alleged that accused Bijender had cheated him and had taken Rs.90,000/- from him but he neither returned the said amount nor could secure any employment for him.
16. PW-5 is Ct. Randhir. He deposed that on 15.09.2005, he was posted at SIT Crime Branch, Amar Colony. On that day, he joined the investigation of the present case with IO/SI Ashok Kumar. They went to A-86/3, Wazirpur Indl. Area and opposite the said factory, they met complainant Shamsher Singh, who was standing near the tea stall. The complainant handed over one diary to IO which was taken into possession vide siezure memo Ex.PW5/A. On 17.12.2005, he alongwith IO again went to the spot where the complainant handed over two cards/passes of Northern Railway Union Member, Baroda House, which were taken into possession by IO vide ExPW4/A and Ex.PW4/B. On 01.02.2006, he and IO went to the house of accused Bijender Singh, at H.No.259, B, Azad Nagar, Muradabad, alongwith the staff of local PS. The intimation in this regard was given to the concerned official at Muradabad Railway Station as the accused was posted there. At the above mentioned address, accused Bijender Singh was found and he was brought to Delhi. On the next day, complainant Shamsher Singh came their office and identified the accused. Accused Bijender was arrested and personally searched vide memos Ex.PW5/C and Ex.PW5/D respectively. His disclosure statement was recorded by IO vide FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.11 of 28 Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL Date of Decision :- 03.11.2020 AGRAWAL Date: 2020.11.03 18:15:42 +05'30' Ex.PW5/E.
17. The witness further deposed that on 04.02.2006, he, IO SI Ashok and accused went to house of accused and a search was made there to recover the money which was collected by accused, by cheating the complainant however, nothing was recovered from there. The search was made in the presence of neighbour of accused vide memo Ex.PW5/F. The accused also led them to Gajrola near Muradabad to get the co-accused apprehended but in vain and thereafter, they also went to other hideouts at Delhi however, they could not trace out the other associates of accused and hence, returned back to the office. The attention of witness was drawn towards the diary, membership card and entry pass which were available on record and the witness correctly identified them (the cards had already been exhibited, the entry pass was marked as Ex. PW3 and the diary as Ex.P4). The accused was correctly identified by the witness.
18. PW-6 is IO/Inspector Ashok Kumar. He deposed that on 09.09.2005, he was posted at SIT Crime Branch, Amar Colony. On that day, the investigation of the present case was handed over to him. On 15.10.2005, he went to the tea shop belonging to father of one of the complainant namely Rajesh, situated at WPIA, Delhi. After reaching there, Shamsher handed over one diary and he seized the same vide seizure memo Ex.PW5/A. He recorded the statement of complainants Mewa Lal, Shamsher and Rajesh Kumar on different dates. On 17.12.2005, he seized the membership card of complainants vide seizure memos Ex.PW2/B, Ex.PW3/A and Ex.PW4/A. He also seized entry permit vide seizure memo Ex.PW3/B. The witness further deposed that on 01.02.2006, he searched Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:15:57 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.12 of 28 Date of Decision :- 03.11.2020 for the accused Bijender in the area of Muradabad in U.P. where the accused was residing, with the help of the local police official. They apprehended accused vide arrest memo Ex.PW5/C, personal search memo Ex. PW5/D and recorded his disclosure statement Ex.PW5/E.
19. The witness further deposed that he produced the accused before the court and took his remand for three days and he alongwith accused Bijender Singh Rajpoot, went Gajraula, U.P. in the search of co-accused Chiranjee Lal, however, co-accused was not traceable at that time. He also took out search of the house of accused vide search memo which Ex.PW5/F. They returned back to Delhi and made search of the co-accused in the area of Jhuggi Shahid Nagar but to no avail. During the investigation, Sec 170 IPC was added in the present case. He further made request to FSL Forensic Science Lab, to verify the signature of accused Bijender Singh Rajpoot, on various documents. He collected the FSL result and placed the same in the file. Accused Bijender Singh was correctly identified by the witness. As regards accused Chiranji, witness stated that he was P.O. As per PW6, he also recorded the statements of witnesses. The three membership cards, Ex.P1, Ex.P2 and Ex. PX and seized diary were correctly identified by the witness. The dairy is Ex. P6/1, the Entry permit is Ex.P6/2.
20. No other witness was examined and thereafter PE was closed.
21. Statement of accused u/s 313 Cr.P.C. was recorded on 05.09.2018 wherein he denied the prosecution evidence against him. The accused alleged that he was falsely implicated in this case since his name resembled with Bijender Singh Rajpoot and the IO did not Digitally bother to make inquiry signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:16:11 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.13 of 28 Date of Decision :- 03.11.2020 regarding his identity from his department. Accused preferred to lead DE.
22. During defence evidence, two witnesses were examined by the accused.
DW-1 is Premjeet Kumar, Office Suptd., Legal Cell, DRM Office, Muradabad. He brought the service record of Vijender Singh (stated to be accused herein) S/o Sh. Nem Singh R/o H.No. 259/B, Azad Nagar, Gali No.1, near G.K. Welhem College, Railway Harthala Colony, Muradabad, U.P. As per the record, Vijender Singh retired as loco pilot (male) under working SSC, Loco Muradabad, U.P. on 30.09.2014. The witness also brought the original particulars of service record of Vijender Singh S/o Nem Singh. He also brought the details of family members record of Vijender Singh alongwith photographs. The witness further stated that as per the record, Vijender Singh was Kushwaha (Thakur) by caste, as mentioned in the service book. The first page of service book of accused is Ex. DW1/A, the family details of accused running into two pages, is collectively Ex. DW-1/B. In all the records of Vijender Singh in his service book, his name was no where mentioned as Bijender Singh Rajpoot.
23. DW-2 is Abdul Wali Farooqui, Commercial Officer, BSNL, Muradabad.
He brought the record of landline number 05912430957, which was registered in the name of Sh. Nitesh Kumar S/o Vijender Singh, R/o Azad Nagar, Gali No.1, Viraj Palace, Muradabad, U.P.-244001. He also brought the original application form for said telephone connection, nomination form, affidavit, demand note, receipt and telephone advise note and written copy of application and the copy of online record of telephone connection. As per the witness, all these documents were filed by Nitesh Kumar and after verification of documents, the numberDigitally i.e.signedlandline by ATUL number ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:16:27 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.14 of 28 Date of Decision :- 03.11.2020 05912430957 was allotted to the applicant Nitesh Kumar. The attested photocopy of all the abovesaid documents was exhibited as Ex.DW2/1 (Colly.).
24. Thereafter DE was closed. Final arguments were heard from both sides, at length.
25. I have now duly considered the arguments advanced before me and also carefully perused the evidence on record.
26. In the instant case, the accused has been charged for offences punishable u/s 120B IPC and U/s 170/419/420 IPC r/s Sec 120B IPC. The said sections read as under:
120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
170. Personating a public servant.--Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:16:42 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.15 of 28 Date of Decision :- 03.11.2020 and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
419. Punishment for cheating by personation.--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420. 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.
27. The question before this court is whether on the basis of evidence on record, the prosecution has been able to prove its case beyond reasonable doubt or not?
28. In Rabindra Kumar Dey vs State of Orissa 1977 AIR 170 it was held by Hon'ble Supreme Court that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty and this onus of the prosecution never shifts. Now I shall proceed with appreciation of evidence in the light of ratio of the aforesaid judgment.
29. Perusal of the evidence on record shows that the prosecution has examined six witnesses to prove its case. PW1 is the Duty Office, who registered the present FIR and is a formal witness. PW2 to PW4 are the three FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.16 of 28 ATUL Digitally signed by ATUL KRISHNA Date of Decision :- 03.11.2020 KRISHNA AGRAWAL Date: 2020.11.03 AGRAWAL 18:17:16 +05'30' complainants/victims in this case and all of them are material witnesses. PW5, the police constable and PW6, the IO of this case, are the police officials, who were involved in the investigation of this case suchas recording of statement of witnesses, the arrest of accused and seizure of documents and their testimonies are corroborating evidence in this case. However, the prosecution's case almost entirely relies on the testimonies of PW2 to PW4 (also referred as "victims" henceforth), to prove this case.
30. Perusal of testimony of PW2 to PW4 shows that they have given a detailed narration of facts, i.e. the place where they met the co-accused Chiranji Lal (since not arrested) and then present accused Bijender, the manner in which accused Chiranji Lal convinced them about securing jobs for them in Railways, the deception that Chiranji Lal played upon them and introduced accused Bijender as inquiry officer in Railways and the cunning manner in which the victims were asked to make payments at different stages i.e., after initial payments, the accused persons asked victims for different sums for different stages such as for conducting of employee inquiry before alleged appointment, then for managing their medical examination, thereafter for handing over appointment letter and so forth. Subsequently, forged UMRU and NRMU membership Cards Ex. P1, Ex. P-2 and Ex. PX respectively, were also handed over to the victims, on the pretext of appointment letters, so as to convince them about continuous progress in their matter of appointments to railway service. Each of these acts of deception, were carried out under a well-planned conspiracy and in a professional manner, so that the victims could not suspect any foul-play, till the last stage. The testimonies of PW2 to PW4 appear convincing and gives a clear indication of them being cheated in a well-crafted manner, FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.17 of 28 Digitally signed by ATUL Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:17:31 +05'30' with similar modus operandi.
31. Now I will straightaway deal with the various defences taken on behalf of accused, by the Ld. Defence Counsel at the time of final arguments. During this discussion, I will also appreciate and evaluate the evidence led on behalf of prosecution and defence.
32. The first and foremost defence on the part of the accused was with respect to the identity of the accused. The Ld. Defence counsel vehemently argued that the present accused was Vijender Singh and not Bijender Singh Rajpoot as referred by the victims as well as the prosecution. It was further argued that the accused was by caste a "Kushwaha" and not a "Rajput". Reliance was placed on the testimony of DW1 in this regard. It was further argued that no TIP of accused was conducted to determine his identity, at the stage of investigation. On the other hand, Ld. APP argued that the accused was named in the FIR and his identity was never an issue. Further he was correctly identified by all the prosecution witnesses.
33. Having perused the evidence on record, in my considered opinion, there is no force in the arguments of defence counsel. It appears correct that the actual name of accused is Vijendra Singh and not Bijender Singh or Bijender Singh Rajpoot, as mentioned in the chargesheet. However it has been rightly pointed out by Ld. APP that the accused was named in the FIR, though as Bijender Singh. Further he has been correctly identified by all the victims in the court. It can further be seen that in the complaint Ex. PW2/A, the complainants have further stated that later on, they came to know that accused Bijender was infact driver in Railways, at Muradabad, Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:17:48 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.18 of 28 Date of Decision :- 03.11.2020 UP and the accused herein, was also Railways train driver at Moradabad, during the relevant time. This further establishes his identity.
34. As regards non-conduction of TIP is concerned, the same does not appear necessary in this case. TIP is necessary when the victim does not previously know the accused and may have seen the accused only momentarily, at the time of commission of an offence and when an accused is apprehended on the basis of suspicion. However in this case, the accused met the victims many times and also took money on various occasions, on the pretext of helping them to secure employment. The victims also came to know that the accused was resident of Moradabad and working as Railways driver. So, the victims knew about the accused very well.
35. In Md. Kalam v. State of Rajasthan, AIR 2008 SC 1813 , it was held that the whole idea behind TIP is to test whether or not the witness who claims to have seen the culprits at the time of occurrence/commission of the offence, is thoroughly reliable and can identify the culprits from midst of other individuals without any aid and/or other source. TIP is conducted to test the veracity of the witnesses who claim to have seen the culprits committing the offence. Further, in the case of, Ramesh Kumar v. State of Punjab (1993) Cri L.J. 1800 (SC), it was held that, there is no need for identification parade where the witnesses already knew who the assailants were. TIP is not a sine qua non in every case, that is, if the facts and circumstances of a case conclusively establish the guilt of the accused, then, there is no need to hold TIP. So, in the present case, TIP of accused was not necessary.
ATUL Digitally signed by
ATUL KRISHNA
KRISHNA AGRAWAL
Date: 2020.11.03
AGRAWAL 18:18:06 +05'30'
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.19 of 28
Date of Decision :- 03.11.2020
36. The defence also fails to explain as to why these three victims wanted to falsely implicate the accused and get him punished without any animosity as he was correctly identified in court. Infact, the victim of an offence would invariably want the actual offender to be punished and not some innocent person, who is not even previously known to him or had any enmity towards him. Even otherwise, as this case pertains to cheating, it is quite natural that the accused would not like to meet the victims with his actual name and designation but with a fake name and designation, so that his identity cannot be established and he may escape the process of law. Hence, for above reasons, I do not find any force in the contentions of Ld. Defence Counsel.
37. The second defence on the part of accused was that the landline phone number bearing no.05912430957 as mentioned in complaint Ex. PW2/A, which the complainants allege to be belonging to accused, did not actually belong to accused but to some other person namely Nitesh Kumar. DW2 was examined to prove this fact. It was contended that even this fact shows that the accused was falsely implicated in place of some other Bijender Singh Rajpoot. However, even this argument does not stand its ground.
38. The defence examined Commercial Officer of BSNL as DW2 who produced the record Ex. DW2/1 (Colly.) pertaining to above landline telephone connection. A perusal of documents Ex. DW2/1 shows that the name of consumer is mentioned as Nitesh Kumar S/o Vijendra Singh. The said consumer later on, got the address of connection changed to Azad Nagar, Gali No.1, Muradabad, U.P, which is the address of accused himself. Infact this Nitesh Kumar is the son of accused Bijender himself.
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.20 of 28
ATUL Digitally signed by
ATUL KRISHNA
Date of Decision :- 03.11.2020 KRISHNA AGRAWAL
Date: 2020.11.03
AGRAWAL 18:18:23 +05'30'
This fact is established from family member details Ex. DW1/B of accused Bijender Singh, which was produced by DW1. It can be seen that in the family members details Ex. DW1/B, the name of second son of accused Bijender is mentioned as Nitesh Kumar. Further the said landline telephone consumer Nitesh Kumar, had cited his mother Smt. Raj Kumari as the nominee qua the said telephone connection and the name of wife of accused Bijender in the service record, is Raj Kumari herself. This shows that the accused and his wife are the parents of consumer Nitesh Kumar, besides the address of telephone connection being the same. Hence the accused using a telephone connection, which was in the name of his own son to talk to victims and which was installed at the same address, further proves that accused Bijender was the same person, who cheated the victims alongwith co-accused Chiranji Lal. Infact PW6, the IO had also deposed in his testimony that they managed to apprehend accused Bijender with the help of said telephone connection itself. So there is no merit even in this argument of defence.
39. Another contention on behalf of accused was that there was no evidence brought on record about the particular room/chamber at Old Delhi Railway Station where the accused allegedly met the victims, as deposed by them. Further the victims i.e. PW2 and PW4 have themselves deposed that the room where the accused met them at Old Delhi Railway station, did not had any sign board or name plate. It was also argued that there was no evidence with respect to the amount allegedly given to accused, pursuant to cheating, such as receipt, etc. There was also contradiction in the statement of witnesses regarding the date and manner in which the amounts were handed over to accused. This shows that the victims were making FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.21 of 28 Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL Date of Decision :- 03.11.2020 AGRAWAL Date: 2020.11.03 18:18:41 +05'30' allegations without any basis. It was also alleged that the main accused in this case was Chiranji Lal who may have cheated the victims but the accused was falsely implicated.
40. In this regard, it has to be said that the public witnesses have uniformly deposed that they met the accused with Chiranji Lal at the Old Delhi Railway station, in a room. Money was given by them, both to accused Bijender as well as to Chiranji Lal. The witnesses have more or less, stated the same facts before the IO at the stage of investigation. There is uniformity in their allegations though with minor contradictions and deficiencies such as the number of persons who visited the accused Bijender first time, the subsequent dates when the visits were made and manner of payment of installments of cheated amount. The victims herein, are not educated persons but people with rural background. The alleged minor contradictions has taken place due to the fact that co-accused Chiranji Lal also used to collect money from victims, for himself as well as on behalf of accused Bijender, as deposed by PW2 to PW4. So its quite natural that with passage of time, a witness would not be in a position to accurately state, how much amount was taken by which of the accused and on which date. Ofcourse, there won't be any receipt of payment issued by accused since the money being received by him, was for an illegal purpose and as a bribe which is against public policy. The witnesses also produced forged ID cards Ex. P-1, P-2 and PX as handed over to them by accused, which also supports their contention of govt job being offered to them and payments made by them to the accused.
41. Furthermore, perusal of testimony of PW2, PW3 & PW4 reflects that they FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.22 of 28 Digitally signed by ATUL Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:18:58 +05'30' were examined in the year 2011 and 2012, i.e. after 7-8 years from the time when they were cheated. Despite such a long gap, their testimonies appear to be reliable and largely unimpeached. In fact it is all but natural that the witnesses may not remember the entire facts of case after such a long time. This further shows that these witnesses are not tutored witnesses. It has been held in catenas of judgement that when the witnesses are examined after a long gap, there is bound to be some minor discrepancy in their statement. These discrepancies cannot be a ground to acquit the accused, if their testimony is otherwise fully reliable. It was observed by Hon'ble Delhi High Court in Jeet Pal v. State (Delhi) 1997 Cri.L.J. 299 that :
"It was to be borne in mind that the raid was conducted on 14.8.1989, both the witnesses were examined in the trial court on 12.10.1990 and on that date their examination-in-chief remained incomplete. However, examination-in-chief of R.K.Anand (Public Witness 1) and R.N.Maini (Public Witness 2) was resumed on 9.3.1995 and 29.3.1995 respectively. These witnesses were deposing to an incident which occurred 5/6 years back the very fact that there are some minor discrepancies, instead of diminishing the worth of their evidence, gives at a stamp of genuineness. The discrepancies referred to by the learned counsel for the petitioners are, in my view, miner, insignificant, natural and not material. These discrepancies are due to normal errors of memory due to lapse of time and they also do not relate to main substratum of the prosecution case."
42. In Leela Ram (Dead) through Duli Chand v. State of Haryana AIR 1999 SC 3717 it was observed that :
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:19:16 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.23 of 28 Date of Decision :- 03.11.2020 contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
43. Further in Rammi Alias Rameshwar vs State Of Madhya Pradesh AIR 1999 SC 3544 the Hon'ble Supreme Court while upholding the conviction of the appellant, had this to observe that :
"When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness."
44. Accordingly, in view of the settled proposition of law as stated above, I have no problem in holding that the testimonies of PW2 to PW4 are reliable and trustworthy. However at the same time, the investigation done by the IO with respect to the place where the alleged cheating and delivery Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:19:36 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.24 of 28 Date of Decision :- 03.11.2020 of money took place, is extremely poor and pathetic. It is a living testimony of incompetence of IO/SI Ashok Kumar. Infact the attitude of police officials in this case, was deplorable from the outset. All the victims have stated in one voice that they were made to run from pillar to post, to get their FIR registered despite clear allegations. Photocopy of previous complaints Mark A and Mark B is on record though original was never produced. The prime accused of this case namely Chiranji Lal was even let off by the police officials and he was never apprehended even later on. Furthermore after registration of FIR, the investigation was done in a lackadaisical manner. The FIR was registered on 07.09.2005 after much delay and when the case was marked to IO on 09.09.2005, he kept sleeping over the matter for three months. Then on 17.12.2005, the membership cards of victims were seized and thereafter only on 01.02.2006, he went for the search of accused Bijender. Due to above reasons, the prime accused Chiranji Lal escaped and no effective search and seizure could take place in this case. As stated above, no investigation was done at the place where the accused used to meet the victims alongwith Chiranji Lal and also regarding recovery of the money given to accused. Except for recording statements of witnesses, seizing of some documents from them and arresting the accused, the IO has done no investigation worth its name, as is required in a case of cheating and forgery. Another such instance is that the IO did not even invoke the provisions of Prevention of Corruption Act, 1988, in this case even though money was received as bribe by a government employee. However the larger question is, "Can the accused be given benefit of defective investigation?". The answer is no.
45. In Dhanaj Singh v. State of Punjab AIR 2004 SUPREME COURT FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.25 of 28 Digitally signed by ATUL Date of Decision :- 03.11.2020 ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:19:55 +05'30' 1920, it was held that court has to be circumspect in evaluating the evidence. The accused cannot be acquitted solely on account of defective investigation, since to do so, would tantamount to playing into hands of Investigating Officer, if investigation is designedly defective.
46. In the present case, the investigation or the lack of it, gives an impression that the IO was either incompetent or he did not make proper investigation due to extraneous considerations. Be that as it may, the substratum of the allegations remains unimpeached, the landline number provided by the accused to the victims (which is mentioned in complaint Ex. PW2/A) links the accused with the crime and the prosecution case appears reliable and trustworthy. Hence in my considered opinion, the offence of cheating and delivery of money as provided u/s 420 IPC stands proved against the accused.
47. As regards the allegations of criminal conspiracy u/s 120 B IPC is concerned, the evidence clearly shows the involvement of co-accused Chiranji Lal, who was infact the mastermind of this offence. Chiranji Lal introduced himself as Railway driver and also lured the victims, in believing that he can secure a govt job for them, in railways. He was the one who introduced accused Bijender as inquiry officer of railway and arranged the meeting of accused with the victims. This clearly points towards a well-planned, prior criminal conspiracy between Chiranji Lal and accused Bijender, to cheat the complainants. Hence even offence u/s 120B IPC, stands proved against accused.
48. With regards to offence u/s 170 r/w 120 B of IPC is concerned, the accused Digitally signed by ATUL ATUL KRISHNA KRISHNA AGRAWAL AGRAWAL Date: 2020.11.03 18:20:16 +05'30' FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.26 of 28 Date of Decision :- 03.11.2020 Bijender had been introduced to complainants as a Railway inquiry officer by Chiranji Lal and not with his actual name i.e. Vijendra Singh but as Bijender Singh Rajpoot. However as per Sec 170 IPC, the offence is committed when a person pretends to hold any particular office as public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character, does or attempts to do any act under colour of such office. In this case, the accused did pretend himself to be an inquiry officer in Railways, however he did not do or attempted to do any act in his assumed character as inquiry officer. Further inquiry officers are not invested with power to give jobs to any one. Accused's taking money from complainants to get a job for them, was an act of cheating and not an act done under the color of the office of inquiry officer. Hence in my considered opinion, this offence u/s 170 IPC is not made out.
49. Regarding offence alleged u/s 419 IPC of personation is concerned, explanation to the section states that "the offence is committed whether the individual personated is a real or imaginary person." Hence whenever a person pretends to be some other person than what he actually is, for cheating someone, the offence is completed and it also does not matter whether the person impersonated is real or imaginary. So, a person can personate even a non-existent person. In the present case and as discussed above, accused Bijender deceivingly impersonated himself to be an inquiry officer of Railways to the victims, in conspiracy with co-accused Chiranji Lal and he even met the victims as an inquiry officer, throughout their various interactions with one another. The cheated money was not given by victims to driver Vijendra Singh of Railways but to fake inquiry officer FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.27 of 28 ATUL Digitally signed by ATUL Date of Decision :- 03.11.2020 KRISHNA AGRAWAL KRISHNA Date: 2020.11.03 AGRAWAL 18:20:35 +05'30' Bijender Singh Rajpoot, which the accused was impersonating himself to be. Hence this offence u/s 419 IPC is proved against the accused.
50. With these observations and findings, accused Bijender Singh @ Vijendra Singh stands convicted for offences u/s 120-B IPC as well as Sec 419/420 r/w 120-B IPC, however the accused stands acquitted for offence u/s 170 IPC r/w 120-B IPC. Copy of this judgment be given free of cost to the convict.
Convict be separately heard on the point of sentence.
ATUL Digitally signed by
ATUL KRISHNA
Announced in the open court KRISHNA AGRAWAL
Date: 2020.11.03
AGRAWAL 18:20:57 +05'30'
(ATUL KRISHNA AGRAWAL)
ACMM/NORTH-WEST
ROHINI COURTS/DELHI
03.11.2020
FIR No. 580/2005 PS Ashok Vihar State Vs Bijender Singh Page No.28 of 28
Date of Decision :- 03.11.2020