Delhi District Court
State vs . Sandeep Kumar & Anr. on 22 January, 2020
IN THE COURT OF SH. VIVEK KUMAR AGARWAL, METROPOLITAN
MAGISTRATE04, SOUTH DISTRICT, NEW DELHI
STATE VS. Sandeep Kumar & Anr.
FIR NO: 530/14
P. S Sangam Vihar
U/s 419 r/w Section 120 B IPC
Crc No. 2033319/16
JUDGMENT
Sl. No. of the case : 104/2
Date of its institution : 07.04.2015
Name of the complainant : Sh. V.K. Yadav
Deputy Commandant BSF,
Presently posted at Frontier
HQ, BSF, Jodhpur, Rajasthan.
Date of Commission of offence : 12.10.2014
Name of the accused : 1) Sandeep Kumar
S/o Late Sh. Rai Singh
R/o VPO Nautana, Tehsil and
Digitally signed
by VIVEK Distt. Mahender Garh, PS
VIVEK KUMAR Kanina, Haryana.
KUMAR AGARWAL 2) Ram Bilas
AGARWAL Date: S/o Sh. Bhola Ram,
2020.01.27 R/o VPO Pota, Tehsil and
14:12:21 +0530
Distt. Mahender Garh, PS
Kanina, Haryana.
Offence complained of : 417/419 IPC
Plea of accused : Not Guilty
Case reserved for judgment : 05.12.2019
Final Order : Conviction
Date of judgment : 22.01.2020
State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 1/14
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused namely Sandeep Kumar and Ram Bilas upon a charge sheet and again supplementary chargesheet filed by the police station Sangam Vihar under section 417/419/34 IPC.
2. The allegations against the accused are that on 12.10.2014 at 10.15 am at Room No. 27 (Diploma 2nd year ECI Class room) STS BSF, Tigri camp, M B Road, accused Sandeep Kumar in pursuance of a criminal conspiracy with coaccused Ram Bilas by impersonating himself as Ram Bilas appeared for the written test for the post of HC BSF by producing an ICard. Again that accused Bilas had allowed accused Sandeep Kumar to appear on his behalf for the written test for the post of HC BSF and thereby both the accused alleged to have committed an offence punishable u/s 417/419/34 IPC.
3. After completing the formalities, investigation was carried out by PS Sangam Vihar and a charge sheet was filed against accused Sandeep Kumar. Subsequently supplementary chargesheet was filed against accused Ram Bilas. After taking cognizance against both the accused persons, charge was framed against both the accused u/s 419 r/w Section 120 B IPC vod 13.04.2017, to which they pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined seven witnesses.
PW1 Sh. V.K. Yadav deposed that on 12.10.2014 he was posted as Deputy Commandant/ADJT/STS/BSF Camp, Tigri Camp, New Delhi and on that day, he received an information that at Room No. 27, 2nd Floor, BSF Polytechnic boys hostel where written examination of HC Fitter was going on, invigilator ASI/RM K.B. Naidu noticed that the candidate in the name of Ram Vilas was not resembling his face with the photograph attached with the admit card. He enquired with the candidate and it came to the notice that accused Sandeep was appearing in place of Ram Vilas in the examination. After preliminary questioning, he told that he was a close relative of Ram State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 2/14 Vilas and were appearing as a dummy candidate to help him clear the examination. The board of officers given a written complaint to DIG of STS, BSF to further investigate the case. He himself went to the place and enquired about the matter and with the help of BSF personnel namely ASI Jeet Singh, ASI K.B. Naidu, HC Abbas Ali, accused was sent to PS Sangam Vihar. He, on behalf of DIG STS BSF gave a written complaint to the police about the incident i.e. Ex.PW1/A. He also handed over certain documents i.e. DL, Admit Card, application form and call letter i.e. Ex.PW1/B to Ex.PW1/E. His statement was also recorded by the police u/s 161 Cr.P.C as Mark. He identified accused Sandeep Kumar in the court. He was cross examined on behalf of the accused persons.
5. PW2 ASI K.B. Naidu deposed that on 12.10.2014 he was an invigilator for the written exam i.e. HC Fitter at Room No. 27, Second Floor, BSF, Polytechnic Boys Hostel at BSF Tigri Camp. Around 30 candidates were present in the aforesaid room for attending the written exam. At that time, just before giving the question papers/booklet to the candidates, he was verifying the hall tickets with the dossier and he found suspicion in the photograph of admit card and the person who was presenting himself as Ram Vilas, he was interrogated and he admitted that he was not Ram Vilas and he disclosed his name as Sandeep and also disclosed that he had come on behalf of Ram Vilas to appear as a dummy candidate in the examination. Thereafter, Deputy Commandant V.K. Yadav reached the spot and he conducted preliminary investigation. Thereafter, he alongwith other BSF officials namely ASI Jeet Singh and HC Abas Ali took him to PS Sangam Vihar under the instruction of V.K. Yadav. A complaint was given by V.K. Yadav to the police and FIR was registered. IO ASI Malkhan Singh seized the admit card of candidate Rambilas vide seizure memo Ex.PW2/A. He was arrested vide arrest memo Ex.PW2/B and his disclosure statement was State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 3/14 recorded vide Ex.PW2/C. Pointing out memo was prepared vide Ex.PW2/D and site plan was prepared vide Ex.PW2/E. He identified accused Sandeep Kumar in the court. He was cross examined on behalf of the accused persons.
6. PW3 SI Jeet Singh deposed that on 12.10.2014 he was posted as ASI at STS BSF Tigri Camp, MB Road, New Delhi and on that day, Deputy Commandant Sh. V.K. Yadav called him and upon his instruction, he alongwith HC Abas Ali took accused Sandeep to PS Sangam Vihar. FIR was registered against him on the basis of complaint given by Sh. V.K. Yadav. Thereafter, he was arrested by the IO vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. He identified accused Sandeep in the court. He was cross examined on behalf of the accused persons.
7. PW4 HC Abas Ali deposed deposed on the same lines as deposed by PW
3. He was cross examined on behalf of the accused persons.
8. PW5 HC Dharam Singh deposed that on 12.10.2014 he was posted at PS Sangam Vihar as Ct. and on that day, he joined the investigation of the present case alongwith IO ASI Malkhan Singh. Accused Sandeep was produced in the PS by the BSF Officials. Thereafter, IO seized the documents produced by the BSF official vide seizure memo Ex.PW2/A and interrogated accused Sandeep. He was arrested by the IO vide arrest Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. Thereafter, IO recorded his disclosure statement vide memo Ex.PW2/C. Thereafter, he was taken to the spot of the incident where IO prepared the pointing out memo at instance of accused i.e. Ex.PW2/D. He identified accused Sandeep in the court. He was cross examined on behalf of the accused persons.
9. PW6 ASI Malkhan Singh deposed that on 12.10.2014 he was posted at PS State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 4/14 Sangam Vihar and on that day, he alongwith Ct. Dharam Singh were on emergency duty. On that day, ASI Jeet Singh, who was posted at BSF, Tigri Camp, MB Road, New Delhi alongwith you came at PS Sangam Vihar and gave a written complaint to him. On the basis of complaint, he prepared the rukka Ex.PW6/A and got the FIR registered. He alongwith Ct. Dharam Singh, BSF staff and accused Sandeep went to the spot where he met invigilator ASI K.V. Naidu and enquired from him. He prepared the site plan at instance of K.V. Naidu Ex.PW2/E. Accused Sandeep was interrogated and his disclosure statement was recorded vide memo Ex.PW2/C. He also prepared pointing out memo at the instance of ASI K.V. Naidu vide memo Ex.PW2/D. Accused Sandeep was arrested vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. He seized the documents vide seizure memo Ex.PW2/A and also seized attested photocopies vide memo Ex.PW1/B to Ex.PW1/E. He recorded statement of the witnesses u/s 161 Cr.P.C. After completing the investigation, he prepared the challan and submitted before the court. He identified accused Sandeep in the court.
10. PW6 further deposed that on 30.05.2015 he went to District Mahendergarh, Haryana and gave notice u/s 41 Cr.P.C to coaccused Ram Vilas vide Ex.PW6/C. On 22.06.2015, coaccused Ram Vilas came to PS and joined the investigation. He recorded his disclosure statement vide memo Ex.PW6/D. Coaccused Ram Vilas was arrested vide arrest memo Ex.PW6/E and his personal search was conducted vide memo Ex.PW6/F. PW6 also filed supplementary chargesheet against coaccused Ram Vilas i.e. Ex.PW6/B. He identified coaccused Ram Vilas in the court. He was cross examined on behalf of the accused persons.
11. PW7 ASI Kuldeep Singh deposed that on 02.06.2015 he was posted at PS Sangam Vihar and on that day, he joined the investigation alongwith ASI State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 5/14 Malkhan Singh. On that day, coaccused Ram Vilas came to PS and IO ASI Malkhan Singh interrogated coaccused and recorded his disclosure statement vide memo Ex.PW6/D. Thereafter, IO arrested coaccused Ram Vilas vide arrest memo Ex.PW6/E and conducted his personal search vide memo Ex.PW6/F. He identified coaccused Ram Vilas in the court. He was cross examined on behalf of the accused persons.
12. Both the accused had admitted the genuineness of copy of FIR alongwith certificate u/s 65 B Evidence Act u/s 294 Cr.P.C and as such the formal proof of this document by calling their author was dispensed with and this document was exhibited as Ex.AD1.
13. Prosecution evidence stood closed vide order dated 24.05.2019.
14. After closure of prosecution evidence, statement of the accused persons was recorded u/s 313 Cr.P.C wherein all the incriminating circumstances were put to them which they denied. They pleaded false implication. They also chose to lead defence evidence.
15. In defence evidence, accused persons examined one Naveen Kumar as DW1, who deposed that on 12.10.2014 he had attendant the written exam at STS BSF Camp, Tigri and that on that day, accused Ram Vilas was present in the examination centre in the same room and that during the examination, he was taken out of the examination hall. He was cross examined by Ld. APP for the State. Thereafter, DE was closed on behalf of accused persons on 21.11.2019.
16. I have heard the arguments advanced by Ld. APP for the State as well as Ld. defence counsel for the accused persons and have gone through the file carefully and minutely.
17. It has been argued by the Ld APP for the State assisted by the counsel for the complainant that from the testimony of the all the prosecution witnesses, it is duly established that both the accused were in conspiracy and State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 6/14 consequently accused Sandeep Kumar had appeared in place of accused Ram Bilas in the examination on 12.10.2014. Accordingly, they both be convicted for the charges leveled against them.
18. On the other hand, Ld. Counsel for the accused persons had raised the question on the genuineness of the prosecution version and has stated that both the accused persons have been falsely implicated in the present case. Ld. defence counsel have made several fold arguments, as discussed hereinafter:
19. Firstly, that there are several contradictions in the testimony of prosecution witnesses. That as deposed by PW2, CCTV was installed at the examination centre, however no footage from CCTV was recovered by the IO. Again that as per crossexamination of PW2, statement of Man Singh was not recorded by the IO in his presence. Again PW5 failed to depose the name of the person who had produced the accused in the police station. Again PW6/IO failed to depose about the departure entry made by him and that PW7 stated that he had never visited the spot of the incidence.
20.Secondly, it is contended that DW1 has deposed in favour of the accused persons only and the case of prosecution has been tainted.
21. Thirdly, that no independent witness except the official witnesses has been examined on behalf of the prosecution.
22.Now, before going into the merits of the prosecution case and the contentions raised by the Ld. defence counsel, it is to observe that the present case is undoubtedly based on the oral as well as circumstantial evidence. Regarding the appreciation of circumstantial evidence, it would be relevant to refer some of the authorities of Hon'ble Supreme Court on this point as discussed hereinafter.
23. In Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430, Hon'ble Apex Court after considering large number of its earlier State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 7/14 judgments observed as follows:
This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, AIR 1982 SC 1157)".
24. Again, in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should' and not `may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 8/14 accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
25.Now, in this backdrop, let me first advert to contentions raised by the Ld.defence counsel and therafter to the appreciation of the prosecution evidence:
26. The first contention of defence counsel is that there are contradictions in the testimony of prosecution witnesses. In this regard, it is to observe that as deposed clearly by PW2 in his crossexamination as well as deposed by PW6 in his crossexamination, no CCTV was installed in the examination hall but only outside of the same. Accordingly, recovery of CCTV footage does not come into picture in any manner. No other contradiction pointed out by Ld. Defence Counsel is material. It is to further observe that distinction has to be made between the contradiction and discrepancies as minor discrepancy or variance in evidence does not make complete prosecution case doubtful. It is only the major contradictions who raise question on the version of prosecution. In this regard, I draw support from the judgment of Hon'ble Supreme Court in Narayan Chetanram Chaudhary & Anr vs State Of Maharashtra on 5 September, 2000 wherein it was observed:
"When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 9/14 to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."
27. In view of settled position of law, regarding the submission that there are contradictions in the testimony of the official witnesses, it is to observe that no major contradiction has been pointed out by the Ld. defence counsel to discard the testimony of all the official witnesses. The contradiction regarding the visit at the spot or departure entry is not something which can discard the testimony of the said witnesses in toto. Undoubtedly, a police official is involved in number of the cases and some error is bound to occur after expiry of long period i.e about four years in the present case and accordingly this argument stands nullified.
28. Secondly, regarding the contention that DW1 has deposed in favour of the accused persons, it is to observe that the said witness deposed in his cross examination that he was not having any single document to show that he had given exam at STS BSF Camp on 12.10.2014 and accordingly, his version is not reliable in any manner. Moreover, he himself has admitted in clear terms that accused Ram Bilas was known to him for the last 10 years being neighbourer and accordingly, he undoubtedly is an interested witness.
29. Thirdly, regarding the nonexamination of the independent witness, it is to observe that it is not in the every case that testimony of official witness has to be discarded for want of independent witness. The Hon'ble Supreme Court in case of Chander vs. State of Haryana (2013) 14 SCC 420 observed:
State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 10/14 "when a police officer gives evidence in court that a certain article was recovered by him on the strength of statement made by accused, it is open to Court to believe that version to be true if it is not otherwise so to be unreliable whose burden is on the accused, through cross examination of witnesses or through materials, to show that evidence of the Police Officer is unreliable. It is not permissible to presume that police action is unreliable. It was further observed that from nonjoining of independent witness where evidence of prosecution witnesses may be found to be cogent, convincing, credit worthy and reliable cast doubt on prosecution case where there seems to be no reason on record to falsely implicate the accused.
30.In this regard it would not be out of place to refer the illustration "e" of Section 114 of Indian Evidence Act which provides the presumption regarding judicial and the official case.
31. In the present case, there is nothing on record either in cross examination of the witnesses or in defence evidence to raise question that there has been any animosity between the police officials and the accused persons. Accordingly it cannot be presumed any how that accused have been falsely implicated in the present case and therefore, this contention again stands nullified.
32. In view of the aforesaid discussion, it is to concluded that all the contentions raised by the Ld.defence counsel stand nullified. Now, let me advert to the merits of the prosecution case. As observed above, the whole case is based upon the oral as well as circumstantial evidence and I am of the view that the following are the links to complete the chain of evidence in the present case:
(i) The application form of the applicant namely Ram Bilas i.e. Ex.PW1/D;
(ii) The admit card of the accused/applicant namely Ram Bilas i.e. Ex.PW1/C and;
State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 11/14
(iii) The disclosure of accused Sandeep Kumar and thereafter arrest of co accused Ram Vilas on the basis of the disclosure;
33. Regarding the first and second link of the chain of evidence, the prosecution has relied upon the documents Ex.PW1/D, Ex.PW1/C and also upon PW1/B and lastly upon disclosure memo Ex.PW2/C. Now, as deposed in testimony of PW1 being duly corroborated by PW2, one person had appeared to give test on 12.10.2014 on behalf of accused Ram Vilas, however, on the comparison of his photograph in the admit card and as per his physical appearance, it was found that said photograph was not matching with the person present in the examination hall. Thereafter on the inquiry, his names was revealed as Sandeep Kumar. The same was further revealed in the investigation conducted by the IO i.e PW6. Accordingly, it can be safely concluded that the accused namely Sandeep Kumar had made an attempt to impersonate Ram Bilas. The said finding is further supported by the observation of the Court that this is the photograph of the accused Sandeep Kumar on the admit card Ex.PW1/C only as being compared with his physical presence in the court. Again from the copy of application form Ex.PW1/D, it is very clear that same was filled in the name of one Ram Bilas only and the admit card was also issued in the name of Ram Bilas only, however admit card was annexed with the photograph of accused Sandeep Kumar. Undoubtedly the arrest of accused Sandeep Kumar from the examination hall on 12.10.2014 is not in question in any manner as being duly supported by PW1 to PW6. Accordingly, it is concluded that the prosecution has completely established the charge of cheating by impersonation against accused Sandeep Kumar.
34. Regarding the third and last link of the chain of evidence, it is to observe that the prosecution case against the accused Ram Bilas is based upon the State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 12/14 disclosure made by the accused Sandeep Kumar and the recovery of copy of conductor license in name of Ram Bilas from possession of accused Sandeep Kumar i.e. Ex.PW1/B through seizure memo Ex.PW2/A. Now, it is to observe that undoubtedly, accused Ram Bilas was the main beneficiary of the offence of cheating being committed by accused Sandeep Kumar, who was trying to impersonate him. Moreover, it is not the case of the accused Ram Bilas that he had any previous animosity with accused Sandeep Kumar and that accused Sandeep Kumar was trying to impersonate him with the intention to implicate him in a criminal case. Accordingly, I come to the conclusion that a conspiracy was hatched between the accused Sandeep Kumar and Ram Bilas to commit the offence of cheating by impersonation and that the accused Sandeep Kumar was the active participant in the commission of the said offence while the coaccused Ram Bilas was behind the curtains.
35. In view of the aforesaid discussion, it is clearly established that accused persons were party to a criminal conspiracy to commit the offence of cheating by impersonation and the act was done on their part besides the agreement and accordingly, they are liable to be punished under Section 120B (1) IPC. Now, regarding the offence of cheating by impersonation, one question arises for adjudication whether the said offence was committed or it was only an attempt. In this regard firstly let me advert to the provision of Section 416 IPC, which defines the offence of 'Cheating by Personation' and provides that a person is said to cheat by impersonation if he cheats by pretending to be some other person or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
36. Now, in the given facts, it is clearly established that accused persons being State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 13/14 in conspiracy with each other had substituted one person for another as accused Sandeep Kumar had represented himself as Ram Bilas. Accordingly, it is to be concluded that the accused persons had committed the offence of cheating by personation being in conspiracy with each other.
37. In view of the aforesaid discussion, both accused persons are hereby convicted for having committed the offence punishable under Section 419 IPC read with Section 120B IPC. Now, they be heard on quantum of sentence.
Announced in the open court (Vivek Kumar Agarwal)
on 22.01.2020 Metropolitan Magistrate04
South, New Delhi
It is certified that this judgment contains 14 pages and each page bears my signatures.
(Vivek Kumar Agarwal) Metropolitan Magistrate04, South, New Delhi/22.01.2020 State Vs. Sandeep Kumar & Anr. Case No. 2033319/16 14/14