Delhi District Court
State vs . Rajender & Anr, Fir No. 374/95, Ps Model ... on 23 May, 2012
State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 374/95. PS. Model Town. U/s. 468/471/120B IPC. State Vs. Rajender & Anr. JUDGMENT
A. SL. NO. OF THE CASE : 143/06.
B. DATE OF INSTITUTION : 09.01.1996
C. DATE OF OFFENCE : On or before 02.09.1995.
D. NAME OF THE : Sh. K.K. Sikka (Lecturer).
COMPLAINANT
E. NAME OF THE : (1) Rajinder Guglani @ Raju
ACCUSED PERSONS S/o Sh. Agyaram
(2) Arun Giri S/o Sh. Inderpal Giri
F. OFFENCE
COMPLAINED OF : U/s 419/468/471/120B IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquitted
J. DATE OF SUCH ORDER : 23/05/2012.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 02.09.1995 Sh. K.K. Sikka, Assistant Exam Superintendent, Aryabhatt Polytechnic, GTK Road, Delhi, made a complaint to SHO PS Model Town, Delhi against the accused persons namely Rajender Singh Guglani and Arun Kumar Giri. He had alleged in his written complaint that on Page No. 1 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC 21.08.1995 BTE Examination commenced in his Polytechnic and on 02.09.1995 one of the papers of Polytechnic was being held. He has further asserted that he was Assistant Exam Superintendent and he was on routine checkup of the examinees in the said examination. At about 10:30 am, he reached room no. 312 of the said Polytechnic and found that a fictitious person namely Rajender Singh Guglani was writing answer sheets in place of actual candidate Arun Kumar Giri bearing Roll No. 911908. After being detected of impersonation, accused Rajender Singh Guglani swallowed part of the attendance sheet and part of the forged admit card containing details of the actual candidate /accused Arun Kumar Giri, though bearing the photograph of the impersonator i.e. the accused Rajender Singh Guglani. On the basis of the aforesaid complaint of Sh. K.K. Sikka, the present FIR under Section 419/468/471/120B/201 IPC was lodged at PS Model Town, Delhi. During investigation, IO seized the aforesaid alleged forged admission card and attendance sheet bearing signature of the accused Rajender Guglani, who had impersonated and signed as Arun Giri. Both the accused persons namely Rajender Singh Guglani and Arun Giri were arrested and after completion of investigation, challan under aforesaid sections was filed in the court.
2. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to both the accused persons. Prima facie charge u/s 419/468/471/120B IPC was made out against both the accused persons. Accordingly, on 15.12.1998 the charge was framed by the Ld. Predecessor Page No. 2 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC of this court. Both the accused persons pleaded not guilty and claimed trial to the said charges. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined nine witnesses. PW1 HC Mithlesh was DO on 02.09.1995 at PS Model Town and he registered the present FIR. He has proved the copy of present FIR as Ex. PW1/A.
4. PW2 Sh. K.K. Sikka is the complainant and he has testified that in the year 1995 he was working as Assistant Exam Superintendent at Aryabhat Polytechnic and on the day of occurrence at about 12:00 noon, one boy informed me that a boy is appearing in the examination in place of another student. Thereafter, Examination Superintendent took him to the room at Second Floor and they picked 34 boys from the examination hall /room and produced them before the Principal/Examination Superintendent. He has deposed that Principal had doubts regarding one boy and at the instance of the Principal a complaint Ex. PW2/A was prepared. He has specifically testified that he signed on the said complaint at the instance of the principal. He admitted that seizure memo of attendance sheet, original Roll No. and one torn sheet was seized in his presence and he has accordingly proved the said seizure memo as Ex. PW2/B. The said witness has further stated that he does not know anything else about this case. He failed to identify either of the accused person. Therefore, the Ld. APP for the state cross examined the said witness as he was resiling from his earlier statement. During his cross examination also the Ld. Page No. 3 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC APP for the state could not extract anything incriminating against either of the accused persons as he persisted that he cannot identify either of the accused. He even failed to tell the name of the persons against whom he made the present complaint.
5. PW3 Sh. Surender Kumar, LDC, Board of Technical Education, Registrar Office, Pitampura, Delhi, placed on record letter no. F53 (G)/Exam/BTE/2001/2442 dt. 18.09.2001 written by Dr. I.S. Kakkar, Registrar.
6. PW4 Sh. M.P. Singh and PW5 Sh. Bhuri Singh have also deposed in their respective examination in chiefs that they were on duty in the BTE Examination at Aryabhat Polytechnic and during checking the principal caught 34 examinees while they were using unfair means. However, neither of them remembered the names of the said examinees nor they identified any of the accused person to be the perpetrator of the present offence. Thereafter, both the said witnesses were cross examined by Ld. APP for state. But despite grueling crossexamination, nothing incriminating against the accused persons could be extracted from the said witnesses as they maintained that neither they know the names of the accused persons nor they can identify them.
7. PW6 Sh. R.S. Raina, Security Officer has testified that on 02.09.1995 he was posted as Security officer at Aryabhatt Polytechnic. He has testified that on the Page No. 4 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC said date at about 10:30 am he heard a noise from room no. 312 and when he went to the said room he found that the accused Rajender Guglani was being apprehended by Sh. K.K. Sikka and the other staff members. He has further deposed that he saw the torn admission card and the attendance sheet on which, the accused Rajender Guglani had signed as Arun Kumar. In his crossexamination he admitted that he had not seen the incident with his own eyes and he was informed about the incident by Mr. Sikka. He also admitted that his duty was not inside the examination hall but, he was posted outside it.
8. PW7 Sh. Inderpal has testified that he does not remember anything about this case. He was crossexamined by Ld. APP for state but despite that he failed to support the prosecution case and did not identify the accused persons to be the culprits of the present case.
9. PW8 HC Prahlad Singh has testified that on 13.10.1995 the father of the accused Arun Giri namely Inder Pal Giri produced the accused Arun Giri at PS and thereafter, he was arrested by IO SI Vinay Malik. He has proved the personal search memo of the accused Arun Giri as Ex. PW8/A.
10. PW9 Ins. Vinay Malik is the IO of this case and he has deposed that on 02.09.1995 he was posted at PS Model Town and he alongwith Ct. Veer Singh went to Aryabhatt Polytechnic College. He has further deposed that where he met with Page No. 5 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC the complainant Sh. K.K. Sikka who handed over to him attendance sheet and roll no. that was seized by him vide seizure memo Ex. PW2/B. He also testified that accused Rajender Guglani was also present in the custody of Sh. K.K. Sikka and his custody was also handed over to him. He has proved the arrest memo of the accused Rajender Guglani as Ex. PW9/A. He also proved the personal search of the accused Arun Giri as Ex. PW8/A. The attendance sheet, semitorn attendance sheet and admission card were given exhibits i.e. Ex. PW4/A, Ex. PW4/B and Ex. PW4/C respectively, though Ld. Counsel for defence objected to mode of their proof. Thereafter, PE was closed.
11. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file.
12. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
13. In the instant case, the prosecution has alleged that both the accused persons entered into a criminal conspiracy and pursuant to said conspiracy, they had forged the admit card Ex. PW9/C of accused Arun Giri and replaced his photograph with Page No. 6 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC the photograph of the accused Rajender Guglani. Subsequently, to execute the said conspiracy, the accused Rajender Guglani impersonated the accused Arun Giri in the examination of BTE and during the examination, he forged the signatures of the coaccused Arun Giri on the attendance sheet Ex. PW4/A. It is an admitted case of the prosecution that none of the PWs have seen either of the accused persons preparing the aforesaid forged admit card Ex. PW9/C. Further, the said admit card was not sent to FSL for ascertaining the identity of the person who prepared the aforesaid alleged forged admit card. Therefore, there is not even an iota of evidence against the accused persons to suggest that the said admit card was forged by either of the accused persons. Besides that, there is not even a single prosecution witness who has seen the accused Rajender Singh Guglani signing on the attendance sheet as Arun. Further, the signature on said attendance sheet was also not got compared with the specimen /admitted signatures /handwriting of the accused Rajender Guglani from the handwriting expert. Therefore, there is no evidence on record to manifest that the accused Rajender Guglani signed as Arun on the attendance sheet Ex. PW4/A. Thus, the aforesaid document Ex. PW4/A has also not been proved to have been forged by the accused Rajender Guglani by signing in the name of Arun against the roll no. of the coaccused Arun Giri.
14. In respect of allegation regarding use of the aforesaid alleged forged documents by the accused person, the complainant PW2 Sh. K.K. Sikka, PW4 Sh. M.P. Singhal and PW5 Sh. Bhuri Singh are the material witnesses as they have Page No. 7 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC allegedly caught the accused Rajender Guglani, while he was impersonating as the coaccused Arun Giri in the examination of BTE. However, none of the said witnesses have identified the accused Rajender Guglani to be the perpetrator of the offence of impersonation or to be the offender of the offence of forgery or of using a forged document for the purpose of cheating. The complainant PW1 Sh. K.K. Sikka in his testimony has categorically deposed that he cannot identify the accused. The said witness has testified that 34 boys were picked up from examination hall and they were produced before the Principal. He continued and stated that Principal had a doubt on one boy and at the instance of the Principal he made a complaint Ex. PW2/A. The said witness has nowhere stated that the Principal had doubt on said boy in respect of impersonation. Moreover, he has failed to identify /specify the name of the boy on which the said Principal had doubt. Rather, he has merely stated that he gave a complaint Ex. PW2/A at the instance of the Principal of Aryabhatt Polytechnic College. The said Principal has not been cited as a witness nor he has been examined. Therefore, the important and vital link in the chain of events to establish the fact that on the date of occurrence, an impersonator was apprehended is missing. Moreover, complainant PW2 Sh. K.K. Sikka, PW4 Sh. M.P. Singhal and PW5 Sh. Bhuri Singh, who are the alleged eyewitnesses of the offence of impersonation, have not only failed to identify the accused Rajender Guglani to be an offender of the present offence, but they have also failed to tell the name of the the person who was apprehended by them during checking in the examination. Page No. 8 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC
15. PW6 R.S. Raina, Security Officer at Aryabhatt Polytechnic College and IO Ins. Vinay Malik have identified the accused Rajender Guglani. However, the said witnesses are not the direct witnesses, rather, they are only hearsay witnesses, who had derived their knowledge regarding the commission of offence and the identity of the offender from the complainant PW2 Sh. K.K. Sikka. It is ironical that the person from whom the said witnesses have alleged to have acquired knowledge /information regarding the commission of offence by the accused persons have himself failed to support the prosecution version regarding the commission of offence as well as the identity of the offenders. Therefore, the aforesaid hearsay testimony of the said witnesses does not inspire sufficient confidence and thus, their testimonies cannot be made basis for the conviction of the accused persons.
16. IO/PW9 Ins. Vinay Malik has exhibited attendance sheet, semitorn attendance sheet and admission card of the accused as Ex. PW4/A, Ex. PW9/B, and Ex. PW9/C. IOPW/9 Ins. Vinay Malik had seized the said documents vide seizure memo Ex. PW2/B as they were allegedly handed over to him by the complainant PW2 Sh. K.K. Sikka. But, the said complainant has nowhere stated in his testimony that same was recovered from the possession of the accused Rajender Guglani. Therefore, the important evidence that could have linked the accused Rajender Guglani to the recovery of the aforesaid forged admit card is glaringly missing. Moreover, the author of the admission card Ex. PW9/C has not Page No. 9 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC been identified during the investigation nor any prosecution witness has proved that the said admission card was recovered from the possession of the accused. Therefore, the said admission card has not been proved in accordance with the Evidence Act, 1872 and so, the same cannot be considered to be proved to have been recovered from the possession of the accused. The attendance sheet Ex. PW4/A is proved by PW4 M.P.Singhal and he has stated that the said attendance sheet bears his signature at point A. However, the said witness has nowhere mentioned that the accused Rajender Guglani signed the said attendance sheet as Arun against the roll no. of Arun Giri 911908 in his presence. Therefore, the said attendance sheet Ex. PW4/A qua the alleged forged signature of the accused Rajender Guglani has also not been proved. Therefore, the said document can also be of no help for the prosecution to indict the accused for any criminal liability.
17. The complainant PW2 Sh. K.K. Sikka, PW4 Sh. M.P. Singhal and PW5 Sh. Bhuri Singh are the vital, direct and relevant witness who could have proved the offence of forgery and cheating by impersonation against the accused Rajender Guglani. However, the said witnesses have failed to specify the factum of commission of offence of forgery or impersonation on the alleged date of occurrence. The complainant PW2 Sh. K.K. Sikka and PW4 Sh. M.P. Singhal have merely stated that 34 examinees /boys were caught by the Principal on doubt, though they have failed to specify the nature of doubt for which the said boys were caught. On the other hand, the other eye witness PW5 Sh. Bhuri Singh has stated Page No. 10 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC that the boys were caught as they were having written material for copying. Therefore, there is a material contradiction between the testimonies of the eye witnesses regarding the reason for which the boys /examinees were caught. In addition to that, none of the said witnesses has stated before the court that the said boys were caught for the offence of forgery and cheating by way of impersonation. Therefore, the very factum of the commission of the aforesaid offence has not been proved by the prosecution.
18. If, for the sake of arguments, it is presumed to have been established that the aforesaid offence was committed by one of the boy/student/examinee, in that case also there is no evidence on record to suggest that the said boy was accused Rajender Guglani. None of the aforesaid relevant and direct eye witnesses have identified the accused Rajender Guglani to be the person who was caught by them on the date of occurrence. On the other hand, to the contrary, none of the said witnesses have told the name of the person /student /examinee that was allegedly caught by them. The identity of the accused is of paramount importance in a criminal trial and once, the same remains unestablished, the accused cannot be convicted for any offence. The nonidentification of the accused persons to be the perpetrator the offences alleged against them has proved fatal to the prosecution case. Besides that, there is not even an iota of evidence on record to show that there was a criminal conspiracy between the two accused persons to commit the offence of forgery and cheating by way of impersonation.
Page No. 11 State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC
19. Thus, the prosecution has miserably failed to lead clinching and convincing incriminating evidence against either of the accused to bring them within the four corners of offence for which they were charged. Hence, both the accused persons are entitled to benefit of doubt. In view of the above discussion, both the accused persons namely Rajender Guglani and Arun Giri are acquitted for the offence U/s 468/471/120B IPC. Their Bail bonds are cancelled and sureties be discharged. Original documents, if any, be returned to the persons entitled, after cancelling the endorsement, if any, on the said documents.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN OPEN COURT (DHEERAJ MOR)
i.e. 23.05.12. METROPOLITAN MAGISTRATE
ROHINI COURTS/DELHI
Page No. 12
State Vs. Rajender & Anr, FIR No. 374/95, PS Model Town, U/s 468/471/120B IPC FIR No. 374/95.
PS. Model Town.
U/s. 468/471/120B IPC.
23.05.2012
Present: Ld. APP for the State.
Both the accused persons on bail with Ld. Counsel.
Statements of both the accused persons U/s 313 Cr .P. C are separately recorded . Both the accused persons have stated that they do not want to lead defence evidence. Put up for final arguments at 2.00 pm. (Dheeraj Mor) MM/Rohini/Delhi 23.5.2012.
At. 2.00pm
Present: As above.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, both the accused persons Rajender Guglani and Arun Giri stands acquitted for the offence punishable U/s 468/471/120B IPC.
The sureties are discharged and bail bond stands cancelled. Original documents, if any, be returned to the persons legally entitled after cancellation of endorsement, if any, on the said documents. The case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 23.5.2012.
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