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Delhi District Court

State vs Manish Kumar on 18 July, 2023

          IN THE COURT OF V. K. BANSAL,
      PRINCIPAL DISTRICT AND SESSIONS JUDGE,
     NORTH-EAST, KARKARDOOMA COURTS, DELHI.

                                         Crl. Appeal No.31/2023
                                   CNR No.DLNE01-001059-2023


In the matter of:

State                                             .........Appellant

Versus

Manish Kumar
S/o Sh. Ranbir Singh
R/o VPO Bhani Chander Pal
District Rohtak, Haryana.                        ...........Respondent

Date of registration of appeal:                          01.04.2023
Date when appeal was received by this Court:             05.04.2023
Date of conclusion of arguments:                         08.07.2023
Date of pronouncement of judgment:                       18.07.2023


ORDER:

1. The present appeal has been preferred challenging the order dated 17.02.2023 vide which the appellant herein was held guilty and convicted for offence punishable under Section 120-B of IPC and was sentenced vide order dated 02.03.2023, he was sentenced to pay fine of Rs.30,000/- and in default of fine to undergo simple imprisonment for two months.

2. The brief facts of the case are that on 11.11.2012, there VIRENDER KUMAR was recruitment for the temporary post of Constables (Driver) in BANSAL Police Training School, Wazirabad. Ct. Gaje Singh was on Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.07.18 special biometric duty in D ground, PTS, Wazirabad. When he 16:58:44 +0530 went to answer the call of nature, he saw a boy throwing his CA no.31/2023 Manish Kumar Vs. State Page 1/12 admit card after tearing it. When he inquired from that boy as to why he has torn his admit card, the boy told him that he was having two admit cards. He asked that boy to show his admit card. Ct. Gaje Singh also lifted the torn admit card which was having a seal. He told that boy that he cannot not sit in the examination without admit card. That boy was also having Delhi Police band on his wrist. He took that boy to biometric and obtained his finger prints but the same did not match with the biometric. He also asked him to sign but he was also not able to sign. Then he produced that boy before the DCP. The boy told that his name is Manish. The admit card which was found in the possession of Manish was in the name of Manoj Kumar. The admit card which he threw after tearing was also in the name of Manoj Kumar son of Satya Singh. Manoj Kumar was also apprehended and after completion of the investigation, charge sheet was filed.

3. The Ld. ACMM charged both the accused persons for offences punishable under Sections 419/511 read with 120-B IPC. Accused Manoj pleaded guilty to the charge and accused Manish pleaded not guilty. On the plea of guilt, accused Manoj was convicted on 12.09.2022 for offence punishable under Section 419/511/120-B IPC and was sentenced to pay fine of Rs.2,500/- in default to undergo simple imprisonment for two days. The trial continued against accused Manish.

4. Head Ct. Gaje Singh was examined as PW1. He deposed that he reached PTS, Wazirabad for duty. He was posted at D ground for biometrics. When he went to answer the call of nature VIRENDER KUMAR near tin shed, he saw one boy tearing his admit card. He also BANSAL Digitally signed noticed that he was having hand band relating to concerned by VIRENDER KUMAR BANSAL Date: 2023.07.18 16:58:54 +0530 examination. When he inquired from him as to why he had torn CA no.31/2023 Manish Kumar Vs. State Page 2/12 his admit card, he replied that he has another admit card. He asked that boy to show him his other admit card and also picked up the torn admit card. He noticed official seal on the torn admit card. He took that boy for his biometric and asked Incharge Biometric to check his credentials but his biometric did not match. Thereafter, he asked him to sign in the same way as on the torn admit card but his signature did not match. Thereafter, he took that boy to DCP at ground D and informed him all the facts. That boy revealed his name as Manish. He correctly identified the accused. Information was sent to Police Station and HC Manoj Kumar reached on the spot. His statement was recorded which is Ex. PW1/A. Accused was arrested vide arrest memo Ex.PW1/B. His personal search was conducted vide memo Ex.PW1/C. The admit card was seized vide memo Ex.PW1/D.

5. During cross-examination, he deposed that he was responsible for asking the candidates to stand in queue and thereafter conduct their biometric. He did not remember the number of officials mandated to conduct biometric. He cannot say who was the Incharge of the biometric machine. The band is given to the candidates after checking biometric and roll number of the candidate is stamped only after checking the biometrics. No signature of the accused was taken while getting biometric of the accused done. He stated that Ex. PW1/B and Ex. PW1/C both were prepared on the spot. Site plan was also shown to the witness, on the basis of which he stated that tin sheets were used VIRENDER for barricading the ground that he has referred as tin shed. He KUMAR BANSAL denied the suggestion that Manoj had come to appear in the Digitally signed by VIRENDER examination and accused only accompanied Manoj or that Manoj KUMAR BANSAL Date: 2023.07.18 16:59:09 +0530 had some altercation with biometric officials and thereafter he ran away and accused has been falsely implicated in the present CA no.31/2023 Manish Kumar Vs. State Page 3/12 case. He denied the suggestion that he had seen Manoj talking with accused and thereafter accused has been falsely implicated. He denied the suggestion that the band and the roll number recovered were actually found with Manoj which were planted on the accused.

6. ASI Surjeet Singh was examined as PW2. He produced the original record related to the Recruitment Cell, Delhi Police/Driver 2012 of roll no.810877, PEMT no.4027968. As per diary no.906/R/SHO/SV dated 04.07.2014, one application was received from PS Sonia Vihar in his office to provide original PEMT to the IO and he handed over the original PEMT to IO HC Manoj Kumar through Incharge Recruitment Cell. He proved the original PEMT (admission card for written test) in the name of Manoj Kumar as Ex. A1. He also brought the copy of the finger print slip of Manoj Kumar. He proved the copy of left and right index fingers impression of Manoj Kumar as Ex.A2 running into three pages.

7. HC Manoj Kumar was examined as PW3. He deposed that on 11.11.21012 he was posted at PS Sonia Vihar as HC. He along with Ct. Inderpal was on emergency duty. They were assigned duty at D ground PTS, Wazirabad, where examination of Delhi Police written test (driver) was being conducted. Ct. Gaje Singh produced one boy namely Manish Kumar with two admit cards, one admit card was partially torn and one wrist band before him and also told that he had suspicion over the said boy that he had appeared in the examination in place of other candidate. He VIRENDER KUMAR BANSAL seized the admit card and the wrist band vide seizure memo Digitally signed by VIRENDER Ex.PW1/D. He along with Ct. Gaje Singh took the said boy KUMAR BANSAL Date: 2023.07.18 16:59:19 +0530 before the DCP. He recorded statement of Ct. Gaje Singh, who gave the same in his own handwriting. He made endorsement and CA no.31/2023 Manish Kumar Vs. State Page 4/12 prepared the rukka Ex. PW3/A. He handed over the rukka to Ct. Inderpal and asked him to get the FIR registered. After about 90 minutes, Ct. Inderpal reached the spot and handed over copy of FIR and original rukka to him. He prepared the siteplan of the spot which is Ex. PW1/B (siteplan is actually Ex.PW1/E) . He arrested the accused vide memo Ex. PW1/B and his personal search was conducted vide memo Ex.PW1/C. He recorded the disclosure statement of accused which is Ex. PW3/B. Accused Manish was released on bail from the spot. On 30.06.2014, co- accused Manoj was produced before him at the PS by accused Manish Kumar. He interrogated Manoj Kumar and arrested him vide arrest memo Ex. PW3/C. His personal search was conducted vide memo Ex. PW3/D. Manoj Kumar made disclosure statement which is Ex. PW3/E. Accused Manoj Kumar was also released on bail. He had also taken finger prints of both the accused at Finger Print Cell. Finger prints were sent to Crime Branch for its result. He identified two admit cards and one wrist band as Ex.P1, Ex. P2 and Ex. P3.

8. During cross-examination, he stated that after apprehending accused Manish, Ct. Gaje Singh called him orally. When accused Manish was produced before him, the admit cards and wrist band were in the hand of Ct. Gaje Singh. There were 7- 8 police officials when Ct. Gaje Singh produced accused Manish before him. He admitted that on the date of incident at the main gate, roll number of the candidates were being checked and the candidate whose photograph matched with his admit card was allowed to enter. The distance between the ground D and the VIRENDER KUMAR BANSAL main gate is about 500 meter. He admitted that the wrist band Digitally signed by VIRENDER was provided to the candidates after their biometric were done. KUMAR BANSAL Date: 2023.07.18 16:59:27 +0530 He admitted that Ct. Gaje Singh produced accused Manish before CA no.31/2023 Manish Kumar Vs. State Page 5/12 him, he did not check the biometric of the accused. He also heard a rumour that a quarrel had taken place at the examination centre but he did not pay attention. This happened about 15 minutes prior to apprehension of accused Manish. He did not inquire if the admit card of the examination were available on internet. He denied the suggestion that accused Manoj had come to give paper and accused Manish had also accompanied Manoj or that Manoj had some altercation with biometric officials or that thereafter he ran away or that he in connivance with police officials falsely implicated the accused. Report of the finger prints bureau was admitted by the accused. Thereafter, prosecution evidence was closed.

9. Statement of accused was recorded under Section 313 Cr.P.C. Accused denied the evidence. He stated that it is a false case. The band and the roll number were actually found with Manoj and they were planted upon him. He was not found inside the ground. He was picked up from outside PTS ground. He did not wish to lead defence evidence and the case was fixed for arguments. The Ld. Trial Court after hearing arguments passed the impugned judgment and order on sentence which are under challenge in the present appeal.

10. Notice of the appeal was given to the State which was accepted by Ld. Addl. Public Prosecutor. Trial Court record was requisitioned.

11. I have heard Ld. counsel for the appellant, Ld. Addl. P. P for the State and perused the record.

12. Ld. counsel for the appellant submitted that it is settled law VIRENDER KUMAR that the prosecution has to stand on its own legs and prove the BANSAL Digitally signed by guilty of the accused beyond doubt. In the present case, the VIRENDER KUMAR BANSAL Date: 2023.07.18 16:59:35 +0530 appellant herein has been held guilty for offence punishable CA no.31/2023 Manish Kumar Vs. State Page 6/12 under Section 120-B of IPC. However, he has been acquitted of charge for offences punishable under Sections 419/511 IPC read with Section 120-B of IPC. Ld. counsel further submitted that in the present case, co-accused has already been held guilty on his plea of guilt for offences punishable under Sections 419/511 read with Section 120-B of IPC and was sentenced to fine of Rs.2,500/- in default to undergo two days simple imprisonment.

13. Ld. counsel submitted that to bring home the guilt of the accused/appellant, the prosecution has examined three witnesses. PW1 is the main witness, who alleges that he caught the accused and seen him tearing admit card having seal and was also wearing police wrist band. Ld. counsel submitted that infact accused/appellant has no occasion to enter inside the PTS as according to PW1 and PW3 usually there is police guarding the main gate of the PTS specially at the time of examination. He also stated that at the time of the examination, there are more police officials deputed at the main gate of the PTS. PW3 deposed that on the day of the incident, several police officials were performing their duty at the main entry gate and roll numbers of the candidates were being checked at the main gate and the candidate who match with photo on his admit card were getting entry. Ld. counsel submitted that if this is to be believed then no other person even the present accused/appellant could have entered as he was not the candidate.

14. Ld. counsel further submitted that as per evidence, seal on the admit card was affixed and wrist band was given only after biometric verification. As per the evidence, biometric verification VIRENDER KUMAR BANSAL of the present accused/appellant was got conducted but it did not Digitally signed match. There is nothing as to who got the biometric verification by VIRENDER KUMAR BANSAL Date: 2023.07.18 16:59:42 +0530 done, as it was only Manoj whose biometric verification was CA no.31/2023 Manish Kumar Vs. State Page 7/12 done.

15. It is further submitted that according to the admit card which is placed on record, the reporting time was 8:00 AM and the time of the written test was 10:00 AM meaning thereby that the exam had started at 10:00 AM but the present appellant has been apprehended by PW1 at 10:25 AM. There is no evidence on record that he had attempted to enter the enclosure where exam was being conducted.

16. Ld. counsel further submitted that even otherwise wrist band and admit cards were not seized from the possession of the accused/appellant but it was PW1, who handed over the same to PW3. Ld. counsel submitted that if biometric verification has already been done and only thereafter wrist band was given then Manoj should have been there which is denied by PW1 as well as PW3. Ld. counsel submitted that infact the accused/appellant has been falsely implicated. The police wrist band and the sealed admit card were issued to Manoj only but as some altercation took place which is also admitted by PW3 that it was the present accused/appellant who was apprehended after some altercation had taken place at the examination centre about which he had heard.

17. Ld. counsel further submitted that even otherwise, the accused/appellant has been acquitted of the charge under Sections 419/511 read with Section 120-B of IPC. He has been held guilty and convicted for offence under Section 120-B of IPC but there is no evidence to prove the same except the disclosure VIRENDER KUMAR statement which cannot be considered as evidence. It is prayed BANSAL that keeping in view all these facts, the order of the Ld. Trial Digitally signed by VIRENDER KUMAR BANSAL Court holding the accused/appellant guilty cannot be upheld and Date: 2023.07.18 16:59:49 +0530 prayed that the same be set aside.

18. Ld. Chief P.P for the State submitted that in the present case, the Ld. Trial Court has rightly held the accused/appellant guilty. The appellant was apprehended in PTS while he was tearing admit card when PW1 asked him as to why he has torn admit card he told him that he is having another one on which PW1 became suspicious. He took the accused/appellant for biometric verification but his verification was not found. He was also asked to sign but his signature did not tally with the signature appearing on the admit card. The admit card was also not found to be in the name of accused/appellant but in the name of Manoj and that is why he was apprehended. Ld. Chief P.P. further submitted that he has been held guilty and convicted for offence punishable under Section 120-B of IPC. Ld. Chief P.P. submitted it is settled law that conspiracies are generally hatched secretly and rarely there is any direct evidence. He was found in possession of admit card of Manoj for which he has not given any explanation. The roll number was also in the name of Manoj. Once biometric verification was done and then wrist band was also given, all these facts clearly show that he had entered into a criminal conspiracy with Manoj where Manish was to impersonate Manoj to cheat examination authority by appearing in the said examination. Ld. Chief P.P further submitted that it was for the Manish to have explained as this fact was in his knowledge but he has failed to explain the same that is why the Ld. Trial Court has rightly held him guilty. CONCLUSION VIRENDER

19. As per the evidence brought on record, accused/appellant KUMAR BANSAL herein was apprehended by PW1 near tin barricading though in Digitally signed by VIRENDER KUMAR BANSAL his examination-in-chief he has told tin shed but during cross- Date: 2023.07.18 16:59:57 +0530 examination he has specifically mentioned that it was tin CA no.31/2023 Manish Kumar Vs. State Page 9/12 barricading which he was referring to. It has come in his evidence that only those candidates were allowed to enter PTS whose face matched with the photograph on the admit card. Thereafter, biometric verification was to be done. The biometric verification of the present accused/appellant did not tally with the biometric record. The wrist band was also issued only after the biometric verification and affixing seal on the admit card. Now according to the prosecution story, Manoj had to appear in the examination but Manish came there but at the same time their own record does not prove the same if Manish came to take examination and obtained seal on the admit card and also got the wrist band then his record in biometric machine should have been there. Infact there is even no evidence to show that against this admit card any biometric verification was done or not. It is also important to note that the examination started at 10:00 AM whereas the appellant has been apprehended at 10:25 AM meaning thereby that the examination had already started, hence, there is nothing on record that he attempted or entered in the area of the examination and that is why the Ld. Trial Court has acquitted him of the offences punishable under Sections 419/511.

20. Now the question is whether any conspiracy was hatched. The record shows that even the co-accused was not convicted for conspiracy. He was convicted for offences punishable under Sections 419/511 read with Section 120-B of IPC and was sentenced to pay fine of Rs.2,500/- in default to undergo two days simple imprisonment.

VIRENDER

21. It is also known fact that conspiracy is generally hatched in KUMAR BANSAL secrecy and rarely there is any direct evidence but still there has Digitally signed by VIRENDER KUMAR BANSAL to be some evidence on record to reach that conclusion before a Date: 2023.07.18 17:00:05 +0530 person is held guilty that some conspiracy was hatched. The CA no.31/2023 Manish Kumar Vs. State Page 10/12 Supreme Court in case titled R. Shaji Vs. State of Kerala, AIR 2013 SC 651 has held that:

"A criminal conspiracy is generally hatched in secrecy, owing to which, direct evidence is difficult to obtain. The offence can therefore be proved, either by adducing circumstantial evidence, or by way of necessary implication. However, in the event that the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding the meeting of minds, which is essential in order to hatch a criminal conspiracy, by adducing substantive evidence in court. Furthermore, in order to constitute the offence of conspiracy, it is not necessary that the person involved has knowledge of all the stages of action. In fact, mere knowledge of the main object/purpose of conspiracy, would warrant the attraction of relevant penal provisions. Thus, an agreement between two persons to do, or to cause an illegal act, is the basic requirement of the offence of conspiracy under the penal statute."

22. The Hon'ble High Court of Delhi in the case titled Ram Kishan v State, 2015 (221) DLT 74 has held as follows:

"38. In order to prove the charge of conspiracy it is necessary that the prosecution should prove the names of the place or places where it was hatched, names of the persons hatching it and how was it hatched. But in the present case, except disclosure statements, nothing has emerged on record to show that any person conspired with the appellant to commit the offence and for the said reason, we do not find any reason to convict appellant/Raj Kumar @ Bhola under Section 120B of Indian Penal Code."

23. In the present case, there is no such evidence brought on record except the disclosure statement of the appellant herein and the co-accused Manoj. It is in evidence that Manoj is a friend of Manish. Under the circumstances, if appellant is found in VIRENDER possession of admit card of Manoj that itself does not amount to KUMAR BANSAL conspiracy. It was for the police to explain how a candidate Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.07.18 17:00:14 +0530 whose biometric verification has not been done got wrist band and got stamped his admit card escaped from examination area CA no.31/2023 Manish Kumar Vs. State Page 11/12 and then handed over the wrist band and admit card to some other person, who according to PW3 could not even enter PTS as according to PW3 admit cards were checked at entry point and if the face of the person carrying admit card tallied with the photograph appearing on admit card only then candidates were allowed to enter and no companion was allowed.

24. Keeping in view the above discussion and facts, there is nothing on record to show that there was any conspiracy. Except the disclosure statements, there is nothing on record brought by the prosecution. In my opinion, the Ld. Trial Court order convicting the appellant under Section 120-B is not sustainable. The same is set aside. Appeal is,accordingly, allowed. Appellant/accused is directed to furnish fresh B/Bond in the sum of Rs.10,000/- with one surety in the like amount in term of Section 437-A Cr.P.C within a week before the Ld. Trial Court.

25. Copy of the order along with Trial Court record be sent back.

VIRENDER

26. Appeal file be consigned to the Record Room. KUMAR BANSAL Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.07.18 17:00:21 +0530 Announced in the open (V. K. BANSAL) court today i.e on 18th Principal District & Sessions Judge, July, 2023 North East, Karkardooma Courts, Delhi.