Delhi District Court
State vs . Amarjit Kaur on 28 March, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR No. : 193/01
Police Station: Chanakaya Puri
U/S : 419/420/468/471/511 IPC R/w 12 PP Act.
IN THE MATTER OF
STATE
VS.
Amarjeet
D/o Sh. Gian Singh
R/o Village Badyala, P.O. Argual PS Gardiwal, Dist. Hoshiarpur, Punjab.
Date of institution: 15.01.2003
Date of reserving judgement/Order: 26.03.2012.
Date of Pronouncement of Judgement/Order: 28.03.2012.
Final Order: Acquitted.
Brief statement of reasons for such decisions:
1.The case of the prosecution in brief is that on or about 05.06.2001 at Canadian Embassy, Chanakaya Puri within the jurisdiction of PS Chanakaya Puri accused Amarjeet Kaur attempted to cheat the said embassy by submitting false and fabricated documents in support of her claim for visa and further accused impersonated as Manjit Kaur before the passport authority and got issued passport no. A9080799 on false name and submitted said passport to the aforesaid embassy in attempt to cheat the said embassy for procuring visa and on these allegations present FIR U/s 419/420/468/471/511/120- B IPC was registered against the accused.
2. Charge sheet in the matter was filed on 15.01.2003. Cognizance was taken by my Ld. Predecessor. A charge U/s 420/468/471/511 IPC and Section 12 of the Passport Act was settled against accused on 14.02.2005 to which accused pleaded not guilty and claimed trial.
3. Thereafter prosecution has examined as many as 6 witnesses in support of its case.
(i) PW 1 Ct. Dharamvir deposed (as recorded) in his examination in chief that on STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 1 of 17 05.06.2001, he was posted as Ct. at PS Chanakaya Puri and on that day was on patrolling duty alongwith SI Satish Malik and lady Ct. Prabha and while they were at Canadian Embassy a written complaint alongwith accused Amarjeet Kaur present in the Court and some documents were handed over to the IO. IO handed over him a rukka to which he took to PS and got registered case FIR No. 193/01 and on return he handed over the carbon copy of FIR and original rukka to IO. Accused was arrested. Personal search Ex. PW 1/A was conducted with the help of lady Ct. Prabha bearing his signatures at point A. Documents were seized vide seizure memo Ex. PW 1/B. He identified the accused present in the Court.
In his cross-examination by Ld. Defence Counsel Mr. R.A. Bhat, PW 1 deposed that SI Satish Malik and Lady Ct. Prabha had left the PS on 05.06.2001 at about 09.30 am after making a departure entry in the Roznamcha. The spot is at a distance of about 3 kilometers from the PS. They kept on patrolling in the vicinity of Chanakaya Puri and reached the spot for the first time at about 04.15 pm. All of them remained together in patrolling and none of them went to the PS or any other place from 09.30 am to 04.15 pm. The complaint was received at the gate of embassy. 2-3 guards of the embassy were present there. The public persons were also present there and passersby were also coming and going and 10-12 public persons were standing there in a queue. The IO requested 3-4 public persons to join the investigation but they refused. The IO did not take any action against them and he cannot give the description or any details about them. He cannot say whether they were Sikhs or Monas. He left the spot with the rukka at 05.00 pm and came back alongwith the copy of FIR at about 06.00 pm. He could not tell as to what proceedings took place the spot in his absence. After 06.00 pm, they remained at the spot for about 30-40 minutes during this time the accused was arrested and the personal search memo prepared. The witness stated that he does not know as to whether any site plan was prepared by the IO or not. He did not go to the PS and left for patrolling alone thereafter and had returned to the PS at about 09.00 pm. He did not join the investigation of this case after that day. He denied the suggestion that the proceedings of this case were manipulated or that he has deposed falsely against the accused at the instance of the IO. He further denied the suggestion that accused has been falsely implicated in this case.
(ii) PW 2 ASI Ramesh Chand has proved on record the copy of FIR as Ex. PW 2/A and STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 2 of 17 endorsement on rukka as Ex. PW 2/B.
In his cross-examination by Ld. Defence Counsel Mr. R.A. Bhat, PW 2 deposed that it took him about half an hour to record the FIR and Ct. Dharamveer left alongwith copy of FIR at 06.00 pm from the PS. He denied the suggestion that the proceedings of the present case have been manipulated. He did not produce the Roznamcha register. He voluntarily deposed that it was not required.
(iii) PW 3 WHC Prabha deposed (as recorded) in her examination in chief that on 05.06.2001, she was posted at PS Chanakaya Puri as Ct. on that day she alongwith SI Satish Malik and Ct. Dharamveer were on patrolling duty. At about 04.00 / 04.30 pm, they reached at Canadian High Commission where one official of Canadian High Commission namely Mr. Karol met them and handed over accused Manjeet Kaur alongwith some documents and her passport and also told that accused intended to go abroad on the basis of forged documents, (objected by Ld. Defence Counsel). IO prepared rukka and got the case registered through Ct. Dharamveer. On interrogation accused Manjeet Kaur present in the Court made disclosure statement and told that her original name was Amarjeet Kaur. (objected by Ld. Defence Counsel). Accused was arrested vide memo Ex. PW 3/A. Her personal search conducted vide memo Ex. PW 1/A. They also visited house of the accused at village in District Hoshiyarpur, Punjab where search of her house was conducted vide memo Ex. PW 3/B and copy of the transfer certificate was recovered from the said house search and same was taken into possession and seized vide memo Ex. PW 1/B. She deposed that all memos bears her signatures as a witness.
In her cross-examination by Mr. R.A. Bhat, Ld. Defence Counsel PW 3 deposed that she alongwith SI Sastish Malik and Ct. Dharamveer had left the PS for patrolling on 05.06.2001 after making a departure entry in the afternoon. They had left the PS in the vehicle. She could not remember the place where they left the vehicle and were patrolling on foot in the vicinity of the Canadian High Commission. The official from the High Commission met them at the gate of the Commission and the proceedings were conducted inside the gate of the Commission in the reception hall. She did not pay any attention to the fact whether anybody else was also present outside or inside the gate of Commission. However, lot of person were present inside. She could not remember if the IO made any STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 3 of 17 efforts to join anyone from amongst those persons to witness the proceedings. The IO took into possession the documents before writing the tehrir. Thereafter, the IO wrote the tehrir and sent Ct. Dharamvir for registration of the case. After Ct. Dharamvir left the spot with the rukka, IO recorded the disclosure statement of the accused and the personal search of the accused was conducted in the absence of Ct. Dharamvir. After the return of Ct. Dharmvir to the spot after the registration of the case, the three of them alongwith the accused went to the PS. The witness could not remember the time when they reached the PS alongwith the accused. She could not even say whether it was 06.00. 07.00, 08.00, 09.00 or 10.00 pm. She could not remember whether any arrival was made. She had also joined the investigation of this case on 06.06.2001, when they went out of the station. SI Satish Malik, Ct. Dharamvir and herself had gone out of station. They came back to Delhi in the evening on 07.06.2001. They recorded their departure on 06.06.2001 and also their arrival on 07.06.2001. She could not remember the name of the village where they had visited. They visited the said village in a private vehicle. She could not tell who was owner of the said vehicle. Ct. Dharamvir drove the vehicle. The IO had requested 2-4 persons in the village to witness the proceedings but they refused. She could not give the names or descriptions of those persons. IO did not take any action against them. They had informed the PS within the jurisdiction of which the said village was located about their arrival but no body from the PS joined them. She could not remember if any proceedings were conducted in the said PS or if any efforts were made to inform the Elaka Magistrate. The house which they visited was big and only one story was constructed. The house comprised of 2-3 rooms. The accused was produced before the Court in Delhi after her arrest, after they returned from out station. Accused was produced on 08.06.2001. She did not join the investigation of this case after coming back from the village in Hoshiyarpur. The witness denied the suggestion that proceedings of the present case have been manipulated in PS Chanakaya Puri or that accused has been falsely implicated or that she was deposing falsely. She further denied the suggestion that the fact that the documents supposed to have been prepared in the absence of Ct. Dharamvir bearing the particulars of the case belies the prosecution case. She further denied the suggestion that she had not joined the investigation as stated by her or that she has deposed falsely.
(iv) PW 4 Balbir Singh from Passport Office Jallandhar deposed (as recorded) in his
STATE VS. Amarjit Kaur
FIR No. : 193/01
Police Station: Chanakaya Puri
U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 4 of 17
examination in chief that he was working in the above said office since 1988. After going through the verification report in respect of passport No. A-9080799. He deposed that the report is duly signed by Mr. A.K. Sapra the then superintendent of above said office at point A. The above mentioned passport was issued to Manjit Kaur W/o Dawinder Singh the above said report was Ex. PW 4/A. He further deposed that he can identify the writing and signature of Mr. A.K. Sapra as he had seen him writing and signing in official course of day. He also produced a computer generated record pertaining to the said passport running into 31 pages. He proved the said record as Ex. B-1 to B-31 (objected to by the Ld. Defence Counsel) In his cross-examination by Mr. R.A. Bhatt, Ld. Defence Counsel PW 4 deposed that he has never dealt with the case of the above said passport personally in any manner. He was working in the year 2000-03 in the Section where the passport applications were given a file number. The report Ex. PW 4/A was not prepared in his presence as the said section is a different section. He stated that he cannot identify the signatures of the issuing authority on Ex. PW 4/B-6. He admitted that the record Ex. PW 4/B to B-31 was not taken out from the computer by him and the same was given to him by the concerned who deputed him to appear before the Court. He further admitted that the name of the signatory is not mentioned on Ex. PW 4/A nor does it bear any seal.
(v) PW 5 Mr. Ashok Kumar Dutta deposed (as recorded) in his examination in chief that he had worked with Mr. G.S. Gill, who was the Principal of the Kendriya Vidyalaya No. 1, Jhallandhar Cantt from Year 1999 to Year 2007. He had seen him writing and signing during the ordinary course of his duty. He further deposed that he identify the signatures of Mr. G.S. Gill. The verification letter dated 21.09.2001 Ex. PW 5/A was bearing signature of Sh. G.S. Gill at point A. In his cross-examination by Sh. R.A. Bhat, Ld. Defence Counsel PW 5 deposed that he had joined the School in June 2007. However, PW 5 voluntarily deposed that Mr. G.S. Gill retired from the school on 31.08.2007. He admitted that neither he nor Mr. G.S. Gill were posted in the said School in the year 1993 and 1994.
(vi) PW 6 Inspector Satish Malik deposed (as recorded) in his examination in chief that on 05.06.2001, he was posted as SI at PS Chanakaya Puri and on that day at about 04.15 PM, he STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 5 of 17 alongwith Ct. Dharamvir and Lady Ct. Prabha were on patrolling duty near Immigration Section of Canadian High Commission, Chanakaya Puri, Delhi. There he met Mr. Larry Carroll, Counsellor Canadian High Commission alongwith the present accused, who had applied for Canadian Visa under the name of Manjeet Kaur, who later on disclosed her real name as Ms. Amarjeet Kaur. Mr. Carroll handed over a complaint against her for applying for visa on the basis of fake documents alongwith the complaint, the complainant had handed over her visa application form Ex. PW 6/F, sponsorship letter Ex. PW 6/G and a passport numbered A-9080799 issued in the name of Manjeet Kaur Ex. PW 6/E. He further deposed that on the basis of complaint, he prepared a rukka Ex. PW 6/A bearing his signature at point A and handed over the same to Ct. Dharamvir for registration of the FIR. Ct. Dharamvir went to the PS and got the case registered and he came back at the spot and handed over to him the copy of FIR already Ex. PW 2/A and original rukka. The PW 6 further deposed that he interrogated the present accused, whereupon, she disclosed her real name as Ms. Amarjeet Kaur. He arrested the accused vide arrest memo Ex. PW 3/A at 07.00 PM bearing his signature at point B. Lady Ct. Prabha carried out personal search of the accused on his instructions vide PSM Ex. PW 1/A. He identified his signatures on the same at point C. Thereafter, disclosure statement of the accused was recorded Ex. PW 6/B bearing his signature at point A. The accused was produced before the Court on the following day i.e. on 06.06.2001 and PC remand was obtained from the Hon'ble Court. During PC Remand he alongwith Ct. Dharamvir, Lady Ct. Prabha and accused went to the house of the accused in village Arguwal, District Hoshiarpur, Punjab. On 07.06.2001, from her house at her instance her school transfer certificates photocopy issued vide TC No. 711 by Kendriya Vidyalaya No. 1, Jhallandhar Cant, mark B was seized vide seizure memo Ex. PW 1/B bearing his signature at point B. A house search memo was also prepared and the same as Ex. PW 3/B bearing his signature at point B. He recorded the statement of the witnesses U/s 161 Cr. PC from time to time. He sent a request for verification of the passport of the accused and her school transfer certificate. He obtained the reports of school T.C and the same were Ex. PW 5/A. The witness further deposed that during her police custody on 05.06.2001, he had obtained the specimen signature and handwriting of accused Amarjeet Kaur. Her specimen handwriting and questioned documents were sent to the GEQD, Hyderabad for expert opinion. He had collected the result of GEQD, which runs into two pages and the same was Ex. PW 6/C. According to report of GEQD, the signature of the applicant on the passport and the visa application form matched with the STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 6 of 17 specimen handwriting / signatures of the accused. He had applied for sanction U/s 15 PP Act and the sanction was Ex. PW 6/D. After completion of the investigation, he filed the challan in the court for trial.
In his cross-examination by Mr. Utkarsh, Ld. Defence Counsel PW 6 deposed that he does not remember the exact time when he left the PS for patrolling, however, he left the PS alongwith Ct. Dharamvir and Lady Ct. Prabha. He had made the departure entry. The distance between the spot and the PS is about one Kilometer. He received the complaint and all proceedings were conducted outside the Immigration Section of Canadian High Commission. No public person was present at that time as the embassy was closed. No guard of the embassy was present outside the embassy, where he received the complaint. As there was no public person present there so the question of requesting any public person to join the investigation does not arise. Ct. Dharamvir left the spot alongwith rukka at about 05.00 pm and came back at the spot at about 06.30 pm. No proceedings were conducted in the absence of the Ct. Dharamvir at the spot. They left the spot at about 07.15 PM alongwith the accused. They all four persons came to the PS and they reached in the PS at about 07.45 PM. No site plan was prepared by him. They were patrolling on foot. The documents which were handed over to him by the officials of the high commission were taken into possession before writing the Tehrir.
PW 6 further deposed that they came back to Delhi on 08.06.2001 from Punjab. They had gone to District Hoshiarpur in Pvt. Car, whose number he could not remember. The said vehicle was being driven by a private person. In the village, he requested 4-5 public persons to join the investigation but none of them agreed. He could not tell the name of anybody, however, they all were Sardars. He could not recollect whether he had informed the PS within the jurisdiction of which the said village was located about their arrival or not. No body from that PS joined the investigation. No proceedings were conducted in that PS. No efforts were made to inform the Area Magistrate. The house of the accused in the said village was single storey. There were 3-4 rooms in the said house. The witness denied the suggestion that nothing has been seized at the instance of the accused or that the proceedings of this case have been manipulated by him in order to falsely implicate the accused or that he was deposing falsely.
STATE VS. Amarjit Kaur
FIR No. : 193/01
Police Station: Chanakaya Puri
U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 7 of 17
4. No other PW was examined by the prosecution and the PE was closed. Statement of the accused was recorded on 21.12.2011 wherein the accused stated that the proceedings of the case have been manipulated against her and she was falsely arrested. She is innocent and she has been falsely implicated in the present case. She has not committed any offence and the present FIR was false. Accused declined to lead DE. Thereafter the matter was posted for Final arguments.
5. I have heard Ld. APP for State and counsel for the accused and perused the record.
6. Before considering the evidence coming up on record, it will be relevant here to mention the Provisions for which the accused has been charged.
Section 420 IPC Provides:
Cheating and dishonestly inducing delivery of property:
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 468 IPC Provides:
Forgery for purpose of cheating:-
Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 8 of 17 Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
7. On 15.06.2001 a complaint was lodged by Mr. Larry Carroll, Counsellor, Immigration Control Officer, Canadian High Commission, Chanakaya Puri, New Delhi to the SHO PS Chanakaya Puri therein submitting that one Ms. Manjeet Kaur has applied for Canadian Visitor Visa and in support of her application she has presented one invitation letter from her alleged brother Mr. Santokh Kahlon.
It was revealed on examination by the said embassy that the notary public signatures on invitation was STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 9 of 17 counterfeit. It was further alleged that during interview by the embassy the said lady revealed that she was unable to provide her brother's name. On telephonic conversation with Mr. Santokh Kahlon, it was revealed that he has never invited any one from India and he has only one sister namely Ms. Man Mohan Kaur. On the basis of this complaint lodged by the Immigration Control Officer the present FIR No. 193/01 PS Chanakaya Puri was registered against the accused Amarjeet Kaur.
8. As per the charge-sheet, the IO has reported that on query during investigation the accused Manjeet Kaur revealed that her real name is Amarjeet Kaur D/o Sh. Gain Singh. She further disclosed that due to poverty one of her uncle Mr. Sewa Singh, who was settled in Canada offered her to settle her in Canada and got prepared one passport in the name of Manjeet Kaur through one of his contacts, whom she does not knew. She further stated that the said fake sponsorship letter was sent by her uncle Mr. Sewa Singh. IO has further reported that on investigation, however, passport in her real name could not be recovered despite best efforts. However, one school leaving certificate was recovered from the house of accused in her real name Amarjeet Kaur, it was verified from the school and found to be genuine. IO has further reported that passport bearing no. 9080799 was also verified from RPO Jhallandhar and found to be genuine. On the basis of these allegations, the charge-sheet in the matter was filed and a charge U/s 420/511 IPC and 468/471 IPC and Section 12 of Passport Act was settled against the accused.
9. To bring home conviction, the prosecution has to prove that the accused Amarjeet Kaur has attempted to cheat the Canadian High Commission by submitting false and fabricated documents in support of her visa application form and she also impersonated herself as Manjeet Kaur before the passport authority and got issued passport in different name. The prosecution to prove the same has examined six witnesses.
10. Complainant Mr. Larry Carroll, however, could not be examined despite ample opportunities being given to the prosecution. Process to the complainant was received back repeatedly unserved with report from Mr. Rick Shakespeare, Migration Integrity Officer, Canadian High Commission, Chanakaya Puri that the complainant Mr. Larry Carroll has departed India and no STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 10 of 17 representative of the Canadian High Commission will attend the Court. In view of the said reports, the complainant in the present matter could not be examined despite ample opportunities being given.
11. The prosecution in the present matter has examined one witness Sh. Balbir Singh from RPO Jhallandhar as PW 4. PW 4 has proved on record the verification report in respect of passport no. 9080799 as Ex. PW 4/A. He further deposed that he can identify the signatures of Mr. A.K. Sapra as he has seen him writing and signing during his official course of duty. In his cross-examination by Ld. Defence Counsel, however, he has admitted that he has never dealt with the case of the above said passport personally in any manner. He also admitted that report Ex. PW 4/A was not prepared in his presence as the said section is a different section. He stated that he cannot identify the signatures of the issuing authority on Ex. PW 4/B-6. In view of the testimonies of this witness, hence, it becomes very clear that this witness has no where deposed that the report Ex. PW 4/A was genuine or not. Furthermore, this witness has also produced on record the computer generated report pertaining to said passport mark as Ex. PW 4/B to B-31. However, as vehemently argued by the Ld. Counsel for the accused that said record was not admissible in evidence U/s 65-B of the Evidence Act being not proved in accordance with law. No other witness has been examined by the prosecution to prove that the passport produced on record was a forged document in some other name produced before the complainant.
12. Further, the prosecution has examined Mr. Alok Kumer Dutta as PW 5 from Kendriya Vidyalaya no. 1, Jhallandhar Cant. He has identified signatures of Mr. G.S. Gill, Principal of the said school on Ex. PW 5/A, however, in his cross-examination he admitted that he has joined the school in June 2007 and Mr. Gill retired from the school on 31.08.2007. He further admitted that neither he nor Mr. Gill was posted in the said school in the year 1993 and 1994. Even otherwise, the said document Ex. PW 5/A only shows that the transfer certificate no. 711 dated 09.02.1994 was issued in favour of accused Amarjit Kaur D/o Sh. Gian Singh, however, the same does not in any manner link the accused with the offences alleged in the complaint.
13. From the testimonies of these two witnesses, hence, it is clear that the prosecution has STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 11 of 17 failed to prove that the accused has procured false passport in some different name and also has produced the same before the complainant.
14. Ld. Counsel for accused has argued that the FSL result Ex. PW 6/C produced on record was not admissible being incomplete record. He submitted that the expert has not been able to express any opinion on the writings marked Q-1, Q-4 and Q-5. Q-1 happen to be the visa application for temporary entry to Canada and Q-4 and Q-5 happen to be the signatures of the notary public and Santokh Kahlon on the invitation letter attached with Q-1 i.e. Visa application. Thus, the prosecution has not been able to link the accused with the aforesaid document, which are the basis of the prosecution case.
15. Ld. Counsel for accused has further argued that the experts opinion to the effect that the writings marked Q-2 and Q-3 have been written by the person who wrote writings marked S-5 to S-8 is on the face of it false.
16. He submitted that Q-2 is a signature on the visa application. Q-3 is the signatures on the passport in the name of Manjeet Kaur. Needless to submit that the said passport has not been proved by the prosecution. During the evidence of PW 6, the passport has been marked as Ex. PW 6/E but PW 6 by no stretch of imagination would be competent to prove the passport as he had not dealt with the same in any manner except for having allegedly received the same from some Larry Carroll. Be that as it may, a perusal of Q-2 and Q-3 would show that the both are inter se different signatures. The question of the writer of S-5 to S-8 having written Q-2 and Q-3 is thus far fetched and the opinion false.
17. It is further argued by the Ld. Counsel for the accused that in any case the expert's opinion cannot be made use of by the prosecution as the specimen writing of the accused were obtained without the permission of the Court. In this regard Ld. Counsel for accused has relied upon:
Sukvinder Singh's 1994 Supreme Court Cases (Cri) 1376 and Rakesh Kumar's Case, 2004(1)JCC 111 STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 12 of 17 wherein it was held:
"17. Moreover, the alleged specimen signatures / handwriting / thumb / finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior premission from the Court. Facts in the case of Sikhvinder Singh and others Vs. State of Punjab (1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures / writing / thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (Supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (Supra) it follows that the specimen writing / thumb impression / finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert / Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."
STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 13 of 17
18. From the arguments advanced on behalf of the accused and also on perusal of record, it is revealed that no opinion has been expressed by the FSL official on the writing marked Q-1, Q-4 and Q-5. Q-1 happen to be the visa application and writing Q-4 and Q-5 happen to be the signatures of the notary public and Santokh Kahlon on the invitation letter attached with Q-1 i.e. Visa application. From the said report, hence, it is clear that the prosecution has failed to link the accused with the alleged forged invitation letter, which is the basis of the prosecution case.
19. Furthermore, in view of the law laid down in judgments Sukvinder Singh's 1994 Supreme Court Cases (Cri) 1376 and Rakesh Kumar's Case, 2004(1)JCC 111, it is clear that in the present case also no prior permission from the Court has been obtained by the IO before obtaining the specimen handwriting and signatures of accused for comparison. The report of the handwriting expert even otherwise is thus rendered to be of no consequence at all and cannot be used to connect the accused with crime.
20. Furthermore, it is very clear from the record that the Sanctioning Authority in the matter has not been examined in regard to grant of sanction by the prosecution despite ample opportunities being given. IO has not stated anything about the Sanction Order. He has not identified the signatures of the sanctioning officer. In these circumstance, sanction U/s 15 of the Passport remains unproved. The accused, hence, cannot be prosecuted for the offence U/s 12 Passport Act.
21. On perusal of the testimonies of the witnesses glaring contradictions are also found in their testimonies.
(a) PW 1 deposed that they had left the PS on 05.06.2001 at about 09.30 am after making departure entry. PW 3 however, submitted that they have left the PS in the afternoon after making departure entry. Whereas, PW 6 could not remember the time of departure. The departure entry, however, has not been proved on record.
(b) Furthermore, PW 1 deposed that the complaint was received at the gate of embassy where 2-3 guards of the embassy were present alongwith some public persons and passersby. PW 3 STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 14 of 17 however, submitted that the official of the High Commission met them at the gate of the commission and the proceedings were conducted inside the gate of the commission in the reception hall. He did not pay any attention as to whether any other person was present inside or outside the gate of the commission. PW 6 in total contradiction stated that the proceedings were conducted outside the immigration section of the Canadian High Commission and no public person was present at that time as the embassy was closed. He further deposed that no guard of the embassy was present outside the embassy, where he received the complaint. These contradictions in the testimonies of the above witnesses create a strong doubt whether the proceedings as alleged were actually carried out or not more specifically when no departure or arrival entry of the said witnesses have been proved / produced on record.
(c) Further PW 1 deposed that IO has requested 3-4 public persons to join the investigation but they refused. PW 3 deposed that he does not remember if the IO made any effort to join any public person during investigation. However, PW 6 deposed that there were no public persons, hence, no question of requesting any public person to join investigation arose.
(d) The PW 1 further deposed that he left the spot with the rukka at 05.00 pm and came back alongwith the copy of FIR at 06.00 pm and remained at the spot for about 30-40 minutes and during this time accused was arrested and his personal search memo was prepared. He did not go to the PS again and left for patrolling all alone and returned to the PS at about 09.00 pm. Whereas, PW 3 has stated that after constable Dharamvir left the spot with the rukka, IOI recorded the disclosure statement of the accused and the personal search of the accused was conducted in the absence of the Ct. Dharamvir. After the return of Ct. Dharamvir to the spot after the registration of the case, the three of them alongwith the accused went to PS. He does not remember the time when they reached the PS. He could not say if it was 6,7,8,9 or 10 pm. However, PW 6 deposed that Ct. Dharamvir left the spot with the rukka at about 05.00 pm and came back at the spot at about 06.30 pm. No proceeding was conducted in the absence of Ct. Dharamvir at the spot. They left the spot at about 07.15 pm alongwith the accused. They all four came to the PS at about 07.45 pm. These contradictions in the testimonies of the witnesses again create doubt on the veracity of the case of the prosecution.
STATE VS. Amarjit Kaur
FIR No. : 193/01
Police Station: Chanakaya Puri
U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 15 of 17
(e) The PW 1 deposed that he did not join the investigation of this case after that day.
Whereas, PW 3 deposed that he had also join the investigation of this case on 06.06.2001 when they went out of station. He further deposed that PW 6, PW 1 and himself had gone out of station and came back to Delhi on 07.06.2001. However, PW 6 deposed that they back to Delhi on 08.06.2001 from Punjab. PW 1 has specifically deposed that he has never joined the investigation after the date of arrest of accused. However, PW 3 categorically deposed that he alongwith PW 1 and PW 6 had gone to Punjab for investigation. PW 6 also stated that PW 1 has accompanied them for investigation at Punjab.
(f) Further, PW 3 deposed that they had visited some village in Punjab in a private vehicle, which was being driven by Ct. Dharamvir. PW 6 however, deposed that the car was being driven by a private person.
22. As observed above there are material contractions in the testimonies of three witnesses, which are fatal to the case of the prosecution as in view of these testimonies it becomes doubtful as whether the investigation were carried out at all or not. Furthermore, in the absence of the complainant the original complaint filed on record remains unproved. The fact of presentation of alleged forged document remains unproved. In the absence of the complainant, there is no linking evidence produced on record to connect the accused with the alleged offence. It was the complainant only who could have proved on record that it was the accused who presented the alleged document before him.
23. The genesis and origin of the prosecution case is hence, falsified and unreliable. The seizure memo produced on record does not mention that the said document was handed over to the IO by complainant nor does it bear his signatures as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. In this regard, the following Judgements can also be relied upon:
(i) Nadeem Vs. State 2010 (4) JCC 2842 wherein it was held that it is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 16 of 17 to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution.
(ii) Further, in Bhim Sen Vs State (NCT of Delhi) 2001 (60) DRJ 489, the Hon'ble High Court observed that despite ample opportunities if the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
24. In the absence of the complainant, the testimony of other witnesses is all hearsay and in the circumstances of the present case, it is insufficient to prove guilt of the accused and cannot be relied upon to upheld conviction.
25. In my considered view in the absence of the complainant and in view of the testimonies of the other witnesses, there is nothing coming upon on record to prove that the said document was forged document and presented by the accused before the official of the said embassy.
26. In my considered view, the prosecution has totally failed to prove its case beyond reasonable doubts and hence, accused is certainly entitled to the benefit of doubt. The accused hence stands acquitted for the offences alleged against her. Her bail bond stands cancelled. Her surety stands discharged. Endorsements be cancelled.
File be consigned to Record Room.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 28.03.2012) METROPOLITAN MAGISTRATE This Judgment contains 17 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI STATE VS. Amarjit Kaur FIR No. : 193/01 Police Station: Chanakaya Puri U/S : 419/420/468/471/511 IPC R/w 12 PP Act. 17 of 17