Delhi District Court
State vs . Virender on 30 August, 2014
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS COMPLEX, NEW DELHI
State Vs. Virender
FIR No: 352/12
PS: Saket
U/s: 468, 471, 474 and 120 B IPC
JUDGMENT
1. Sl. No. / ID No. of the Case : 02406R0024272013
2. Date of Commission of Offence : 22.11.2012
3. Date of institution of the case : 24.01.2013
4. Name of the complainant : Sh. Anuj Aggarwal
MM, Court Room No. 515, Saket
Court, New Delhi.
5. Name of accused, parentage : Virender
S/o Sh. Rajender,
R/o H.No. W86/112, JJ Colony,
Inderpuri, New Delhi.
6. Offence complained or proved : U/s: 468, 471, 474 and 120 B IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted U/s 468 IPC.
9. Date of Final Order : 30.08.2014.
BRIEF REASONS FOR SUCH DECISION :
FIR No. 352/12 , PS Saket Stave Vs. Virender 1 of 15
01. Accused Virender S/o Sh. Rajender has been charged U/s 120B, 468, 471 and 474 IPC. It is alleged against him on judicial record that he had entered into criminal conspiracy with another Under Trial Prisoner Shukla to prepare forged application (permission) for use of prohibited articles by using forged stamp of Sh. Anuj Aggarwal, Ld. Metropolitan Magistrate01 (SE). Accused is also alleged to have committed forgery for purpose of cheating having prepared forged permission using forged stamp of Ld. MM and dishonestly and fraudulently used such forged application as genuine for deceiving Superintendent, Rohini Jail. In the alternative, he is alleged to have been found in possession of forged permission having knowledge of document being forged and with fraudulent and dishonest intention to use the same as genuine.
02. Prosecution's case gathered from chargesheet reveals that a letter of Superintendent, District Jail, Rohini addressed to complainant Sh. Anuj Kumar Aggarwal, Ld. MM01 (SE) Room No. 515, 5 th Floor, Saket Court Complex, was received in his court on 23.11.2012. Having perused the copy of application (permission), complainant recorded the signature and seal of court upon permission to be forged and directed SHO, PS Saket to register FIR under appropriate provisions of law against Under Trial Prisoner Virender S/o Sh. Rajender.
03. FIR for offences U/s 468 and 471 IPC was registered at PS Saket on the same day vide entry no. 42A at 21:00 hrs and investigation was marked to SI FIR No. 352/12 , PS Saket Stave Vs. Virender 2 of 15 Bharat Lal (IO). Accused Virender S/o Sh. Rajender was produced in court upon production warrant on 27.11.2012 and was formally arrested. His disclosure statement was recorded by IO and one day police custody remand of accused was obtained from court on 27.11.2012 for effecting recovery of forged application (permission). Accused was thereafter taken to Rohini Jail where Sh. Subhash Batra, Asstt. Superintendent, Jail Rohini produced the forged application (permission) to IO and the same was seized by IO. Specimen signatures and handwritings of accused Virender were obtained by IO on 29.11.2012 and were sent to FSL, Rohini for expert's opinion. Offence U/s 474 & 120B were added in the chargesheet and the same was filed in court.
04. Cognizance of offence was taken on 24.01.2013 and copy of challan and documents (57 pages) was supplied to accused against receiving. Later, supplementary chargesheet U/s 173(8) Cr.P.C alongwith expert's report, questioned document and specimen signatures and documents was filed on 22.01.2014 and copy thereof (22 pages) was supplied to accused against receiving. Accused Virender has been charged U/s 120B, 468, 471 / 474 IPC on 07.02.2014 and he has pleaded not guilty and claimed trial.
05. Prosecution has examined six witnesses including complainant Sh. Anuj Aggrawal, Ld. MM (PW01), Sh. Subhash Batra, Asst. Superintendent, District Jail, Rohini (PW02), Sh. Anurag Sharma, Asst. Director (Documents), FSL, Rohini FIR No. 352/12 , PS Saket Stave Vs. Virender 3 of 15 (PW06) and police witnesses including SI Bharat Lal (IO) on judicial record in support of its allegations against accused Virender.
06. After closure of prosecution evidence, accused Virender was examined under section 313 Cr.P.C and has denied the allegations and depositions against him as false. He has disputed testimony of PW Sh. Subhash Batra and requested the court to summon the video footage of entry gate of District Jail Rohini for impeaching his testimony. Accused has however not denied IO's averment about obtaining his specimen writings and signatures on 29.11.2012, nonetheless has denied to have written the forged application and also alleged false implication by alluding to some complaint against Sh. R.N Meena, Asst. Jail Superintendent, Jail No. 3 Tihar.
07. Accused Virender has also wished to lead evidence in his defence and filed his application for calling CCTV footage dated 22.11.2012 of 'Deodi' of Rohini Jail and 'In and Out' register of Rohini Jail. However, after submissions were addressed upon his application and after seeing reason that in view of his denial about handing over of alleged forged application to PW Sh. Subhash Batra, no video footage of a negative fact could be produced, said application was disposed of and upon the submission of accused and Ld. LAC Sh. Tej Narain, DE was closed on 12.08.2014.
08. Final arguments have been addressed by Ld. APP for State and Ld. LAC Sh. Tej Narain.
FIR No. 352/12 , PS Saket Stave Vs. Virender 4 of 15
09. Ld. APP for the State has argued for conviction of accused Virender for offences alleged in the chargesheet by referring to testimonies of Sh. Subhash Batra (PW02) and Sh. Anurag Sharma (PW06).
10. Ld. LAC Sh. Tej Narain per contra has argued for acquittal of accused Virender by alleging false implication of accused by police. He has referred to cross examination of PW SI Bharat Lal to submit that Sh. D. K. Aggarwal is not known to him and he has admitted of having neither met nor joined any such person in the course of investigation. Ld. LAC has next adverted to the crossexamination of PW Sh. Subhash Batra for submitting that witness (Jail official) has deposed about no separate register being maintained in jail regarding use / permission of prohibited articles by prisoners. He has also alluded to the crossexamination of PWs SI Bharat Lal and Sh. Subhash Batra to contend that both witnesses have given evasive reply to his query about entry being made in register kept at Rohini Jail and about presence of other jail staff at the time of seizure of forged application Ex PW 1/A. Finally, Ld. LAC has adverted to crossexamination of handwriting expert Sh. Anurag Sharma (PW06) to submit that the witness has not examined the age of document (Ex PW 1/A) and for contending that his report is not conclusive evidence.
11. Having heard their rival submissions, it is necessary to refer to the evidence led on record by prosecution for adjudicating upon the guilt or otherwise of FIR No. 352/12 , PS Saket Stave Vs. Virender 5 of 15 accused Virender S/o Sh. Rajender.
12. Complainant Sh. Anuj Aggarwal, Ld. MM has entered the witnessbox as PW01 and deposed to have received letter Mark 'A' from Superintendent, District Jail, Rohini with request to review order upon application Mark 'B', purportedly allowed by court for providing sports shoes, leather belt, wrist watch with chain, carry bag and pen diary to inmate Virender in FIR No. 514/07, PS Mehrauli. He further deposed to have directed SHO PS Saket to register FIR and referred to copy of his order as Mark 'C'. Forged application (permission) exhibited as Ex PW 1/A was put to complainant and he has denied having endorsed or signed the document at point 'A' and 'B' besides claiming that no such application was ever allowed by him and that the stamp at point 'C' was not affixed by court. He was however not subjected to crossexamination by Ld. LAC Sh. Tej Narain despite opportunity.
13. Sh. Subhash Batra, Deputy Superintendent, District Jail Rohini, Delhi has been examined as PW02. He has deposed about accused Virender having presented to him original application for use of prohibited articles such as sports shoes, leather belt, wrist watch, etc. on 22.11.2012. The application bore signature and stamp of Ld. MM Sh. Anuj Aggarwal, Saket Court Complex, New Delhi and finding it suspicious, he sought confirmation from court, upon which it was revealed that no such permission was signed or granted to accused. He conveyed the FIR No. 352/12 , PS Saket Stave Vs. Virender 6 of 15 information to his senior officers who in turn shared the information with court and the case was got registered. PW02 further deposed to have given his statement and handed over the forged application (permission) to IO which was seized vide seizure memo Ex PW 2/A.
14. The next important witness for prosecution is Sh. Anurag Sharma, Asst. Director (Documents), FSL, Rohini, Delhi. He has deposed to have received ten sheets in open condition in FSL Laboratory on 21.12.2012 which consisted disputed writing marked Q1 to Q3 in document Ex PW 1/A and specimen writings and signatures of Virender marked S1 to S9 upon documents exhibited as Ex PW 5/A1 to Ex PW 5/A9. He has deposed to have examined all the documents scientifically and thoroughly by using various scientific instruments for reaching opinion that the person who wrote red enclosed writings and signatures stamped and marked S1 to S3 also wrote the red enclosed writings and signature similarly stamped and marked Q1.
15. Other formal witnesses examined by prosecution are police witnesses Ct Ajeet Kumar (PW03), Ct. Murma (PW04) and SI Bharat Lal (PW05). SI Bharat Lal (IO) has deposed about investigation being marked to him on 23.11.2012 and production warrant of accused being obtained on 26.11.2012. Accused was interrogated with court's permission and arrested vide arrest memo Ex PW 3/A on 27.11.2012. One day police custody of accused was obtained from court on FIR No. 352/12 , PS Saket Stave Vs. Virender 7 of 15 27.11.2012 and upon his disclosure, accused was taken to Rohini Jail alongwith Ct. Ajeet where Sh. Subhash Batra met them and handed over the forged application to IO. Statement of Sh. Subhash Batra was recorded and the forged application was seized vide seizure memo Ex PW 2/A. SI Bharat Lal has further deposed to have moved an application for specimen handwriting and signature of accused on 29.11.2012 and referred to the handwritings and signatures of accused obtained by him as Ex PW 5/A1 to Ex PW 5/A9. Forged application (permission) Ex PW 1/A and specimen writing and signature were sent to FSL and after conclusion of investigation, he prepared chargesheet which was filed in court. He has also alluded to the supplementary chargesheet alongwith result received from FSL.
16. Testimony of SI Bharat Lal stands corroborated by deposition of PW Ct Ajeet Kumar who has deposed of having joined investigation of the case alongwith SI Bharat Lal on 27.11.2012 and proved arrest memo of accused as Ex PW 3/A and his disclosure statements as Ex PW 3/B and Ex PW 3/C. Ct. Murma (PW04) has deposed to have taken the exhibits of the case to CFSL, Rohini on 21.12.2012 vide RC marked as Mark 'A' and to have obtained acknowledgment Ex PW 4/A, after depositing the exhibits at FSL, which he handed over to MHC(R).
17. So far as plea raised by Ld. LAC about false implication of accused Virender by police under some conspiracy hatched with jail officials is concerned, no contradiction whatsoever has been elicited in responses of PWs Sh. Subhash Batra FIR No. 352/12 , PS Saket Stave Vs. Virender 8 of 15 and SI Bharat Lal during their crossexamination. There is no rule that testimony of police officials is not to be treated as credible. Indubitably, if the evidence of official witness is found to be realistic and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because evidence happens to be given by official witnesses.
18. Hon'ble Supreme Court of India in case titled Tahir vs. State AIR 1996 SC 3079 has held : "In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case."
FIR No. 352/12 , PS Saket Stave Vs. Virender 9 of 15
19. Therefore, mere allegation of some conspiracy being hatched by police and jail officials does not impress the court or impels to draw any adverse inference against the veracity of their testimonies.
20. As regards the next contention raised by Ld. LAC about PW SI Bharat Lal (IO) having not known, met or joined Sh. D.K Aggarwal in the course of investigation, such inaction of IO will not adversely effect the outcome of present case. It is relevant to note that letter dated 23.11.2012 upon the letter head of "Office of The Superintendent : District Jail, Rohini" was received in the Court by complainant Sh. Anuj Aggarwal, Ld. MM and has been referred by him in his deposition as Mark 'A'. Sh. Anuj Aggarwal being the complainant, his testimony has remained unchallenged despite opportunity. It is also relevant to record that Sh. Subhash Batra (PW02) during his crossexamination was shown letter dated 23.11.2012 (Mark 'A') and replied the query by claiming it to be sent by Sh. D. K. Aggarwal, the then Superintendent, District Jail Rohini, Delhi.
21. At this stage, it is relevant to refer to the finding of Hon'ble Supreme Court of India in case titled Alagarsamy vs. State (2011) 1 SCC (Cri) 560 : "The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is FIR No. 352/12 , PS Saket Stave Vs. Virender 10 of 15 convinced that the testimony of a witness to the occurrence is true, then the court is free to act on it, albeit the Investigating Officer's suspicious role in the case."
22. Moving on to the last limb of arguments raised by Ld. LAC in respect of expert's report. It is well settled that expert's opinion must always be received with great caution and there is a profusion of precedential authority which holds that it is unsafe to base conviction solely on expert opinion without substantial corroboration. Nonetheless, it may be relied upon when supported by other items of internal and external evidence as held in Ram Chandra v. State of U.P. (AIR 1957 SC 381).
23. Similar rulings have given by Hon'ble Apex Court in cases titled Ishwari Prasad Mishra v. Md. Isa (AIR 1963 SC 1728) and Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) for holding that expert's evidence of handwriting can never be conclusive because it is, after all, opinion evidence which can rarely, if ever, take place of substantive evidence, and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
24. Evidentiary value of expert's opinion in regard to handwriting was again considered in Fakhruddin v. State of M.P. (AIR 1967 SC 1326) when the above said rulings was qualified with a note of caution by pointing that it would be FIR No. 352/12 , PS Saket Stave Vs. Virender 11 of 15 risky to found conviction solely on the evidence of a handwriting expert and before acting on such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.
25. However, observations of Hon'ble Court for seeking corroboration, direct or circumstantial before adjudicating upon the facts of case on the basis of expert's report is not to be confused with any 'rule of law' or 'rule of prudence'.
26. Hon'ble Supreme Court of India in case titled Murari Lal v. State of Madhya Pradesh (1980 (1) SCC 704) in no uncertain terms has observed : "That the hazard in acceptance of opinion of an expert is not because it is unreliable evidence, but because human judgment is falliable. Needless to record that the signs of identification of handwriting have attained more or less a state of perfection and the risk of an incorrect opinion is practically nonexistent." Hon'ble Apex Court went further to record : Doubting the opinion of a handwriting expert ought to be a far cry and insistence upon further corroboration as an invariable rule does not seem to be a justifiable conclusion. (emphasis supplied).
27. Having discussed the whole gamut of case laws on the point, Hon'ble Supreme Court of India in case tilted Alamgir v. State (NCT of Delhi) has concurred with the observation in Murarli Lal's case (Supra) to hold : FIR No. 352/12 , PS Saket Stave Vs. Virender 12 of 15 "There is no rule of law, nor any rule of prudence which has crystallized into a rule of law that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. We feel it expedient to record our concurrence therewith, though, however, we hasten to add that since human judgment cannot be said to be totally infalliable, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination, the acceptability or creditworthy of the same depends."
28. Therefore, upon scrutiny of evidence led on record by prosecution, in the absence of any real (positive) evidence in the nature of recovery of stamp / seal of Court used for preparing forged application (permission), mere mentioning of name of some UTP Shukla in the disclosure statement of accused referred as Ex. PW 3/B does not constitute offence of criminal conspiracy punishable U/s 120B IPC.
29. On similar footing, in the absence of any evidence of use of forged application (permission) or document being part of judicial record, offences U/s 471 / 474 IPC is also not made out against accused Virender.
30. As regards allegation of forgery for purpose of cheating, section 468 IPC is the penal provision which is reproduced in verbatim as under:
FIR No. 352/12 , PS Saket Stave Vs. Virender 13 of 15 "Whosoever 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 sever years, and shall also be liable to fine".
31. Hon'ble Supreme Court of India in case titled Md. Ibrahim Vs. State of Bihar & Anr 2009 (13) SCR 1254 has held: "A person is said to have made a false document, if (i) He made or executed a documents claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses".
32. In the present case, application (permission) Ex. PW 1/A has been proved as forged document as complainant Sh. Anuj Aggrawal, Ld. MM (PW01) has deposed of having not allowed any such application and has disputed the endorsement and signature upon the document. The forged application (permission) was handed over by Sh. Subhash Batra (PW02) to SI Bharat Lal (PW03) which was seized vide seizure memo Ex. PW 2/A duly proved by both witnesses. Sh. Anurag Sharma, (PW06) has deposed to have examined the questioned writing marked Q1 to Q3 with specimen handwritings and signatures of accused, scientifically with the help of scientific instruments, for opining that the FIR No. 352/12 , PS Saket Stave Vs. Virender 14 of 15 person who wrote red enclosed signature stamped and marked S1 to S3 was the author of the red enclosed writings and signature similarly stamped and marked Q1. He has been crossexamined at length by ld. LAC and has denied the suggestion of questioned writing Q1 and specimen writing S1 to S3 having different alignment, spacing and pen pressure. He has also denied any difference in the angular and vertical alignment characteristics of handwriting and claimed to have examined each and every characteristics of writings including general and individual writing characteristics.
33. Therefore, on the basis of expert's report proved as Ex. PW 6/B read in conjunction with testimonies of witnesses examined on record, commission of forgery of document (application Ex. PW 1/A) for cheating is proved beyond reasonable doubt against accused Virender. Accused Virender S/o Sh. Rajender is therefore convicted for offence U/s 468 IPC.
34. Matter be now listed for submissions and order on question of sentence on 04.09.2014 at 2:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 30th August, 2014 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No. 352/12 , PS Saket Stave Vs. Virender 15 of 15