Delhi District Court
State vs . Vivek on 29 July, 2016
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX, NEW
DELHI
STATE Vs. VIVEK
FIR NO. 714/08
U/s : 420/467/468 IPC
P.S. : Malviya Nagar
Date of Institution : 21.12.2009
Date on which case reserved for Judgment : 14.07.2016
Date of judgment : 28.07.2016
JUDGMENT
1.FIR No. of the case : 714/08
2.Year of the Commission : 2007
of the offence
3.Name of the accused : Vivek S/o Sh. Hawa Singh R/o Village
: Kankra Barrod, Post Office Barrod Tehsil
: Behror, District, Alwar, Rajasthan.
4.Name of the complainant : Sh. P. Dass, DCP/4th battalion DAP, Delhi.
5.Offence complained of : 420/467/468 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 714/08 State Vs. Vivek 1/8
BRIEF FACTS:
1. In brief the case of the prosecution is that in the year 2007 accused had applied for the post of Constable in Delhi under OBC category and OBC and Domicile Certificate submitted by accused in this connection were found false and forged because during enquiry about his character and antecedents it was found that accused was a permanent resident of District Mahendergarh, Haryana where as the aforesaid certificates were obtained from Rajasthan and accused dishonestly attempted to cheat the police authorities by inducing them to provide a job on the basis of the aforesaid documents and thereby committed offence punishable u/s 420/511 IPC. It is the further case of the prosecution that in the aforesaid year accused forged the aforesaid documents intending the same to be used for the purpose of cheating and thereby committed offence punishable u/s 468 IPC and also in the aforesaid year accused dishonestly and fraudulently used as genuine the aforesaid certificates knowing and having reason to believe the same to be forged document and thereby committed offences punishable u/s 471 IPC.
2. On the basis of the said facts and on the complaint of the complainant, an FIR bearing number 714/08 under section 420/467/468 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, chargesheet under section 173 Cr.P.C was filed on 21.12.2009.
4. On the basis of the allegations in the chargesheet and documents annexed thereto a charge for the offences punishable under section 420/511/468/471 IPC was framed against the accused Vivek to which the accused pleaded not guilty and claimed trial on 19.09.2011.
FIR No. 714/08 State Vs. Vivek 2/8
THE TRIAL PROCEEDINGS :
5. In order to prove its case, the prosecution has examined nine witnesses.
6. PW1 was Retired Inspector Satbir Singh. He marked the matriculation certificate and OBC certificate as Mark A and Mark B respectively. This witness was cross examined by the Ld. counsel for the accused and in cross examination his statement was exhibited as Ex. D1.
7. PW2 was Retired DCP P. Dass. He marked his report as Mark C. This witness was cross examined by the Ld. counsel for the accused.
8. PW3 was HC Manohar Lal through whom the FIR was exhibited as Ex. PW3/A. This witness was cross examined by the Ld. counsel for the accused.
9. PW4 was Sh. Om Prakash, Retired Naib Tehsildar. He exhibited the certified copy of documents pertaining to accused Vivek as Ex. PW4/A1 to PW4/A
14. This witness was cross examined by Ld. counsel for the accused.
10. PW5 was Uma Dutt, Record Clerk, DM Office, Alwar, Rajasthan. He exhibited the original verification report, Character and previous conduct of accused as Ex. PW5/A. He was duly cross examined by Ld. counsel for the accused.
11. PW6 was Ct. Vinod Kumar. He exhibited the arrest memo, personal search memo and disclosure statement as Ex. PW6/A, Ex. PW6/B and PW6/C respectively. This witness was not cross examined by the Ld. counsel for the accused despite opportunity given.
12. PW7 was ASI Surender Rawat. He exhibited the attestation letter, attested copy of OBC Caste Certificate, Domicile certificate and certificate issued by Sarpanch, Gram Panhayat, Badod, Alwar, Rajasthan as Ex. PW7/A, PW7/B, PW7/C and PW7/D respectively. This witness was cross examined by the Ld. counsel for the accused.
FIR No. 714/08 State Vs. Vivek 3/8
13. PW8 was ASI Banwari Lal. This witness was cross examined by the Ld. counsel for the accused.
14. PW9 was SI Bijender Singh. He exhibited the rukka as Ex. PW9/A. This witness was cross examined by the Ld. counsel for the accused.
15. Prosecution evidence was closed on 11.02.2016. After closing of prosecution evidence, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 17.03.2016. He chose to lead defence evidence. Thereafter matter was listed for DE. However vide his statement recorded on 24.05.2016 the accused stated that he did not wish to lead to DE and closed DE. Thereafter, matter was listed for final arguments.
FINAL ARGUMENTS:
16. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for accused. I have heard the arguments and perused the record.
REASONS FOR DECISION:
17. The settled principle of criminal jurisdiction is that the prosecution has to prove the guilt of the accused beyond reasonable doubt and the conviction of an accused can not be based on conjectures or surmises.
18. The prosecution's case is that the accused was a permanent resident of village Sirohi Bahali PS Nangal, District Mahendergarh, Haryana but he furnished false information and got prepared forged OBC certificate of Jat Caste at address of his aunt i.e. village Kankra Barrod, District Alwar, Rajasthan and used the same as genuine for getting benefit of OBC (Jat) category as Jat Caste of Rajasthan State in included in OBC list and thus attempted to cheat the police authorities.
19. PW1 Retired Inspector Satbir Singh Malik is apparently the person who firstly noticed the alleged discrepancy in the documents deposing in evidence that at the time of scrutiny of documents of the candidate i.e. accused Vivek it was revealed FIR No. 714/08 State Vs. Vivek 4/8 that the address mentioned on the matriculation certificate and OBC certificate (caste certificate) produced by the accused were found to be different and he immediately brought this fact to the notice of concerned ACP in charge. Mark A is the matriculation certificate of the accused. PW1 was asked the specific question in cross examination regarding Mark A not bearing address of the candidate and PW1 replied that the address mentioned in Mark B i.e. caste certificate were found to be different on the basis of which a doubt had come in his mind and he went on to admit that Mark A (matriculation certificate) did not bear the residential address of the accused. In fact, the prosecution has not adduced in evidence any government issued identification proof of the accused showing the alleged address of Haryana. PW1 also testified that the school of the candidate as mentioned in Mark A was situated in Mahendergarh District of Haryana whereas the OBC certificate i.e. Mark B was procured from Rajasthan and the approximate distance between the two places was 50 km. Ld. counsel for the accused argued that the accused used to travel daily from his residence to Haryana for studies and the distance of 50 km was a short one and it was not uncommon for persons to travel to and fro neighboring States on a daily basis for studies.
20. PW2 Retired DCP P. Dass deposed in his examination in chief that an inquiry was conducted through DM Alwar which revealed that the accused had obtained OBC certificate and that he had forwarded a report to DCP, South District in this regard photocopy of which was marked as Mark C. The original of this document was never produced in the court however even if this is ignored, the fact remains that PW2 admittedly did not make any personal enquiry in the matter therefore his testimony regarding it being revealed in enquiry that accused was a resident of Rohtak is of no value in the eyes of the law. The person who conducted the enquiry qua the alleged forged documents i.e. the then ADM, Alwar, Rajasthan FIR No. 714/08 State Vs. Vivek 5/8 was not even cited as a witness by the prosecution. Ld. APP for the State relied on section 35 Evidence Act arguing that in view of the same, the report Ex. PW5/A which was produced by PW5 Uma Datt Sharma, Record Clerk Grade II, DM Office could be read in evidence. Section 35 Evidence Act reads as follows 'An entry in any public or other official book, register or (record or an electronic record), stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or (record or an electronic record) is kept, is itself a relevant fact'.
21. No doubt the report Ex. PW5/A is relevant but the author thereof was required to be examined by the the prosecution to elucidate clearly regarding the basis of the said report as to what was the material on which the report had been based and also depose about the details of the enquiry conducted prior to furnishing the report. The IO for reasons best known to him has not cited the then ADM who carried out the relevant enquiry as a witness in the present case which is fatal to the prosecution's case. In fact, the entire case of the prosecution depended on the testimony of the then ADM who is the person who carried out the enquiry and by not examining him as a witness, the prosecution took away the valuable right of the accused to question him regarding the veracity of his report which is not permissible in law. This is especially so since, as per the testimony of PW5 Uma Dutt Sharma, the then ADM Sh. Om Prakash Bunkar was still is employment and posted as Secretary at Nagarvikas Ganganagar, Rajasthan. As the witness was very much traceable, the prosecution could have summoned him for evidence but it was not so done which is fatal to the prosecution's case.
22. PW8 ASI Banwari Lal is the witness who went to Behrod Tehsil, Alwar for collecting the documents i.e. certified photocopy of OBC certificate i.e. Ex.
FIR No. 714/08 State Vs. Vivek 6/8 PW4/A4. This witness quite candidly testified that he did not inspect any records with respect to accused personally himself and he only handed over the document aforementioned to the Investigating Officer. This witness as per his own evidence only obtained the certified copy of the OBC certificate of the accused and recorded the statement of the Naib Tehsildar i.e. Om Prakash and apparently he did not carry out any independent investigation regarding the genuineness of the document.
23. Now, coming to the testimony of PW9 SI Bijender Singh his cross examination exposes the shoddy investigation carried out by him. PW9 SI Bijender Singh deposed that he personally did not visit the village Kankra Barod, Tehsil Beror, District Alwar for investigation. He then testified that he had recorded the statement of the officer who conducted the police verification, immediately correcting himself thereafter to state that he did not record the statement of such police official. The application form of accused for obtaining caste certificate Ex. PW4/A1 contains the certification given by one Smt. Nirmala Devi, Sarpanch, Sh. Dharampal and Sh. Sunil Kumar to the effect that the accused was resident of Kankra Barod. The IO/PW9 deposed that he did not involve the Sarpanch of Village Kankra Barod. He admitted further the suggestion that he did not record the statements of the persons namely Dharampal, Sunil Kumar and Nirmala Devi who had allegedly verified the caste certificate. As these persons had given the certification regarding the accused being a resident of the village Kankra Barod, it was incumbent upon the IO to examine these persons and ascertain the true facts. Even the Tehsildar, District Alwar who issued the caste certificate has not been examined. Surprisingly, the IO also admittedly did not visit Sirohi Bahali or Nangal Chaudhary, District Mahendergarh for investigation.
24. The defence of the accused is that he is a permanent resident of Kankra Barod, District Alwar, Rajasthan but he completed his education from Haryana. Ld. FIR No. 714/08 State Vs. Vivek 7/8 APP for the State argued that the accused had not led any evidence in defence to establish that he was a permanent resident of Kankra Barod, Alwar Rajasthan and so his defence could not be believed. This contention must be rejected since it is the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt, and it can not look for loopholes in the defence of the accused without first discharging its onus. No investigation on the aspect of purported forgery of the caste certificate by the accused has been done by Investigating Officer; no documents have been sent for forensic examination for ascertaining whether there is any forgery.
25. The prosecution has miserably failed to bring on record any cogent evidence to prove that the accused is guilty of the offences of attempting to cheat and forgery. There is a distinct lack of evidence against the accused in the present case and the benefit of the doubt must necessarily be extended to the accused. Thus, accused Vivek is acquitted for the offences U/s 420/511 IPC and section 468/471 IPC.
26. Put up for furnishing of bail bonds u/s 437A Cr.P.C. on 29.07.2016.
Announced in the Court (ANJANI MAHAJAN) on 28.07.2016 MM02(SD)/28.07.2016
Certified that this judgment contains 8 pages and each page bears my signatures.
(ANJANI MAHAJAN)
MM02(SD)/ 28.07.2016
FIR No. 714/08 State Vs. Vivek 8/8