Delhi District Court
State vs . Pankaj Singh And Ors. on 5 April, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST
SAKET COURTS, NEW DELHI
FIR No. 164/1995
P.S. Defence Colony
U/s 419/468/471/34 IPC
State Vs. Pankaj Singh and ors.
JUDGMENT :
a. Sl. No. of the case : 433/2
b. Date of Institution : 04.09.1996
c. Date of Commission of Offence : 18.03.1995
d. Name of the complainant : Sh. M.L. Rakheja
S/o Radhu Ram
e. Name of the accused and his : (1.)Pankaj Singh
parentage and address S/o Jai Karan Singh
R/o H.no.22, SectorI, Sadiq
Nagar, New Delhi
(2.) Amit Saini
S/o Tek Chand Saini
R/o117, Masjid Moth,
New Delhi.
f. Offence complained of : U/s 419/468/471/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 05.04.2013
i. Final Order : Acquitted
FIR NO. 164/1995 PAGE 1 OF PAGE 18
PS DEFENCE COLONY
j. Date of such order : 05.04.2013
1. The accused in this case was sent up for trial for the commission of offence U/s 419/468/471/34 IPC.
2. The facts according to the prosecution are that on 18.03.1995, the accused Amit Saini was to appear for his Board examination of 10th class held by CBSE at Government Boys Senior Secondary School, ABlock, Defence Colony, New Delhi. He was to take the paper of Maths from 9.30 a.m. To 12.00 p.m. for CBSE Examination, 1995. One Pankaj Singh was found to be impersonating the accused Amit Saini and he disclosed the reason for impersonating. According to Pankaj Singh, the accused Amit Saini had promised to pay some money in consideration of impersonating and writing the Maths paper for him. The impersonator namely Pankaj Singh was handed over to the police. During the investigation statement of witnesses were recorded. Accused persons were arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused persons, charge was framed against the accused persons on 09.10.1997, under section 419/468/471 IPC to which they both pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined ten FIR NO. 164/1995 PAGE 2 OF PAGE 18 PS DEFENCE COLONY witnesses namely R.D. Sanyal as PW1, Mohini as PW2, Rita Sharma as PW3, B.M. Sharma as PW4, M.L. Rekheja as PW5, R.G. Gupta as PW6, B.L. Singhal as PW7, Retd. SI Mohan Lal as PW8, W/HC Neeru as PW9, HC Om Prakash as PW10.
5. PW1 R.D. Sanyal has testified that in the year 1995, the Board Examination of CBSE relating to class X were being conducted at Government Boys Senior Secondary School, Defence Colony, A Block. One CBSE team came for checking during the examination in the course of that examination in March. PW1 further testified that it was detected in the course of that checking by that team that some other person was sitting in place of some other student. That boy was taken to the Superintendent room for questioning and they were in the examination hall. PW1 further testified that that boy was the same whose photo was affixed in the examination form having year, roll no. etc. PW1 further testified that since many years have left, he would not be able to identify that boy as he had also eye sight problem. PW1 further testified that he did not identify that boy as he could not recollect his identity as he was not the student of his school. PW1 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW1 has testified that he did not make any statement to the police. He has denied the suggestion to this effect that he had told the name of the boy to the police as Pankaj Saini who was giving papers in place of Amit Saini.
FIR NO. 164/1995 PAGE 3 OF PAGE 18 PS DEFENCE COLONY 6. PW2 Mohini has testified that in this case he had given certain
documents to the police officials which were taken into possession vide seizure memo Ex. PW2/A. The photocopy of the attendance sheet S.no.266137 bearing roll no. 6376047 which is Mark A1, the photocopy of the admission card for regular candidates G.B.S.S School, Sadiq Nagar which is Mark A2 and the answer sheet bearing S.no. GR69191, roll no.6376047 which is Ex. PW2/B. PW2 further testified that he had not brought the original admission card and attendance sheet of the candidate having roll no. 6376047 as the record had been destroyed in their office.
In his cross examination, PW2 has testified that the team which visited the centre, had collected the documents which were handed over to him by them.
7. PW3 Rita Sharma has testified that on 18.03.1995, during CBSE examination, he was posted as Education Officer Zone at 18, Defence Colony. He was on checking duty along with Mr. R.G. Gupta, Principal B.L. Singhal and other staff. They reached ABlock, Defence Colony, GBSS School and checked the examination hall. PW3 further testified that she did not remember the room number. PW3 further testified that during checking, they came to know that one boy was found in impersonation. PW3 further testified that she did not remember the name of the said boy and due to lapse of time, she could not identify that person. PW3 further testified that she had received all the documents from the boy and handed over to M. Rakheja, Vice Principal FIR NO. 164/1995 PAGE 4 OF PAGE 18 PS DEFENCE COLONY of the school. PW3 further testified that due to lapse of time, she could not say and tell the name of paper. PW3 further testified that police also came at the spot.
PW3 was cross examined by Ld. APP as she was resiling from her previous statement. In her cross examination, PW3 has testified that she along with staff and Principal reached room no.17. PW3 further testified that she could not say that the accused present in the court was the same boy who was involved in cheating and impersonation in the examination. PW3 further testified that he also could not say that the accused present in the court was appearing in the examination in place of his brother. She further testified that the photo of the boy was affixed on the Icard. PW3 has denied the suggestion to this effect that the accused present in the court was the same who was giving the exam on behalf of his brother.
PW3 was cross examined by Ld. Defence Counsel also. In his cross examination, PW3 has testified that police never came to her for interrogation or never recorded her statement.
8. PW4 B.M. Sharma has testified that on 18.03.1995, while he was posted at GBSS School, Sadiq Nagar as Principal, he had received an information that one boy was giving the exam by impersonation on behalf of other student. On this, he had sent to class teacher to verify the boy who was giving the exam on behalf of other boy. PW3 further testified that the teacher went there and informed him that one student namely Amit Singh was giving the examination on behalf of other FIR NO. 164/1995 PAGE 5 OF PAGE 18 PS DEFENCE COLONY student whose name he did not remember. PW4 further testified that he had not seen anything on his own eyes and he was not interrogated by the IO regarding this case.
PW4 was also cross examined by Ld. APP as he was resiling from his previous statement. In his cross examination, PW4 has testified that his statement u/s 161 Cr.P.C was recorded by the IO. He further testified that he had stated to the IO that one boy namely Amit Saini was student of 10th B. he further testified that on the admission card, Amit Saini's photo was affixed.
9. PW5 M.L. Rekheja has testified that on 18.03.1995, he was posted as Vice Principal, Government Boys Senior Secondary School, ABlock, Defence Colony where CBSE exam was going on. It was Math's paper of class 10th. A CBSE team reached the center and the same was led by one Ms. Rita Sharma. PW5 further testified that they deducted one candidate who was impersonating Amit. PW5 further testified that Pankaj was writing answer sheet for Amit. PW5 further testified that Pankaj was interrogated and he confessed his guilty during the course of investigation. Documents were seized and were given to him. Answer sheet is Ex. PW5/A but he could not identify the answer sheet Ex. PW5/A seized from Pankaj. The Attendance sheet is Mark A. PW5 further testified that he had informed the police vide his complaint Ex. PW5/B. PW5 further testified that he had shown the place of occurrence to the police.
PW5 was also cross examined by Ld. APP as he was resiling from his FIR NO. 164/1995 PAGE 6 OF PAGE 18 PS DEFENCE COLONY previous statement. In his cross examination, PW5 has testified that I could not identify Pankaj as ten years had passed.
10. PW6 R.G. Gupta has testified that on 18.03.1995, he was posted as Principal, Government School, Ali Ganj and on that day, he was party to the raiding team in CBSE Exam. Their team was headed by Education Officer Mrs. Rita Sharma. PW6 further testified that when they inspected ABlock, Defence Colony school, it was revealed that one boy namely Pankaj was impersonating some Amit. PW6 further testified that it was the paper of Math. PW6 further testified that the said Pankaj was interrogated and at last he confessed that he was impersonating one Amit in the said paper. PW6 further testified that the Answer Sheet and Admit Card were seized and handed over to Vice Principal Mr. Rekheja vide seizure memo Ex. PW2/A, Attendance Sheet is Mark A1 and Admit Card is Mark A2. PW6 further testified that he could not identify the answer sheet which was seized from Pankaj.
PW6 was also cross examined by Ld. APP as he was resiling from his previous statement. In his cross examination, PW6 has testified that he could not identify Ex. PW5/A and Ex. PW2/A since he did not remember any distinct mark on answer sheet except a common signature seal of Mr. Rekheja. PW6 further testified that he could not identify the accused Pankaj.
11. PW7 B.L. Singhal has testified that it was the last day of CBSE Exam FIR NO. 164/1995 PAGE 7 OF PAGE 18 PS DEFENCE COLONY and in the year 1995, he was a party to the flying squared headed by Mrs. Rita Sharma, E.O and during the course of raid, they had apprehended one boy at ABlock, Defence Colony and answer sheet, attendance sheet and admission card was seized from his possession and the same were handed over to Superintendent of School. PW7 further testified that he could not identify the answer sheet. PW7 was also cross examined by Ld. APP as he was resiling from his previous statement. In his cross exa FIR mination, PW7 has denied the suggestion to this effect that Ex. PW5/A and Ex. PW2/B are the same answer sheet which were seized from the accused Pankaj at the time of raid and states that he was kept away by the officer since he was a Principal from aided school. PW7 further testified that he could not identify the Pankaj who was impersonating.
Ld. counsel for accused did not prefer to cross examine PW7.
12. PW8 Retd. SI Mohan Lal has testified that on 18.03.1995, on receipt of DD no.9, he along with Ct. Paras Ram had gone to ABlock, G.B.S.S. School, Defence Colony, where M.L. Rakheja handed over his complaint Ex. PW5/B along with certain documents and accused Pankaj present in the court. PW8 further testified that he made endorsement on complaint vide Ex. PW8/B and got registered the FIR through Ct. Paras Ram. PW8 further testified that he had arrested the accused. He had recorded the disclosure statement of accused vide memo Ex. PW8/B. He had seized the documents from CBSE Office, Preet Vihar vide memo Ex. PW2/A. PW8 further testified that he FIR NO. 164/1995 PAGE 8 OF PAGE 18 PS DEFENCE COLONY had recorded the statements of witnesses and arrested the accused Pankaj and Amit present in the court vide memo Ex. PW8/C and 8/D. PW8 further testified that he had taken sample hand writing of the accused Pankaj but the same are not on record. PW8 had also identified the papers seized from Preet Vihar, CBSE vide Ex. PW5/A, 2/B and Mark A and Mark B. In his cross examination, PW8 has denied the suggestion to this effect that he had not placed the FSL report on the file since the report was in negative.
13. PW9 W/HC Neeru has testified that on 18.03.1995, on receipt of rukka through Ct. Parash Ram, she recorded the present case FIR which is Ex. PW9/A. She also put her endorsement on rukka vide Ex. PW9/B.
14. PW10 HC Om Prakash has testified that on 18.03.1995, on receipt of DD no. 9A, he along with SI Mohan Lal Meena and Ct. Paras Ram reached GBSS School, ABlock, Defence Colony where they met with Vice Principal of the school namely M.L. Rakhija, who produced one written application to the IO and produced one person namely Pankaj Saini, present in the court and stated that he was appearing on behalf of other candidate in the exam. On this, SI Mohan Lal prepared rukka and got lodged the FIR through Ct. Paras Ram. PW10 further testified that IO prepared the site plan at the instance of complainant.
PW10 further testified that IO recorded the statements of other
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PS DEFENCE COLONY
witnesses of school. They brought the accused Pankaj to the police station. IO had arrested the accused Pankaj and conducted his personal search vide memo Ex. PW8/D. PW10 further testified that on 19.03.1995, other accused namely Amit present in the court was produced in the police station before the IO. IO had arrested him and conducted his personal search vide memo Ex. PW8/C. PW10 further testified that accused Amit Saini got recovered his photographs from his house and the same was seized by the IO vide seizure memo Ex. PW10/A. PW10 further testified that both the accused persons made disclosure statements vide Ex. PW10/B and 8/B.
15. After closing of prosecution evidence, statements of both the accused persons were recorded U/s 281 of Code of Criminal Procedure Code, 1973 r/w 313 Cr.P.C. In their statements, accused persons have denied to have committed the offence and claimed to have been falsely implicated in this case. However, they did not lead any evidence in their defence.
16. I have heard the Ld. APP for the State and the Ld. Counsel for the accused persons and have also perused the record.
17. There are two accused in this case. One namely Pankaj Saini has been charged with commission of offence of cheating by impersonation under section 419 IPC for impersonating other accused namely Amit Saini who in his turn has been prosecuted for forgery FIR NO. 164/1995 PAGE 10 OF PAGE 18 PS DEFENCE COLONY in order to commit cheating punishable under section 468 IPC. The accused are real brothers.
18. To bring home the charge under section 419 IPC, the prosecution must establish that accused committed cheating by pretending or representing himself to be some other person or knowingly substituting or representing himself for another. On the other hand, in order to attract the provision of section 468 IPC, there must be evidence that the accused forged a document with intent to use the same for the purpose of cheating. In both the offences, element of cheating is common.
19. In the present case, accused Amit Saini suppressed his identity and induced the school authorities to allow him to take the exam in place of accused Amit Saini. This is the gist of the allegations in order to prove which the prosecution has examined 10 witnesses in a span of around 13 years after framing of charge against accused on 09.10.1997. Still, the prosecution evidence fails to prove either of the charges. With 10 witnesses, there is no substantive evidence to hold accused liable for commission of the offence. In fact, six of the witnesses came up as hostile to the prosecution. They have not supported the prosecution case on material points. Prosecutor has cross examined all of them. PW1 has not identified either of the accused in the court. He has attributed his failure to identify the accused to his weak eye sight as well as the change in the personalities FIR NO. 164/1995 PAGE 11 OF PAGE 18 PS DEFENCE COLONY of the accused as being grown up from the time of incident. But then, he has also denied to have made any statement to the police in regard to the offence. He has even denied to have told the name of the accused Pankaj to the police. However, as per prosecution, PW1 not only made a statement to the police, but he also stated name of accused Pankaj to the police. It is also not clear from the testimony of PW1 if he was posted in the examination centre or he constituted part of the raiding team. He has not deposed anything to clarify whether he himself witnesses the incident or someone else informed him about the same.
20. PW3 is again a hostile witness. She has merely deposed that he formed part of the checking team. Nothing further has come forth from this witness to support the prosecution case. She has categorically admitted in his evidence that due to lapse of time, she was not in a position to remember names of the accused or identify them. The prosecutor has put a number of suggestions to PW3 to elicit truth from her. But she has brushed aside almost all the material suggestions as being incorrect. She has denied that accused present in the court was the same person who was giving the exam on behalf of his brother.
21. PW4, who was Principal of the concerned school at the time of incident, has minced no words in deposing that he himself did not see anything relating to incident, but he was informed by someone. As such, his evidence is merely hearsay evidence and has no probative FIR NO. 164/1995 PAGE 12 OF PAGE 18 PS DEFENCE COLONY value. He too, is a hostile witness and has been cross examined by the prosecutor on several substantive points, but without any avail.
22. PW5 has also joined the list of hostile witnesses. He has, though, supported the prosecution case to the extent that one boy by the name of Pankaj was impersonating another boy named Amit and the former was writing exams for latter. Nonetheless, he could not identify the accused in the court despite the fact that he, as per his testimony, saw accused Pankaj at the time of incident. He has deposed that documents were seized by the police, but when shown to him, he failed to identify the documents. He admitted that he cannot identify the answer sheet Ex. PW5/A which was seized from accused Pankaj. PW5 has, however, admitted to have made complaint Ex. PW5/B to the police regarding the offence. Seen in the entirety, the evidence of PW5 does not inspire much confidence.
23. Next in the lineup of hostile witnesses comes PW6 who was also functioning as Principal. His evidence, just like that of PW4, is nothing more than a piece of hearsay evidence. He has admitted that the incident was revealed to him by someone. Obviously, he failed to identify the accused. He also did not recognize the documents seized by the police from the school.
24. The last hostile witness is PW7 who was part of the flying squad.
His testimony shows that he was not allowed to see the seized
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document as being Principal of an aided school. This fact has been admitted by him in his cross examination by prosecutor. He could not identify the accused in the court like other witnesses.
25. As for remaining witnesses, PW2 handed over copies of certain documents to the police for the purpose of investigation. She did not play any other role in the investigation. However, she has revealed a very material point in her evidence that the original admission card and roll number of accused Amit Saini had been destroyed. PW8 was the Investigating Officer of the case, whereas PW10 was part of the investigating team. Both have given some support to the prosecution case, but PW8 is very economical in revealing the details of investigation and he has not come out with much facts to give succor to falling prosecution case. He has not specified as to which documents he seized during investigation and from whom the same were seized. He has identified certain documents, but he himself has stated that those documents were seized by not him but Preet Vihar CBSE. On what basis he has identified those documents is not clear. He is silent about the date as to when the accused were arrested. PW10 has certainly come out without more details in his evidence that the PW8, Investigating Officer of the case, but again the same is not consistent with the evidence of other witnesses. Both PW8 and PW10 have stated that accused was handed over to them by M.L. Rakhija PW5, but latter has said nothing about this fact in his testimony. He has merely said that he had seen accused Pankaj on that day. There are other fatal FIR NO. 164/1995 PAGE 14 OF PAGE 18 PS DEFENCE COLONY infirmities in the case.
26. The prosecution is not even able to prove allegations of forgery for the purpose of cheating. Having regard to the definition of a false document under section 464 IPC, a document can be said to be forged only if it purports to be signed or sealed by a person, who, in fact, never signed or sealed it. However, the acts alleged and approved against the accused in the present case do not fall within the frame work of any of the ingredients necessary to constitute making of a false document as defined in section 464 of IPC which is the basic fctor for establishing an offence of forgery as defined in section 463 of IPC and made punishable under section 468 of IPC. In the instant case, there is no admissible evidence on record to prove that any act of forgery was committed by accused Amit Saini who has been charged with commission of offence under section 468 IPC. Indeed, it was accused Pankaj who had committed not only act of impersonation but had also written examination paper in place of accused Amit. However, the prosecution is not able to prove any offence of forgery on the part of either accused. The proof of falsity of a document can be established either with direct or with circumstantial evidence. The direct evidence may comprise the evidence of eye witnesses, or the opinion of experts, or of those acquainted with the handwriting. However, in the present case no such evidence has been brought on record. None of the witnesses produced for examination by the prosecution has stated that he or she saw the accused writing the FIR NO. 164/1995 PAGE 15 OF PAGE 18 PS DEFENCE COLONY answer sheet or making alteration in the admission card or any other related documents. None of them has deposed that accused signed or wrote any forged document in their presence.
27. There is also no evidence of handwriting expert on record. In fact the answer sheet which was seized during investigation was never sent for expert opinion. The prosecution did not obtain the handwriting of accused in order to compare the same with the handwriting in the answer sheet. PW8, Investigating Officer, has admitted in his evidence before the court that he took sample handwriting of accused Pankaj, but the same are not on record. In these circumstances, it is not possible to ascertain whether accused has written the answer sheet.
28. The remaining documents which are placed on record are mere photocopies and and thus have no probative value. The attendance sheet showing attendance of accused Amit Saini and his marks sheet have not been produced in original. Being mere photocopies, these documents prove nothing. As per testimony of PW2, the Investigating Officer, was handed over only photocopies of attendance sheet and admission card of the accused. In other words, the Investigating Officer never seized the original of these documents. PW2 has further deposed that original admission card and attendance sheet were destroyed by the her office. Thus it is evident that the said documents were never produced before the court. The prosecution did not make any effort to seize the original documents or to have the concerned officer to preserve the same.
FIR NO. 164/1995 PAGE 16 OF PAGE 18 PS DEFENCE COLONY
Photocopies of any document are secondary evidence and secondary evidence cannot be admitted without the non production of the original first being accounted for. A proper foundation is required to be laid to establish right to adduce secondary evidence. Reference can be had to P.K Gupta v. Varinder Sharma AIR 2002 P&H 342 and Vijender Singh vs. State of Delhi SC cases(Cri) 857.
29. In the present case, the prosecution has not bothered to lay any ground for producing the secondary evidence of the above mentioned documents. The testimony of PW2 to the effect that said documents were destroyed, in, itself cannot be considered as sufficient explanation for failure of the prosecution to bring on record the original documents. Section 65 of the Indian Evidence Act which provides the conditions for admission of secondary evidence is designed only to protect persons who, in spite of best efforts, are unable, from circumstances beyond their control to place before the court primary evidence as required by law. Here in this case, the record shows that prosecution has not made any effort, much less best ones, to secure the original documents for the examination of court. It was observed in Parekh Brothers vs Kartick Chandra Saha AIR 1968 Cal 532 that the court must not accept the loss of the document as a fact without taking into consideration the prerequisite conditions that the document existed, that the loss or destruction has in fact taken place and that the reasonable explanation of this has been given. In this case, no explanation whatever has been given by the prosecution. The failure of the prosecution to produce the FIR NO. 164/1995 PAGE 17 OF PAGE 18 PS DEFENCE COLONY original documents is result of sheer negligence of prosecution to obtain the documents from the concerned department or to ask the department to preserve the same.
30. In the end, it can be safely concluded that the prosecution has not been able to prove charge against either of the accused. Prosecution has produced a good quantity of witnesses but without any quality to bring home the charge. The evidence produced by the prosecution is by no means convincing . It has been observed by the Supreme Court in Maqsoodan Vs state of UP (AIR 1983 SC 126) that it is not the number of witnesses examined, nor the quantity of evidence adduced by the prosecution that counts. It is the quality that counts.
31. In the result, I find that Prosecution has failed to prove its case against the accused person beyond reasonable doubt and he is given the benefit of doubt and therefore accused Pankaj Singh and Amit Saini are acquitted for the offence punishable U/s. 419/468/471/34 IPC for which they both stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 05.04.2013 Metropolitan Magistrate
South East/New Delhi
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PS DEFENCE COLONY
FIR No. 164/1995
P.S. Defence Colony
U/s 419/468/471/34 IPC
05.04.2013
Present: Ld. APP for the State.
Both accused are on bail counsel.
Vide my separate judgment dictated and announced in the open court, both the accused persons are acquitted for the offence punishable U/s 419/468/471/34 IPC IPC for which they both stands charged.
Both the accused persons are readmitted to bail on furnishing fresh bail bonds in the sum of Rs. 15,000/each with one surety each in the like amount. Bail bonds furnished. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/05.04.2013
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PS DEFENCE COLONY