Delhi District Court
State vs . Himanshu Gupta on 10 March, 2014
IN THE COURT OF SH. PANKAJ ARORA, MM01, WEST DISTRICT, TIS
HAZARI COURT, DELHI
STATE Vs. HIMANSHU GUPTA
FIR No. 211/03
PS: Punjabi Bagh
U/S: 406/201 IPC.
ID No. 02401R1016702003
Date of commission of offence 29.03.2003
Date of institution of the case 01.08.2003
Name of the complainant M.C. Tyagi
Name of accused and address Himanshu Gupta, S/o Sudhir Gupta,
3283, Ranjit Nagar, New Delhi
Offence complained of or proved U/s 406/201 IPC.
Plea of the accused Plead not guilty
Final order Convicted
Date of judgment 10.03.2014
J U D G M E N T
1 The case of the prosecution in brief is that on 29.03.2003, being a private candidate for class 12th examination, the accused Himanshu Gupta was alloted roll no. 6224516 to appear at N.C. Jindal Public School where he was entrusted with an answer sheet to write the exam, which was the property of CBSE, and he was required to hand it State Vs. Himanshu Gupta Page No. 1 of 16 over to the invigilator which he failed to do and instead misappropriated the same and also destroyed the said answer sheet in order to eliminate the evidence. On the complaint of complainant Sh. M.C. Tyagi (The Principal of N.C. Jindal Public School), the present FIR has been registered. The accused was arrested. After the completion of investigation, charge sheet has been filed in this court. Cognizance of the offence was taken. The accused was summoned. Charge for commission of offence under Section 406/201 of IPC was framed, to which the accused did not plead guilty and claimed trial.
2 The prosecution got examined only 7 witnesses in support of its case, which are as follows: (1) Dr. M.S. Tyagi was examined as PW1. He deposed that on 29.03.2002, he was working as Principal of N.C. Jindal Public School, West Punjabi Bagh. He further deposed that on 29.03.2002, they were having examination of CBSE Class XII as their school was one of the centre for holding these examination. He further deposed that examination of Economics was being taken. He further deposed that they have deputed two invigilators namely Mrs. Renu Puri and Mrs. Sushma Sharma. He further deposed that one of the invigilators namely namely Mrs. Renu Puri came to him at about 12.30 p.m. and informed him that one of the candidates namely Himanshu Gupta after taking permission from her had gone for the toilet and had not returned back. He further deposed that they immediately called the chowkidar from the gate and all of them searched toilets as well as adjoining rooms situated at that block to look for that boy. He further deposed that they searched the table on which that candidate was sitting and they found that he had taken away the answer book with him and only the question paper, State Vs. Himanshu Gupta Page No. 2 of 16 pencil and eraser was lying there. He further deposed that he called the police and lodged the complaint with the police. The witness identified his complaint in written which is Ex. PW1/A. He further deposed that police visited the spot and conducted the inquiries. The police made interrogation from that boy he refused but when he personally inquire from that boy he admitted that he had taken away the answer book. He further deposed that he was then handed over to the police to make subsequent investigations. During his crossexamination, he stated that he had not given any instruction to his guards not to allow any student to leave the examination centre before 1.30 p.m.
2) Mrs. Renu Puri was examined as PW1. She deposed that on 29.03.2003, she was posted as TGT Home Science at N.C. Jindal Public School, West Punjabi Bagh. She further deposed that their school was made examination centre for CBSE Class XII examinations. She further deposed that on that date examination of Economics was being taken. She further deposed that she himself along with Mrs. Sushma Sharma appointed as invigilators at one of the rooms where this examination was being taken. She further deposed that at 12.15 p.m., one of the candidates namely Himanshu Gupta present in the court that day asked him the permission to go to the toilet. She further deposed that she allowed him. She further deposed that after five minutes when accused did not return back, she went towards the boys toilet asked the cleaner to look for the accused. She further deposed that he went inside and informed him that no boy is there inside the toilet. She further deposed that she immediately went to the seat of the boy and found only question paper,m pencil and eraser. She further deposed that answer State Vs. Himanshu Gupta Page No. 3 of 16 sheet was not there. She further deposed that she took these articles and went to the controlling room and informed Dr. M.S. Tyagi who was controlling the said centre and was also the principal of their school. She further deposed Dr. M.S. Tyagi then took her statement thereafter, he informed the police. She further deposed that police came at the spot and made inquiries from her also. She further deposed that her statement was recorded by the police who conducted the further investigations. The witness was cross examined but nothing material came out in her crossexamination.
3) Smt. Sushma Sharma, Assistant Teacher from N.C. Jindal Public School was examined as PW3. She deposed that on 29.03.2003, she was working as teacher at the above said school. She further deposed that the exams were going on. She further deposed that she was invigilator on that day and herself and Mrs. Renu Puri were on duty in room no. 39. She further deposed that the examination were of CBSE Class 12th was holding at out school and she was Assit. Superintendent at that time of examination. She further deposed that examination of Economics was going on. She further deposed that he could not identify the candidate because the candidate has asked to Mrs. Renu Puri for permission from her for the toilet. She further deposed that the name of the candidate was Himanshu Gupta. She further deposed that the candidate Himanshu Gupta asked for permission for toilet at about 12.00 noon. She further deposed that Himanshu Gupta did not come back till five minutes. She further deposed that Mrs. Renu Puri called the peon and sent him for searching the candidate in the toilet. She further deposed that they searched the table on which the candidate was sitting and they found that question paper, pencil and eraser etc. was lying there. She further deposed that the State Vs. Himanshu Gupta Page No. 4 of 16 candidate had taken away the answer book with him. She further deposed that the senior authority M.C. Tyagi was also called at the class room. She further deposed that the school authority called the police. She further deposed that police also came in the room and enquired with her. She further deposed that she could not tell whether police recorded her statement. The witness was crossexamined but nothing material came out in her crossexamination.
4) ASI Shabber was the duty officer who identified & registered FIR No. 211/03 which is Ex. PW4/A & endorsement on the rukka which is Ex. PW4/B. The witness was not crossexamined despite having given the opportunity.
5) HC Suraj Bhan was examined as PW5. He deposed that on 29.03.2003, he was posted at PS Punjabi Bagh and was on emergency duty from 8.00 a.m. to 8.00 p.m. He further deposed that he along with SI Kuldeep reached at N.C. Jindal public school during investigation. He further deposed that the DD NO. 8A was received by SI Kuldeep. He further deposed that the principal Tyagi met them there and gave his statement. He further deposed that principal Tyagi presented a written complaint to SI Kuldeep. Mr. Tyagi also produced the accused Himanshu Gupta. He further deposed that the present case was registered through SI Kuldeep. He further deposed that after the registration of the case, the accused was arrested vide arrest memo Ex. PW5/A and personal search memo which is Ex. PW5/B. He further deposed that the accused was arrested on 29.03.2003 again deposed after one two days when he came for another paper. He identified the disclosure memo for the accused Mark B. He further deposed that the question paper was taken into possession and he did not remember other State Vs. Himanshu Gupta Page No. 5 of 16 documents. He further deposed that the memo which was prepared at the time of taking possession of the documents is Ex. PW5/C. He further deposed that IO recorded his statement. The witness was crossexamined but nothing material came out in his cross examination.
6) SI Kuldeep Singh was examined as PW6. He deposed that on 29.03.2003, he was posted at PS Punjabi Bagh as a SI. He further deposed that on receipt of DD NO. 8A Ex. PW6/A, he reached on the post i.e. N.C. Jindal School, at Road No. 73 West Punjabi Bagh along with Ct. Suraj Bhan where Centre Superintendent M.C. Tyagi met him and handed over a complaint regarding misappropriation of answer sheet by accused Himnshu Gupta. He further deposed that he made endorsement on said complainant which is already ex. PW4/B and same was handed over to Ct. Suraj Bhan for registration of FIR. He further deposed that Ct. Suraj Bhan took same to the PS and got FIR registered and came back at the spot along with copy of FIR and original complaint and same was handed over to him. He further deposed that in between, he prepared site plan at the instance of complainant M.C. Tyagi which is Ex. PW6/B. He further deposed that he recorded statement of both invigilators namely Ms. Sushma and Renu Puri U/s 161 Cr.P.C. He further deposed that during inquiry, complainant told him that accused would come on 01.04.2003 for appearing in the paper of account at aforesaid school. He further deposed that on 01.04.2003, he went to the said school along with Ct. Suraj Bhan and complainant M.C. Tyagi and other staff members handed over accused Himanshu Gupta to him as he was appeared in the examination of account paper. He further deposed that complainant also handed over to him attendance sheet of accused and admit State Vs. Himanshu Gupta Page No. 6 of 16 card to him and same was taken by him vide seizure memo which is already Ex. PW5/C. He further deposed that after seeing of accused Himanshu Gupta which is already Mark A and admit card of accused Himanshu Gupta which is Mark B, The witness correctly identified the attendance sheet and admit card of accused Himanshu Gupta containing photographs of accused and particulars of the examination board and Roll NO. i.e. 6224516 which were seized by him. He further deposed that he arrested accused vide arrest memo Ex. PW5/A. He further deposed that personal search of accused was carried out vide memo which is Ex. PW5/B. He further deposed that during interrogation, accused disclosed that had stolen said answer sheet as the paper was very difficult and he sought permission for toilet and later on, destroyed the said answer sheet. He further deposed that he recorded disclosure statement of accused vide memo Ex. PW6/C. He further deposed that during interrogation, he conducted a search from the house of accused for recovery of answer sheet but answer sheet could not be recovered as it was already destroyed by the accused. He further deposed that he also prepared Khanatalshi in this respect which is Ex. PW6/D. He further deposed that he recorded the statement of witnesses and prepared challan after completion of investigation. The witness was crossexamined but nothing material came out in his crossexamination.
7) Sh. Devender Rajan was examined as PW7. He deposed that he came in the court being deputed by Regional Officer, Delhi of CBSE. He further deposed that he has also brought examination record register of CBSE which is containing examination form of Himanshu Gupta vide roll no. 6224516 and authorized to appear in the examination of State Vs. Himanshu Gupta Page No. 7 of 16 XII class which was conducted by CBSE through NC Jindal public School (examination centre) in the subject of English, Hindi, accountancy, economics and business studies. He further deposed that has also furnished certified copy of said examination form of the All India Senior School Certificate Examination, 2003 which is Ex. PW7/A. He further deposed that the Admit Card issued by CBSE in the name of Himanshu Gupta in respect of roll no. 6224516 in respect class XII examination which was conducted by CBSE through NC Jindal Public School and the same is also Facsimiled by the then controller of examination of CBSE which is Ex. PW7/B. The witness was cross examined but nothing material came out in his crossexamination. 3 Thereafter, statement of accused U/s 313 of Cr.P.C. was recorded, wherein all the incriminating evidence were put to the accused. Accused stated that he was innocent and falsely implicated in this case. Accused further stated that on 29.03.2003, he handed over the answer sheet to the invigilator and thereafter, he/she misplaced the answer sheet and he was implicated in this false case to save his/her own wrong. Accused opted to lead the DE.
Sh. Sudhir Gupta was examined as DW1. He deposed that he is father of the accused namely Himanshu Gupta. He further deposed that in the year March, 2003, his son namely Himanshu Gupta appeared as private candidate in Class 12th exam. He further deposed that he used to go to drop his son namely Himanshu Gupta and take back from examination centre. He further deposed that on 29.03.2003, he dropped his son namely Himanshu Gupta at about 10.00 a.m. for account paper at examination centre i.e. Jindal Public School. He further deposed that at about 1.00 p.m. after completion of State Vs. Himanshu Gupta Page No. 8 of 16 paper, he has taken back his son namely Himanshu Gupta at home. He further deposed that he enquired about the paper and he says his exam attempted very well. He further deposed that on 01.04.2003, he dropped his children for another exam on the account subject at about 10.00 a.m. He further deposed that till 1.30 p.m., when he reached school to take back his son namely Himanshu Gupta, he did not come from examination centre. He further deposed that on enquiry, he saw some police officials searching for his son in the school and his son was showing his admit card to the police officials. He further deposed that the exit gate of school was opened only after end of examination. During his crossexamination by Ld. APP for the State, the witness stated that he came to the Court along with his son namely Himanshu Gupta who is accused in this present case.
DW2 Sh. Himanshu Gupta who is accused in the present case was examined. He deposed that in the year of 2003, he had appeared in the examination of 12th standard conducted by CBSE Board. He further deposed that his examination centre was at NC Jindal Public School, West Punjabi Bagh, Delhi. He further deposed that the admit card was issued to him by the CBSE Board for appearing in the said examination. He further deposed that all rules were mentioned in the admit card regarding the entry & exit from the examination centre. He further deposed that the particulars role number of each candidate was written on the table in the examination room. He further deposed that on 29.03.2003, he attended his second last examination papers pertaining to the economics subject. He further deposed that he used to go to examination centre along with his father. He further deposed that his father used to drop him at examination centre at about State Vs. Himanshu Gupta Page No. 9 of 16 between 10.00 a.m. to 10.30 a.m. He further deposed that his father used to pick him from the examination centre after 1.30 p.m. as candidate of examination were allowed to leave the centre at 1.30 p.m. On that day, after attending the examination paper, he handed over the answer sheet to invigilator and thereafter, he left examination centre. He further deposed that he did not take out any answer sheet after attending the examination papers. He further deposed that on 01.04.2003, he attended the paper of the account subject in the aforesaid routine. He further deposed that when he was attending the paper of account at about 1.00 p.m. attendance sheet was passed over to another candidate without his signature and then, he made the objection against the same. He further deposed that invigilator told him that you have been called by Principal of the School. He further deposed that when he asked from the invigilator as to why Principal is calling him and also mentioned that he could not go to meet with Principal in the mid of examination but invigilator assured him that extra time will be given to him in this pretext. He further deposed that he was taken to the Principal Office. He further deposed that in the Principal Office after introduction, the then Principal asked him about the paper of economics. He further deposed that he said that the paper was OK. He further deposed that when he asked from the Principal that what happened regarding the paper of economics. He further deposed that Principal told him that answer sheet of his economics paper has been misplaced by invigilator due to which you would have to give compartment of economics paper. He further deposed that principal also warned him that you would not make any complaint regarding misplacing of answer sheet of economics papers otherwise, reputation of his school may be tarnished. He further State Vs. Himanshu Gupta Page No. 10 of 16 deposed that in between, two police office came there and took his admit card of the examination and took out him from the office of Principal. He further deposed that his father also came there and asked from police official why they have caught hold of his son. He further deposed that he was taken to the PS and thereafter, he was implicated in the present case at the instance of school authorities for concealing their faults. He further deposed that he was innocent & falsely implicated in the present case. During his crossexamination, he admitted the suggestion that he did not make any complaint against Principal, N.C. Jindal Public School regarding aforesaid incident before any higher officer as well as Director of Education. He stated that he had addressed his grievances to CBSE when explanation was sought by CBSE against his rustication. 4 This Court has heard the arguments and perused the record.
5 It is observed that there is no delay in lodging of complaint by the complainant. The complainant Sh. M.S. Tyagi, Principal of N.C. Jindal Public School was examined as PW1. Except minor improvement in the testimony of PW1, the testimony of PW1 is inconsonance with his complaint Ex. PW1/A. Further, Mrs. Renu Puri and Smt. Sushma Sharma, who were the invigilators at the time of incident in question, also corroborates the version of Sh. M.S. Tyagi. Issuance of admit card is also confirmed from the testimony of PW7.
6 Even in his statement u/s 313 of Cr.p.c., the accused Himanshu Gupta has admitted the factum of his appearance in examination on 29.03.2003.Only defence raised by the accused was to the effect that on the day of incident, he had handed over the answer sheet to the invigilator and thereafter, she had misplaced the answer sheet in State Vs. Himanshu Gupta Page No. 11 of 16 question. The accused has got himself examined as DW2. The accused has also got examined his father Sh. Sudhir Gupta as DW1. Nowhere in his examination in chief, DW1 had stated that if the accused had ever informed him regarding the facts of misplacement of his answer sheet by the invigilator concerned. It is observed that no written complaint has been filed by the accused in this regard. It appears that no effort has been made by the accused to ascertain as to what action has been taken by the CBSE subsequent to his lodging grievances to the CBSE. It is observed that both DW1 and DW2 are interested witnesses and no independent witness was got examined by the accused. Accordingly, the defence raised by the accused do not inspire the confidence of this Court being after thought.
It is pertinent to mention here that it has been held by Hon'ble Supreme Court of India in State Of U.P vs Krishna Gopal & Anr, 1988 AIR 2154 that, "To constitute reasonable doubt, it is must be free from an over emotional response. Doubts may be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. lt must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and, State Vs. Himanshu Gupta Page No. 12 of 16 ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accusedpersons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."
7 All the prosecution witnesses have deposed about the incident fully in consonance with the facts mentioned in the charge sheet. Nothing material has come out in their respective crossexamination. There is no reason to disbelieve the testimony of the prosecution witnesses. The prosecution has proved the fact that the accused namely Himanshu Gupta has misappropriated the answer sheet of economics paper which was entrusted to him and also destroyed the evidence. All the ingredients of section 406/201 of IPC are proved. The testimony of prosecution witnesses comes out to be clear, convincing, trustworthy & inspires confidence of this Court. Accordingly, accused namely Himanshu Gupta is hereby convicted for the commission of offence under Section 406 & 201 of IPC. The convict be heard on the point of sentence on 25.03.2014 at 2.00 p.m. Announced in the open Court, On 10th, March, 2014.
(Pankaj Arora) MM01 (West)/Delhi 10.03.2014 State Vs. Himanshu Gupta Page No. 13 of 16 FIR No. 211/13 PS: P. Bagh 10.03.2014 Present: Ld. APP for the State.
Accused namely Himanshu Gupta with Ld. Counsel.
Vide separate judgment dictated in the open court, the accused namely Himanshu Gupta is hereby convicted for the commission of offence under Section 406/201 of IPC. The convict be heard on the point of sentence on 25.03.2014 at 2.00 p.m. Issue court notice to Probation Officer concerned for filing the report regarding antecedent and behavior of the convict on or before NDOH.
(Pankaj Arora) MM01,West, THC, Delhi 10.03.2014 State Vs. Himanshu Gupta Page No. 14 of 16 FIR No. 211/03 PS: P. Bagh 25.03.2014 ORDER OF SENTENCE Present: Ld. APP for the State.
Accused namely Himanshu Gupta in person with Sh. Alok Bansal, Ld. Counsel.
Report file by the Probation Officer. The same is perused. As per the report, convict is having fixed place of the abode. He is not involved in any other criminal case and judicially acceptable behavior and conduct. It is stated that convict is unmarried & has already completed his B.A., LL.B from Chaudhary Charan Singh University.
Heard on the point of sentence. It is stated on behalf of the convict that he is facing the trial since year 2003. Since then, he is not involved in any other criminal act. It is submitted that convict has already been rusticated by C.B.S.E. for 5 years. It is submitted that stigma of conviction would spoil his entire career.
It is observed that convict has appeared on all the dates before this Court. Keeping in view the circumstances of the case, age of the convict, the fact that convict is a student & the character of the offender, this Court is of the view that the convict Himanshu Gupta be released on his furnishing personal bond in the sum of Rs. 20,000/ and one surety of the like amount to appear and receive sentence whenever called by this Court during the next one year. Till then, the convict Himanshu Gupta shall remain under the supervision of Probation Officer namely Sh. Vineeta Sharma and not to leave India & to abstain from intoxicants. Bail Bond under Section 4 (1) of the Probation of Offender Act, 1956 furnished, perused and accepted.
State Vs. Himanshu Gupta Page No. 15 of 16
Copy of this Order and Judgment dated 10.03.2014 be supplied to the convict namely Himanshu Gupta free of cost. Copy of this Order be sent to the Probation Officer.
File be consigned to the Record Room.
(Pankaj Arora) MM01,West, THC, Delhi 25.03.2014 State Vs. Himanshu Gupta Page No. 16 of 16