Delhi District Court
State vs . Gyanender Singh on 12 August, 2011
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IN THE COURT OF SH. VIDYA PRAKASH: A.C.M.M1,
ROHINI COURTS : DELHI
FIR No.10/94
PS Mukherjee Nagar
U/s 420/466/471 IPC
State Vs. Gyanender Singh
ID No.02404R0145712006
JUDGMENT
a) Sl. No. of the case : 31/2
b) Date of commission of offence : During period 19811982
c) Name of complainant : Secretary Education Board,
Allahabad, UP
d) Name of accused persons : Gyanender Singh
s/o Sh. Ram Charan
r/o Qr. No. B14, Pritam Pura,
Police Line, Delhi.
e) Offence complained of : U/s 420/466/471 IPC
f) Plea of the accused : Pleaded not guilty
g) Date of order : 04.02.2011
h) Final order : Acquitted
Date of Institution : 04.08.1994
Judgment reserved on : 30.07.2011
Date of Decision : 12.08.2011
FIR No.10/94 Page 1/27
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THE BRIEF REASONS FOR THE JUDGMENT:
The accused has been facing trial in respect of offences U/s 466/420 read with Section 471 IPC on the allegations that during the period 198182, he forged his matriculation certificate by altering the actual date of birth from 03.7.58 to 23.12.60 and used the said forged certificate while applying for the post of Constable in Delhi Police in the year 1982 and induced the Government to offer him job of Constable on the basis of said forged certificate.
In brief, the prosecution story is that one letter dt. 09.12.93 was received from Secretary, Board of Education Allahabad(UP) to the effect that in response to the letter dt. 02.11.93 received in their office, it was being informed that Sh. Gyanender Singh (accused herein) had passed high school examination in the year 1975 against roll number 67745 from Chunni Lal Intermediate College, Bullandshaher and his date of birth is 03.7.58 as mentioned in photocopy of matriculation certificate annexed with the letter dt. 02.11.93. On the basis of said letter dt. 09.12.93, FIR was got registered in respect of offences U/s 420/468/471 IPC with PS Mukherji Nagar and investigation was entrusted to SI K.K Gaur of Forgery Section Crime Branch. During investigation, IO recorded the statements U/s 161 Cr.PC of various persons and also got verified the forged certificate from the office of Secretary, Board of Education. The actual date of birth of accused was found to be 03.7.58 but the accused had taken benefit of getting FIR No.10/94 Page 2/27 3 employment in Delhi Police on the post of Constable on the basis of forged certificate showing his date of birth as 23.12.60.
After completion of the investigation, the charge sheet U/s 420/468/471 IPC was filed in the present case against the accused on 04.08.1994. Complete copies of the charge sheet and documents were supplied to the accused and after complying with the provisions of Section 207 Cr.P.C, arguments on charge were heard. Vide order dated 15.09.95, charge was framed upon the accused for the offences under section 466/420/471 IPC to which he pleaded not guilty and claimed trial.
In order to bring home the guilt of accused, the prosecution has examined 8 witnesses till 02.3.10 namely PW1 SI Mahesh Chand, PW2 Sh Prabhakar Gune, Deputy Secretary, Intermediate Board, Allahabad, UP, PW3 Ct. Vijay Pal Singh, PW4 SI Raj Singh, PW5 Sh. Prem Pal Singh Officiating Principal, Chunni Lal Intermediate College, PW6 HC Suresh Chand, PW7 Ramesh Kumar and PW8 Inspector K.K Gaur (the then SI). The accused has also examined himself as DW1 towards DE after seeking permission U/s 315 Cr.PC to examine himself in this case.
In his statement U/s 313 Cr.PC recorded on 3.5.10 by Ld predecessor of this Court, the stand of accused was of general denial. The accused stated that matriculation certificate Ex PW6/A was issued by Board in usual course of business FIR No.10/94 Page 3/27 4 alongwith certificates of other students of his batch and he has not done any cutting, erasing or alteration in the original certificate. He further stated that false case has been registered against him and his date of birth is 23.12.60. He is totally innocent and has been falsely implicated at the instance of senior officers as he had approached CAT for seeking relief of setting aside departmental inquiry initiated against him.
I have already heard Ld. APP for the State and Ld counsel Sh. K.S Rana Adv on behalf of accused. I have also carefully perused the material available on record.
Out of 8 witnesses examined by prosecution as mentioned above, PW2 Sh. Prabhakar Gune, Deputy Secretary, Intermediate Board, Allahabad, UP, PW4 SI Raj Singh, PW5 Sh Prem Pal Singh and PW8 Inspector K.K Gaur are the material witnesses in this case.
PW1 is formal witness who is DO and has proved carbon copy of FIR no. 10/94 as PW1/A. The said PW has not been cross examined by accused despite grant of opportunity.
PW3 is again formal witness who simply deposed that on 10.1.94, he was posted in Forgery Section of Crime Branch and at about 11.30 P.M, he had gone to PS Mukherji Nagar alongwith rukka on the basis of which FIR was got registered. During his cross examination, he deposed that rukka was not prepared in his presence.
PW6 HC Suresh Chand produced original certificate bearing no. 28981 issued FIR No.10/94 Page 4/27 5 against roll no. 67745 in the name of Gyanender Singh( which is the alleged forged document produced by accused at the time of his selection for the post of Constable in Delhi Police) showing his date of birth as 23.12.60. Same has been exhibited as PW6/A and its seizure memo has been proved as Ex PW6/B. The said PW has not been cross examined by accused despite grant of opportunity.
PW7, Ramesh Kumar deposed that during the year 1993, investigation of this case was entrusted to him on which he had gone to Inter Mediate College, Bullandsher (UP) regarding verification of the date of birth of accused. He verified the record of Inter Mediate College and as per said record, the date of birth of accused was found to be 23.12.60. He further deposed that he had also gone to UP Board office and on inquiry being made from the Board, date of birth of accused was 03.7.58. During his cross examination on behalf of accused, PW7 deposed that he had gone through his statement U/s 161 Cr.PC and that is why, he deposed the date of birth of 03.7.58 during his chief examination. He admitted that there is no mention of date of birth of 03.7.58 of accused Gyanender in his report Ex PW7/D1. He further stated that noting portion from point B to B1 in Ex PW7/D1 is not written by him. He could not tell as to how many documents were handed over by him to the officials sitting in the office after his investigation. He denied the suggestion that he never verified the date of birth of accused at Intermediate College, Bullandsher as well as from the UP Board office.
PW2 Sh. Prabhakar Gune entered into witness box and deposed that he was posted as Deputy Secretary, Intermediate Board, Allahabad, UP when he had received FIR No.10/94 Page 5/27 6 a letter dt. 2.11.93 and on the basis of tabulation register and counterfoil of issuing certificate, his Assistant Secretary namely Sh. Krishan Avtar Sharma had written a letter to Additional DCP, Crime Branch. He identified the signatures of Sh. Krishan Avtar Sharma on said letter Ex. PW2/A. He also produced tabulation register containing details regarding marks, roll number, father's name and date of birth as 03.7.58 in respect of examination of accused during the year 1975 and proved copy thereof as PW2/B. He also proved copy of counterfoil of issuing certificate as PW2/C. During his cross examination on behalf of accused, he deposed that Sh. Krishan Avtar Sharma was working as Assistant Secretary since 1993 till his retirement. He admitted that official register is maintained in his office and endorsement is to be made in said register in respect of delivery/dispatch of letters from his office but he did not produce the said dispatch/official register before the Court. He also could not tell the dispatch number against which letter Ex PW2/A was dispatched from his office. He admitted that he himself did not dispatch the letter Ex PW2/A and there is an overwriting on the date of dispatch in the official copy of Ex PW2/A. He also admitted that dispatch no. 1256 and date of 09.12.93 were written by black ink separately and also that date was changed from 7th to 9th. He could not disclose any reason as to why and by whom the cutting was made at mark B in Ex PW2/A. He did not remember as to whether copy of counterfoil Ex PW2/C was also given to SI Ram Kumar on 09.12.93 or not. He deposed that certificate mark A was issued from his office to accused Gyanender Singh and the serial number on certificate mark A as well as on counterfoil Ex PW2/C FIR No.10/94 Page 6/27 7 are same. He admitted that as per procedure followed in the office, date of birth is endorsed in their record on the basis of application form filed by the candidate. He admitted that certification of the aforesaid examination were prepared after two years of the examination. No inquiry was made from him by IO concerning investigation of this case in the year 1993 and there was no written request from the side of IO regarding destruction of record. He testified that except counterfoil and tabulation register, there is no other record available in this office to check the particulars. The tabulation register and counterfoil are prepared on the basis of application filed by the candidates.
PW4 SI Raj Singh was investigating officer in this case. He deposed that on 12.5.94, he had gone to Allahabad and met Deputy Secretary namely Sh. Prabhakar Gune who after verifying his record available in the office, told him that date of birth of accused Gyanender Singh is 03.7.58 and not 23.12.60 and gave it in writing vide his letter Ex PW4/A. Said letter was seized by him vide seizure memo Ex PW4/B. During his cross examination, he deposed that he has conducted several investigations at the level of school, college and Board during the course of his service. He admitted that as per rules and practice, the particulars in examination form of students for Board Examination are given as per school/ inter college record and same are thoroughly verified by school teacher as well as principal who put their signatures on such examination form. However, he did not collect copy of examination form submitted by accused with UP Secondary Board during his investigation and also did not verify the FIR No.10/94 Page 7/27 8 date of birth from the said examination form. He also did not verify the date of birth of accused from specific register of Board wherein particulars are incorporated from examination form. He also did not verify the same from register maintained in relation to issuance of admission tickets to the students. He further deposed that during investigation, he had met Sh. Prabhakar Gune and showed him document Ex PW6/A ( alleged forged document) and said Sh. Prabhakar Gune told him that said certificate had been issued by his office i.e U.P Secondary Board. He admitted that there is no cutting, erasing, over writing or alteration initially in certificate Ex PW6/A. He did not examine tabulator and clerk concerned who prepared tabulation sheet of marks Ex PW2/B. He did not see the counterfoil of Ex. PW6/A in office of Board and also did not check the date of birth in the counterfoil. He did not examine Sh. Krishan Avatar Sharma who is complainant in this case during his part of investigation. He further deposed that Sh. Prabhakar Gune did not check any record in his presence at the time of handing over document Ex PW4/A. PW5 Sh. Prem Pal Singh Officiating Principal of Chunni Lal Inter College, Bullandsher(UP) produced summoned record register(herein after referred to as S.R Register) pertaining to year 1971 onwards. The name of accused herein was mentioned at serial no. 3160 in the said register. He deposed that as per their record, date of birth of accused is mentioned as 23.12.60. The said witness was permitted to be cross examined by Ld APP on behalf of State. During such cross examination, he admitted that date of birth was not mentioned in figure in the column of date of birth as FIR No.10/94 Page 8/27 9 it is mentioned in all the certificates on record. The copy of relevant entry at serial no. 3160 of S.R Register has been proved as Ex PW5/B. PW5 denied the suggestion that date of birth in figure has been removed/erased from the column or that there is over writing in the column of date of birth. The said witness was also cross examined by accused. During said cross examination, he admitted that letter Ex PW5/A was not issued in his presence and he cannot say as to whether said letter was issued from his office or not. He admitted that official record in original pertaining to Ex PW5/A and PW5/B are kept in safe custody and the date of birth of 23.12.60 mentioned in the relevant column is not a tempered one.
PW8 Inspector K.K Gaur is the main IO in this case. He deposed that in the year 1994, he had received complaint on which he made endorsement PW8/A and got the case registered in PS Mukherji Nagar. He had examined various PWs in connection with the allegations made against accused Gyanender Singh to the effect that he had obtained employment in Delhi Police on the basis of bogus certificate showing his date of birth as 23.12.60. He had also collected original certificate Ex. PW6/A from HC Suresh Kumar.
During his cross examination on behalf of accused, he deposed that he has investigated a number of cases at the level of school, college and Intermediate Board, Universities prior to handling of present matter. He admitted that scholar register is prepared and maintained by concerned official of Chunni Lal Intermediate College, Bullandsher (UP) in regular course of business besides other records. He further FIR No.10/94 Page 9/27 10 stated that concerned official of the said college used to make entries in the said scholar register regarding various particulars including date of birth of every student in discharge of such official duty. He also admitted that Ex PW5/B(i.e copy of S.R Register) is duly verified by Principal of the College periodically in relation to the particulars mentioned therein. He also admitted that date of birth of accused is mentioned as 23.12.1960 in the Scholar Register of Chunni Lal Intermediate College pertaining to year 197275. He admitted that school admission form of student is filled up, signed and deposited by parents in the school/college and in case where parents are illiterate, such forms are filled up either by school authorities or by the guardian. He did not know as to whether the date of birth of accused was filled up as 23.12.60 in the admission form by father of accused in Chunni Lal College in 6th class or not. He did not know as to whether the particulars in the application form of a student for Board Examination(10th class examination) are given as per Inter College record or that same were thoroughly verified by class teacher and principal who put their signatures on the form. He testified that as per the procedure, official of Chunni Lal Intermediate College themselves deposited the examination form with UP Board and entries are made in school record of Chunni Lal Intermediate College and from there particulars are taken in application form. On the basis of particulars of application form, specific student registration register is prepared by UP Board Allahabad and on the basis of such record, admission tickets are prepared and issued to the candidates. He did not collect copies of application form of Gyanender Singh/accused submitted FIR No.10/94 Page 10/27 11 by Inter College Authority with Inter Board, Allahabad and also did not verify date of birth of said accused from the said examination form. He also did not collect copy of specific student registration register and admission ticket register qua accused from the office of UP Board, Allahabad. He admitted that tabulation sheet of marks is prepared after examination and evaluation of answer sheets of the students and said tabulation sheet is mainly the record of marks obtained by the students. He also stated that there is no counterfoil of 10th Certificate in the UP Board and cannot comment regarding so called counterfoil Ex PW2/C. However, he denied the suggestion that documents Ex PW2/A to PW2/C have been fabricated by him or his senior officers with the connivance of Board officials. He did not examine either tabulator or clerk concerned who prepared the document Ex PW2/B. He also did not examine Sh. Krishan Avtar Sharma during investigation despite the fact that letter dt. 09.12.93 Ex PW2/A has been issued under the signature of Sh. Krishan Avtar Sharma, Assistant Secretary UP Board, Allahabad. He also did not check the date of birth of accused from his primary school record and also did not collect copy of S.R Register and transfer certificate issued by primary school from Guard file of Chunni Lal Intermediate College after registration of FIR.
As already mentioned above, the accused examined himself as DW1 towards DE. During his chief examination, he categorically deposed that he was born on 23.12.60 at his village Rasoolpur, District Bullandsher, UP and he was got admitted in Chunni Lal Intermediate College, Bullandsher, UP on 08.7.70 by his father and his FIR No.10/94 Page 11/27 12 admission form was filled up by teacher concerned by putting his date of birth as 23.12.60. In 1974, he had filled up the examination form for the Board examination of 10th class with the assistance of school teacher and the particulars of the examination form was duly tallied with the record of the college by teacher as well as the principal of the said college who authenticated the same by putting their signatures. The said examination form was deposited with UP Intermediate Board, Allahabad by the school authority and he passed 10th class examination and certificate Ex PW6/A was issued by Inter Board which was collected by him from Chunni Lal Intermediate College. He further deposed that in 1981, he applied for the post of Constable in Delhi Police and after qualifying the test, he joined the services in 1982 against his appointment letter dt. 11.2.82 mark A. Thereafter, his education records and antecedents were thoroughly verified by police administration at different level. Subsequently, he also qualified the examination of ASI Finger Print vide appointment letter dt. 24.11.86 mark B. Even at that time, his antecedents and certificates were thoroughly verified by the police administration. He also qualified All India Board Examination of Finger Print Expert and was awarded expert certificate dt. 10.4.91 mark C. Thereafter, he was also promoted as SI vide letter mark D and was also awarded several certificates mark E to mark Z4 during the period 1982 till 2003.
He deposed that he had married to Smt. Umesh Kumari but due to temperamental differences and irretrievable break down of marriage, they obtained FIR No.10/94 Page 12/27 13 divorce by mutual consent vide divorce decree Ex DW1/1 but his brotherinlaw namely Sh. Jitender Singh was having revengeful attitude towards him. He had filed frivolous suit in Ghaziabad Court which was dismissed vide order dt. 15.5.89 certificate copy of which has been proved as DW1/2. Said Jitender Singh also filed frivolous complaint against him with the department on which he was subjected to departmental inquiry which was quashed by CAT in the year 1992 in OA no. 93/91. His senior Administrative Officers took order of CAT as insult and thereafter, the criminal action was initiated against him. He deposed that certificate Ex PW6/A is genuine one and was issued by Intermediate Board, Allahabad. During his cross examination on behalf of prosecution, he denied the suggestion that his date of birth is intentionally not mentioned in figures(numericals) in Ex PW5/B. He never had the opportunity to check the record of Chunni Lal Intermediate College.
Before coming to the facts of the present case, it is relevant to mention here that in order to prove the charge in respect of offence U/s 466 IPC levelled against the accused, it was essential for the prosecution to prove the following ingredients:
(a) that the matriculation certificate Ex PW6/A is false;
(b)that the aforesaid document has been made by accused dishonestly or fraudulently in one of the three modes specified in Section 464 IPC;
(c)that the accused made the aforesaid document with intent to cause damage or injury to (i) the public, or (ii) any person; or to support any claim or title; or to cause any FIR No.10/94 Page 13/27 14 person to part with property; or to cause any person to enter into an express or implied contract; or to commit fraud or that fraud may be committed.
Section 464 IPC explains as to what amounts to the making of a ' false document'. It is well settled law that a person who is not the writer of forged document cannot be charged with the offence of forgery. It has been held by Hon'ble High Court of Rajasthan in the matter reported at AIR 1965 Rajasthan 9 as under: To bring the case within clause 1 of Section 464, Penal Code, it is necessary to establish that the accused intended to induce a belief that a document was made, signed, sealed or executed by the authority of a person who did not make, sign, seal or execute it or that it was made, signed, sealed or executed at a time when it was not so done. Evidently, Section 464 cannot be invoked to cases where a public officer knowingly makes false entries initially in the public record on his own authority. Where the prosecution case is not one of subsequent alteration of the document but is essentially one of making initial incorrect and unauthorized entries in the revenue record the making of such entries cannot be said to constitute the making of fasle document under section 464.
In order to attract the offence of cheating punishable U/s 420 IPC, it was incumbent upon the prosecution to prove the following ingredients:
(a) that the accused cheated somebody within the meaning of Section 415 IPC; and FIR No.10/94 Page 14/27 15
(b) that the accused thereby dishonestly induced someone who has been deceived, to deliver any property to any person or to make, alter or destroy whole or any part of valuable security or anything which is signed or sealed and which is capable of being converted in to a valuable security.
In other words, the prosecution was required to prove on record that the accused herein used said forged document as genuine one having knowledge or reason to believe the said document to be forged one and induced the police department to provide him employment as Constable in Delhi Police on the basis of said forged document.
It is needless to mention here that it is the bounden duty of investigating agency to investigate the matter in fair and proper manner as well as to find out the truthfulness or otherwise of the allegations levelled against the accused. The duty of IO is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. (Reliance placed on 1974 Cr.L.J 890(SC) and (1997) 2 Crimes 660 (Gauhati).
It is well settled law that the prosecution has to prove its case beyond reasonable doubt and has to stand on its own legs. The accused has a right to remain silent till the conclusion of trial and weakness in defence of accused cannot be taken to have proved the case of prosecution. It has been held by Hon'ble Apex Court in the FIR No.10/94 Page 15/27 16 celebrated judgment in the matter titled as " State (Delhi Administration) Vs. V.C Shukla and Anr." reported at AIR 1980 SC 1382. In para8 that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt.
It is no more resintgra in law that whenever two views are possible on the basis of evidence adduced by the prosecution on record then the view which is favourable to the accused should be accepted. While observing so, I am also fortified by the judgment of Hon'ble Apex Court in the matter titled as " Kali Ram Vs. State of Himachal Pardesh" reported at AIR 1973 SC 2773 wherein it has been held that when two views are possible on evidence adduced in a case one pointing to guilt of accused and other to his innocence then view favourable to accused should be adopted.
Now, it is to be examined as to whether the prosecution has been able to prove the said charges against the accused herein beyond reasonable doubt or not. While opening his arguments, Ld. Defence counsel submitted that there is an inordinate and unreasonable delay in registration of FIR in this case which has not been explained by the prosecution. It was argued that SI Ram Kumar was sent with predraft complaint to the office of Madhyamik Siksha Parishad, Allahabad in December 1993 in order to pressurize the Board official to support the prosecution story as per direction of senior officer and said SI Ram Kumar submitted his report on 13.12.93 but still FIR has been registered only on 10.01.94.
FIR No.10/94 Page 16/27 17
On the other hand, Ld. APP for the State has argued that there is no delay in the registration of FIR as FIR was registered soon after receipt of letter dt. 09.12.93 Ex.PW2/A. However the said argument of Ld. APP for the State does not carry any force for the simple reason that letter Ex.PW2/A is dt. 09.12.93 which is addressed to DCP Crime & Railway but endorsement has been made on the said letter only on 10.01.94 by SI K.K.Gaur and it is only then FIR has been registered on the said date. There is no material available on record which may show as to when the letter Ex.PW2/A was actually received in the office of Crime Branch. Even the testimony of PW7 (Retd.) SI Ram Kumar is completely silent in this aspect. He nowhere deposed about any particular date or month when he received the letter Ex.PW2/A. However during his cross examination, he has referred to his report Ex.PW7/D1 which shows that same was submitted by him on 13.12.93. Even if it is presumed for the sake of argument that letter Ex.PW2/A was received by SI Ram Kumar on 13.12.93 still it has not been explained as to why FIR has been registered on 10.01.94. That being so, the Court is in agreement with the submission of Ld. Defence counsel that there is a delay in registration of FIR which has not been explained by prosecution. Same creates doubt in the prosecution story benefit of which must go to the accused.
The Court also finds considerable force in the argument raised on behalf of FIR No.10/94 Page 17/27 18 accused that the complainant namely Sh. Krishan Avtar Sharma on whose letter/complaint dt. 09.12.93 Ex.PW2/A, FIR has been registered in this case, has not been examined by the prosecution during trial. Same is fatal to the case of prosecution as no explanation whatsoever has been furnished by prosecution for nonexamination of the complainant in this case. It has come on record during cross examination of PW2 that Sh. Krishan Avtar Sharma was working as Asstt. Secretary in the office of U.P.Board Allahabad till his retirement. The residential address of the complainant must be available in the record of U.P. Board Allahabad and thus, it was not difficult to secure the presence of complainant in this case.
Although, Ld. APP for the State has submitted that nonexamination of Sh. Krishan Avtar Sharma in this case is immaterial as prosecution has produced Sh. Prabhakar Gune (PW2) during trial who was familiar with the handwriting and signature of Sh. Krishan Avtar Sharma and was also posted as Dy. Secretary in the Board of Secondary Education, U.P. Board (Allahabad) but the Court does not agree with the said contention for the simple reason that PW2 himself deposed before the Court that letter Ex.PW2/A was neither prepared or signed in his presence nor same was dispatched or delivered in his presence. He also admitted that said letter is not counter signed by him and he could not produce dispatch register containing relevant entry regarding dispatch of said letter from the concerned office.
Be that as it may, letter Ex.PW2/A which is the basis of FIR in this case, is not free from doubt as there is an overwriting in the said letter so far as the date therein FIR No.10/94 Page 18/27 19 th th has been changed from 7 to 9 as also admitted by PW2 during cross examination. PW2 could not explain as to why and by whom, cutting has been made at point B in the said letter wherein words 'Model Town' have been scored of and instead the words 'Mukherjee Nagar' have been mentioned. Moreover, PW2 has admitted during his cross examination that dispatch number 1256 and date of 09.12.93 were written separately in black ink. Again, no explanation is forth coming on behalf of prosecution as to why same were mentioned in black ink separately and by whom. In this backdrop, the admission of PW4 as well as of PW8 Inspector K.K Gaur that they did not examine the Tabulator as well as the Clerk concerned who prepared the tabulation sheet Ex PW2/B assumes importance. In view of what has been discussed above, it was incumbent upon the prosecution to examine Sh. Krishan Avtar Sharma who is the author of the letter/complaint dt. 09.12.93 Ex PW2/A as the concerned Tabulator and Clerk who issued the tabulation sheet Ex PW2/C have neither been cited as prosecution witnesses nor examined during trial.
Moreover,there is a reference of letter dt. 02.11.93 in letter /complaint dt. 09.12.93 Ex PW2/A but said letter dt. 02.11.93 has not seen the light of the day till date. Investigating agency did not care to place even copy of said letter on record what to say of proving it during the trial. Although, Ld APP for the State submitted that even if copy of letter dt. 02.11.93 referred to in letter Ex PW2/A has not been placed on record, same is hardly material. However, the said submission does not hold any water. It is the specific defence taken by accused that SI Ram Kumar had gone with FIR No.10/94 Page 19/27 20 pre drafted complaint to the office of UP Board, Allahabad and had pressurized the Board officials to issue the letter dt. 09.12.93 Ex PW2/A. In order to rule out the said possibility, it was appropriate for the investigating agency to place on record copy of letter dt. 02.11.93 as referred to in letter Ex PW2/A. Had there been any such letter dt. 02.11.93, same would have been produced on record. Having not done so, an adverse inference is liable to be drawn against the prosecution to the effect that there was no such letter dt. 02.11.93 and the letter Ex PW2/A has been procured by investigating agency from the office of UP Board, Allahabad (UP). This is more so when PW2 could not produce either any dispatch register containing relevant entry regarding delivery/dispatch of letter Ex PW2/A nor he could provide any satisfactory reply in this regard. Even said witness of prosecution also did not produce original of letter dt. 02.11.93 referred to in letter Ex PW2/A despite the fact that said letter must be available in his official record.
So far as the tabulation sheet Ex PW2/A and counterfoil of issuing certificate Ex PW2/C are concerned, it is relevant to mention that the official who had prepared the tabulation sheet Ex PW2/A, has neither been examined during investigation nor cited as a witness by the prosecution for the reasons best known to them. Considering the fact that the prosecution has come out with the allegation that actual date of birth of accused is 03.07.1958 and the basis of said allegation is claimed to be the date of birth of accused as mentioned in tabulation register as well as in counterfoil of issuing certificate, Court is of the view that it was essential on the part of investigating agency FIR No.10/94 Page 20/27 21 to examine Tabulator as well as Clerk concerned who had made the relevant entries in the tabulation register as well as in the counterfoil of issuing certificate. However, it has been admitted by PW4 Retd. S.I Raj Singh as well as PW8 Inspector K.K Gaur that both of them did not examine either of the aforesaid officials during investigation. Non examination of said officials is, therefore, fatal to the case of prosecution. It is also pertinent to note that both the IOs who remained associated during investigation of the present case, also did not care to check up or verify the relevant record on the basis of which, the particulars of candidates appearing for Board Examination, are entered in said tabulation register as well as in counterfoils of issuing certificates. PW8 Inspector K.K Gaur has categorically admitted during cross examination that despite being aware about the procedure usually adopted at the level of school, college, Intermediate Board and Universities where scholar register is prepared and maintained by concerned officials of Chunni Lal Intermediate College, Bullandsahar in regular course of business and also that officials of said college used to make entries in the said scholar register which are also duly verified by the Principal of the college periodically with regard to the particulars mentioned therein and also that school admission form of students are also thoroughly verified by class teacher as well as by Principal against their signatures, no attempt was made by him to verify said record to ascertain the date of birth of the accused mentioned in the said record.
The Court also finds considerable force in the submission made on behalf of accused that tabulation sheet of marks issued to a candidate is in printed form but the FIR No.10/94 Page 21/27 22 tabulation sheet Ex PW2/B produced by PW2 during his statement is hand written. Similarly, counterfoil Ex PW2/C of issuing certificate is also hand written whereas same ought to have been printed one. It is also interesting to note that tabulation register and counterfoil of issuing certificate have been produced for the first time during trial in the statement of PW2 and neither said register/counterfoil nor copies thereof were seized by investigating agency during investigation despite the fact that FIR was registered on 10.01.94 and the charge sheet has been filed on 04.08.94. Anyhow, it is quite apparent from the statements of PW4 SI Raj Singh and PW8 Inspector K.K Gaur that none of them cared to collect the authentic reports or to examine the material witnesses during investigation.
The authenticity of counterfoil of issuing certificate Ex PW2/C itself is in doubt in view of the statement of PW8 wherein he has deposed that there is no counterfoil of th 10 certificate in the UP Board and he cannot make any comment regarding so called counterfoil Ex PW2/C. The extracts of tabulation register Ex PW2/B as produced by PW2 on record, also cannot be relied upon by the Court for the simple reason that PW2 himself was not competent to prove the said document as he was neither author of the said document nor the said document bears his signatures at any point and the said document was also not prepared in the presence of said witness. That being so, the said document Ex PW2/B cannot be said to have been proved in accordance with law of evidence. It is well settled law that mere putting of an exhibit mark on a document, does not dispense with its proof and such document is still required to be FIR No.10/94 Page 22/27 23 proved in accordance with law of evidence. Still if any authority is required then reference with advantage can be made to the judgments reported at RLR 1995 286 and 1971 SC 1865. For the reasons mentioned herein above, the document Ex PW2/B is liable to be discarded.
This brings me down to the next point as to whether prosecution has been successfully able to prove on record that matriculation certificate Ex PW6/A is forged one or not. The Court finds considerable force in the submission made on behalf of accused that in case prosecution is claiming matriculation certificate Ex PW6/A to be forged one then said certificate ought to have been sent to FSL for verification and to obtain expert opinion as to whether the said certificate has been forged or not. It is relevant to note that PW2 (who is the only star witness relied by prosecution) as well as PW8 have categorically admitted during their cross examination that the said certificate Ex PW6/A has been issued from the office of UP Board, Allahabad. It has been further admitted by PW8 that there is no cutting, erasing, overwriting or any other alteration anywhere in document Ex PW6/A. Not only this, PW4 Retd. SI Raj Singh deposed during his cross examination that during his visit to the office of UP Board, (Allahabad), Sh. Prabhakar Gune, Deputy Secretary, UP Board(PW2) had told him that the matriculation certificate Ex PW6/A had been issued by his office. He also admitted that there is no cutting, erasing, overwriting or any other alteration in the said document.
Once it is admitted by the prosecution witnesses during trial that matriculation FIR No.10/94 Page 23/27 24 certificate Ex PW6/A is issued by the office of UP Board, Allahabad then the Court fails to understand as to how the accused can be presumed to have forged the said document. This is more so when it has been admitted by prosecution witnesses during their cross examination that as per relevant procedure followed in Chunni Lal College, examination forms of students used to be deposited by officials of said college themselves and the particulars of the examination form used to be thoroughly checked and verified by the class teacher as well as the Principal of the said college and they also used to put their signatures as token of having verified those particulars. It has also come on record that the officials of Chunni Lal Intermediate College themselves used to deposit the matriculation examination forms with UP Board and entries are made in such examination forms on the basis of entries available in the school record. PW8 has also admitted during cross examination that on the basis of specific students registration register and application forms, admission tickets used to be issued to the candidates and same were also mentioned in admission tickets register but still he did not collect either copy of application form of accused submitted by Inter College Authority with Inter Board, Allahabad and he also did not verify the date of birth of accused mentioned in his examination form. He also did not collect the copies of specific students registration register and admission tickets register in respect of accused from the office of UP Board, Allahabad. In the aforesaid backdrop, the said record was relevant record which ought to have been collected by IO during investigation as they would have thrown sufficient light on the aspect of forgery of FIR No.10/94 Page 24/27 25 document but investigating agency failed to do so. It is appropriate to refer to Section 35 of Indian Evidence Act which provides that an entry in any public or other official book, register or record stating a fact in issue or relevant fact which is made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined upon him by law of the country in which such book or register or record is kept then said entry in itself is a relevant fact. Considering the relevancy of the entries contained in S.R register, specific students registration register, admission tickets register, examination form of Board examination in respect of accused in the light of said provision, this Court is of the view that all the aforesaid record being relevant and material record should have been seized by IO during investigation. Due to the failure on the part of investigating agency to collect those material record during investigation, the prosecution is bound to face the consequences of having not proved the guilt of accused beyond reasonable doubt.
At this juncture, it is also relevant to mention here that PW5 Sh. Prem Pal Singh Officiating Principal of Chunni Lal Intermediate College, Bullandsher, (UP) (who is the prosecution witness examined in this case), has not supported the prosecution case at all. He has categorically deposed before the Court that as per record available in the said college, the date of birth of accused is 23.12.60. Although, the prosecution made futile attempt to challenge the testimony of said witness by putting suggestion during his cross examination that date of birth has not been mentioned in figure in the column of date of birth in S.R Register but the said suggestion has been completely denied by FIR No.10/94 Page 25/27 26 the said witness who has testified that S.R Register containing relevant entry in respect of accused showing his date of birth as 23.12.60, is kept in safe custody and also that the date of birth mentioned therein is not tempered one. The Court does not find any reason as to why the testimony of PW5 should be discarded and as to why the copy of S.R record Ex PW5/B proved by said witness, should not be taken into consideration. The prosecution has not been able to bring on record any material so as to disbelieve the testimony of PW5 or to ignore the copy of S.R record Ex PW5/B. For the reasons mentioned herein above, the Court is of the considered view that prosecution has miserably failed to prove on record that matriculation certificate Ex PW6/A of accused is forged or false document. Thus, the offence U/s 466 IPC could not be proved beyond shadow of doubt. Once it is held that prosecution has failed to prove the offence U/s 466 IPC, it necessarily follows that the other two offences i.e offence U/s 420 read with Section 471 IPC also could not be proved as in order to prove said two offences, it was pre requisite for the prosecution to show that accused had forged his matriculation certificate Ex PW6/A and used the same in any Government Department. Since the prosecution has failed to prove that matriculation certificate Ex PW6/A is forged one, there is no question of accused inducing the police department to provide him employment on the post of Constable on the basis of forged document or commission of the offence of cheating punishable U/s 420 IPC. Consequently, the accused Gyanender Singh stands acquitted. His personal bond FIR No.10/94 Page 26/27 27 stands cancelled. However, his surety bond shall remain in force for a period of six months from the date of this judgment. Original documents if any of accused be returned after cancellation of endorsement if any. File be consigned to Record Room.
Announced in open Court (Vidya Prakash)
Dated: 12.08.2011 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi
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