Delhi District Court
State vs Ajay Kr @Sunda on 20 November, 2023
IN THE COURT OF SH. AASHISH GUPTA, ACMM
NORTH EAST KARKARDOOMA COURTS, DELHI
CR Case No: 560/2019
STATE Vs. AJAY KR @SUNDA
FIR No: 164 /2012
PS: Sonia Vihar
1. FIR No. of the case : 164/2012
2. Date of commission of offence : 11.11.2012
3. Date of institution of the case : 07.03.2019
4. Name of the complainant/informant: Insp. Vijay Nagar
5. Name of accused & address : 1)Ajay Kumar @ Sunda
S/o Ram Kumar
R/o VPO Rohat Tehsil,
Sonepat Distt., Sonepat,
Haryana
2)Ashok Kumar
S/o Raj Singh
R/o VPO Rohat Tehsil,
Sonepat Distt., Sonepat,
Haryana
6. Offence charged with : 419/420/120 B/34 IPC
7. Plea of the accused : Pleaded not guilty. .
8. Date of final arguments : 01.11.2023
9. Final Order : Acquitted
10. Date of Judgement : 20.11.2023
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 1/12
JUDGEMENT:
1. It is the case of the prosecution herein that both accused namely Ashok Kumar and Ajay Kumar had entered into a criminal conspiracy with each other. Prosecution has claimed that in furtherance to the said conspiracy, on 11.11.2012 at 10:00 AM at Sector-1, Sub-Sector-IV, PTS Ground 'E', Wazirabad, Delhi within the jurisdiction of PS Sonia Vihar, accused Ajay Kumar impersonated himself as Ashok Kumar and appeared in his place in the written examination of recruitment of Constable Male Driver in Delhi Police, having admit card in the name of Ashok Kumar. Accused Ajay Kumar was apprehended at the spot and later accused Ashok Kumar was also arrested. Thus, both accused, as per prosecution, have committed offences punishable U/s 419/420/34 IPC. Both the accused were charge- sheeted for the said offence.
2. Both accused appeared before this Court and after compliance under Section 207 Cr.P.C, charge U/s 420/120B/34 IPC was framed qua accused Ashok Kumar and charge U/s 419/420/120B/34 IPC was framed qua accused Ajay Kumar @ Sunda. Both accused pleaded not guilty and claimed trial.
3. To discharge its onus, prosecution examined six witnesses. A brief summary of prosecution evidence is as follows: -
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 2/12 Sr. Witness name Witness Remarks No. no.
1 ASI Ramesh PW-1 He claimed that on 11.11.2012 he was Singh (now performing his duty as Invigilator in the ASI) examination of Ct. Male (Driver) in Delhi Police at Sector 1, Sub Sector 4, Room No. 34 for Row No. 34. He claimed that during checking he found that one person sitting for roll No. 813364 having admit card in the name of Ashok Kumar had not done his biometric. He claimed that on suspicion, he informed the same to Insp. Vijay Nagar and handed over the suspect to him. He claimed that biometric of the said candidate was got done and it was revealed that he was not the person for whom he was trying to give the examination and on interrogation he disclosed his name as Ajay Kumar and told that he was trying to give the said exam on behalf of his brother Ashok Kumar. This witness correctly identified accused Ajay Kumar in the court.
2. HC Pravesh PW-2 He claimed that as per their record, the Rathi, biometric pertaining to the present case is Recruitment not in their office and the same can be Cell, availed from iBilt Techonologies Pvt. Ltd., Kingsway New Delhi.
Camp.
3. Insp. Vijay PW-3 He is complainant in this case. He claimed Nagar (now that on 11.11.2012, ASI Ramesh Singh was AC) on duty at Row No. 34 under his supervision. He claimed that on the said date ASI Ramesh Singh had produced one candidate before him. He claimed that State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 3/12 biometric of the said candidate was got done and it was revealed that he was not the same person for whom he was trying to give the exam and his real name was Ajay @ Sunda. He identified accused Ajay in the Court.
4. Mr. Krishan PW-4 He claimed during that he was on biometric Kant Sharma, checking duty at PTS Wazirabad. He Biometric claimed during cross-examination by Ld. expert. APP that the finger print report shown to him Ex. PW3/A pertains to one Ashok Kumar.
5. HC Praveen PW-5 He is 1st IO of this case. He claimed that on Kumar (now 11.11.2012 he was on duty at the entry point ASI) of examination centre at PTS Wazirabad.
He claimed that at around 10 AM he was called by Insp. Vijay Nagar at the Ground, Sector-1, Sub-Sector-4 where he produced accused Sandeep alongwith admit card and sheet number and informed that he was appearing on behalf of another candidate namely Ashok Kumar. He claimed that accused Sandeep disclosed his name as Ajay @ Sunda. He did further investigation of the case. He correctly identified the accused in the Court.
6. SI Suresh PW-6 He claimed that on 27.06.2017, Bhatia investigation of the case was marked to him. He went to Sonepat, Haryana in search of co-accused Ashok. He served notice U/s 41A Cr.P.C upon accused Ashok and recorded his disclosure statement.
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 4/12
4. Prosecution has also relied upon the following documents:-
Sr. No. Items/documents Exhibits 1 Statement of complainant. Ex. PW3/A 2. Arrest memo of accused Ajay. Ex. PW3/B 3 Seizure memo of admit card from accused Ajay. Ex. PW3/C 4 Endorsement on rukka. Ex. PW5/A 5. Personal search memo of accused Ajay. Ex. PW5/B 6. Site plan of the spot. Ex. PW5/C 7. Personal bond of accused Ajay. Ex. PW5/D
8. Notice U/s 41 A Cr.P.C served upon accused Ex. PW6/A Ashok 9 Disclosure statement of accused Ashok. Ex. PW6/B
10. Pabandinama of accused Ashok. Ex. PW6/D 11 Copy of FIR (without contents) (admitted by Ex. A1 accused).
12. DD No. 18 dated 01.02.2018 (admitted by Ex. A2 accused).
5. Thereafter, prosecution evidence was closed.
6. Accused were examined u/s 313 Cr.P.C and they had denied all the allegations and submitted that they have been falsely implicated in the present case. Accused have not led any evidence in their defence.
7. I have heard final arguments and have perused the record.
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 5/12
8. In this case prosecution alleges that accused Ashok Kumar was slated to appear in Delhi Police written examination on 11/11/2012 and he conspired with his brother Ajay Kumar@ Sunda whereby he caused Ajay Kumar to impersonate as Ashok and thereafter entered the examination center at PTS Wazirabad Delhi. Thereafter, Ashok Kumar gained entry into the examination centre and he, as per prosecution, took the seat allotted to accused Ashok. The invigilator during his round noted that the candidate occupying the seat allotted to accused Ashok has not got his biometric examination done. This caused the invigilator to suspect the candidate present at the seat allotted to accused Ashok and thereafter, it was found that accused Ajay was impersonating as accused Ashok.
9. As per prosecution, the said impersonation was established after the biometric of accused Ajay was got done and it was found that biometric of accused Ajay is different from that of accused Ashok (which was stored in the database of the examining authority). This led to the arrest of both the accused and eventually the present case.
10. In order to prove the said allegations, prosecution has produced the concerned invigilator/SI Ramesh Singh/PW-1, his superior PW-3/Vijay Nagar and PW-4/Kishan Kant Sharma (official from the biometric service provider).
11. As per the prosecution's case PW-1/Ramesh Singh was the State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 6/12 invigilator who had initially caught accused Ajay and reported the incident to his superior Vijay Nagar. They both then got the biometric done of accused Ajay to find out as to whether the said candidate was actually the candidate who was allotted the seat of accused Ashok or not. To prove the said process, prosecution produced PW-4/ Shri Krishna Kant Sharma.
12. It is the argument of Ld.APP for the State that considering the evidence of the said witnesses, this is a fit case for convicting both the accused for the offences they are charged with. Per Contra, Counsel for the accused persons argued that the evidence of prosecution is at best sketchy and does not prove the allegations against his client beyond reasonable doubt. He further argued that if the allegations of the prosecution are not proved beyond reasonable doubt, his clients should be acquitted.
13. I have given thoughtful consideration to the rival arguments of the parties and have also gone through the record. At the outset, it may be noted that as per the prosecution, examination for the post of Driver in Delhi Police was being held on 11/11/2012 and both PW-1 SI Ramesh Singh and PW-3 ACP Vijay Nagar were on examination duty on the said date at ground number 'E' PTS Wazirabad. Now, it is but obvious that the factum of the exam slated for 11.11.2012 and allotment of duties as invigilators for the said exam could be shown by the prosecution through documentary evidence.
But, it is surprising that no documentary evidence has been brought on record by the prosecution to show as to whether any such examination was State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 7/12 being held on the said date or either of the said witness were given examination duty at the said date, time and place as alleged by the prosecution. If official examination was being conducted on 11/11/2012 at ground E PTS Wazirabad and both PW-1 and PW-3 were assigned any examination duty, there must have been some documentary trail qua the said fact. Before this court can believe the fact that PW-1 or PW-3 had caught accused Ajay while impersonating as accused Ashok, it was necessary for the prosecution to show from the evidence that the said witness i.e PW-1 and PW-3 were actually on examination duty on that day. Admittedly, no roster of duty of either of the said witnesses have been placed on record by the prosecution. If that be the case, huge lacuna in the prosecution story is left which creates some doubt on the manner in which the investigation was done by the IO. No answer is forthcoming from the State as to why did the IO not collect any document qua examination or with respect to the duties assigned to PW-1 and PW-3.
14. Again, as per record, Accused Ashok was slated to appear in the aforesaid examination and he was allotted a seat in row number 34. No record has been collected by the IO to show whether accused Ashok was actually slated to appear in the exam in question or not; or whether the said Ashok was allotted any seat in any row in the said exam; or whether any row number was actually issued to Ashok by the examining authority. This fact could have been easily proved on record by the prosecution if the IO had bothered to collect the relevant documents from the examining authority.
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 8/12
15. Prosecution wants to simply rely upon one roll number that is purportedly seized from accused Ajay to believe that the said row number was actually issued to accused Ashok and no further. In my opinion, only if some documents were placed on record by the prosecution to show that Ashok was actually slated to appear in exam (by bringing on record the relevant rolls qua the exam) or by producing the relevant papers to show as to what role number was actually issued to accused Ashok or by calling the relevant witnesses qua the candidature of Ashok, can it be said that Ashok was actually the real candidate in the exam. Without any evidence of the aforesaid nature, only because one roll number is placed on record by the prosecution, it cannot be presumed that accused Ashok was slated to appear in the examination.
16. Further still, as per the prosecution's case accused Ashok was allotted roll number 813364 in this case. But as per the rukka placed on record, IO has recorded that he was handed over roll number 812364 by the complainant when he had gone to the examination centre. It is possible that while recording the rukka wrong roll number was recorded by the IO. But, if the IO recorded a wrong roll number, this fact should have been stated by him either in his case diary and/or in charge sheet and/or in the evidence led before this court. This fact coupled with the fact that no record was produced before this court qua the allotment of roll number by the examining authority again creates a doubt as to which roll number was actually issued to accused State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 9/12 Ashok (if at all) or whether the same was 813364 or 812364.
17. Even if I overlook the aforesaid discrepancies in the investigation, still prosecution in order to prove its case was required to show that accused Ajay had appeared in place of accused Ashok for the exam in question. But, when PW 1 stepped in the witness box before this court he identified accused Ashok as the person who had appeared in the exam in question and also as the person who was caught by him. Now if accused Ashok is the person who was caught by PW-1 SI Ramesh, prosecution has no case before this court because as per prosecution itself Ashok was the person who was to appear in exam in question. Now, if Ashok himself appeared in the examination, no case of any impersonation and/or cheating is made out.
18. It was argued by the Ld. APP for the State that due to lapse of time, possibly the witness PW-1 misidentified Ajay. I am not inclined to accept the said argument as it was for the witness to claim that he cannot identify the accused caught by him due to lapse of time. Once the witness himself does not claim the said fact, this court cannot, on the basis of the argument of the Ld. APP, presume the existence of the said fact. Thus, the star witness of the prosecution has actually claimed before this court that accused Ashok was the person who had appeared in the examination. If that be taken as correct, the entire prosecution case falls.
State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 10/12
19. Further still, as per the prosecution's story, if accused Ajay was caught by the invigilator, his identity was sought to be matched by the biometric data of the examining authority. It appears that the examining authority had captured biometric data/ fingerprints of the candidate Ashok and they compared the biometric data of Ajay with Ashok. But surprisingly, the said report which established that Ajay was impersonating as Ashok has not been placed on record by the prosecution. This was the most crucial piece of evidence which established before the examining authority that accused Ajay was actually impersonating as Ashok. There is no reason forthcoming before this court as to why the said report has not been placed on record to show such exercise was carried out by the authorities. The said report would have had the biometric data of Ashok and that of Ajay with a noting that the said two biometrics/ fingerprints belongs to two separate individual and they did not match. This would have given credence to the prosecution's case that Ajay actually gained entry into the examination centre as Ashok and thereafter he was caught by the concerned authority while impersonating as Ashok. In the absence of the said evidence, the prosecution's case becomes extremely thin and does not inspire confidence.
20. Yet again, as per the prosecution the site plan of the place of incident was prepared by the IO at the instance of the concerned invigilator but the same does not bear any signatures of this said invigilator. Again, statement of no public witness is there to the recovery of the roll number from Ajay purportedly issued to Ashok. This again leaves holes in the State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 11/12 prosecution's story which are difficult to fill and raises a possibility of false implication of the accused persons.
21. Thus, if I take a holistic view of the entire evidence lead before this court, there are gapping holes in the investigation of this case and the story of the prosecution is riddled with various lacunas discussed above and does not inspire confidence. Prosecution has failed to prove on record that Ashok was actually the candidate who was to appear for the examination in question or in his place Ajay was caught. They have also failed to bring on record the bio-metric report generated by the examining authorities which established before the authorities that Ajay was impersonating as Ashok. These are the most crucial facts which were required to be proved before the court for the prosecution's story to stand. In the absence of the same, the entire prosecution's case falls and therefore this is a fit case for acquitting both the accused herein. The entire prosecution case has crumbled on scrutiny.
22. Accordingly, accused Ajay Kumar @Sunna stands acquitted for offences made punishable u/s 419/420/120B/34 IPC. Accused Ashok Kumar stands acquitted for offences made punishable u/s 420/120B/34 IPC.
Digitally signed by AASHISHAASHISH GUPTA GUPTA Date:
2023.11.20 17:00:25 +0530 ANNOUNCED IN OPEN COURT AASHISH GUPTA On 20.11.2023 ACMM (NORTH EAST) KARKARDOOMA COURTS/DELHI State Vs. Ajay Kr. @ Sunda FIR no. 164/2012 Sonia Vihar Page no. 12/12