Delhi District Court
State vs . Subhani Jalali Etc. Fir No.144/02 on 16 October, 2019
State vs. Subhani Jalali etc. FIR no.144/02
1
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE:
ROHINI COURTS NORTH DISTRICT, DELHI
Presided Over by : GAGANDEEP SINGH
State Vs. Subhani Jalali etc. Date of Institution 28.08.2002
FIR No. 144/02 Judgment Reserved on 11.09.2019
PS Rohini(Crime Branch) Date of Judgment 16.10.2019
Under 409/420/120B IPC
Section
JUDGMENT
a) New Regn. No. of the case 5288461/16
b) Date of offence 13.03.2002
c) Name of the complainant Sh.B.R. Sharma, Secretary, CBSE, S/o Late
Sh. Harbhagwan Das Sharma, R/o H.No. A
138, Suraj Mal Vihar, Delhi110092,
d) Name & address of the accused (1) Subhani Jalali, W/o Sh. M.K. Kaul, R/o
H.No.F3/79, Sector16, Rohini, Delhi.
(2) Sucheta Katyal, W/o Sh. Yash Katyal,
R/o H.No.D15/258/259, Sector3, Rohini,
Delhi.
(3) Ms. Amita Goyal, D/o Sh. R.C. Goyal,
R/o C6/188, Keshav Puram, New Delhi,
e) The offence complained of 409/420/120B IPC
f) Plea of accused Pleaded not guilty
g) The final order Accused Sucheta Katyal and Amita Goyal
acquitted.
Accused Subhani Jalali convicted.
State vs. Subhani Jalali etc. FIR no.144/02
2
a) New Regn. No. of the case 5288461/16
h) Date of order 16.10.2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The FIR in question was got registered on the complaint/statement of Sh. B.R. Sharma, the then Secretary, CBSE, Delhi. It was reported that CBSE Headquarters had received some source information regarding question papers of Class X CBSE examination being opened and leaked much before the prescribed time. The said information was concerning Centre No.2423 i.e. Himalaya Sr. Sec. School, Sector7, Rohini, Delhi. Thereafter, they contacted EOW, Crime Branch on 11.03.2002 and chalked out a program of raid. Accordingly, on 13.03.2002, he along with Sh. Shashi Bhushan, Joint Secretary, CBSE, Insp. Sanjeev Tyagi, SI V.S. Dalal and Ct. Abdul Gafar assembled outside the said school. They entered the school at about 9.40 a.m. and straightway went to Examination Room. It was found that Mrs. Subhani Jalali, Centre Supdt. along with other staff was present. On the table, it was found that one packet of question papers of Series No.RLS/1, Series Code No.30/1/1/2/3, Subject Mathematics was found open. The question papers were scattered on the table. As per the guidelines of CBSE, the Centre Supdts. were under the obligation to open the question papers only fifteen minutes prior to the scheduled date and time of examination. The said packet was to be opened in the presence of four Assistant Superintendents who were to attest and State vs. Subhani Jalali etc. FIR no.144/02 3 sign the same. In the instant case, the Centre Superintendent failed to obey the said regulation and no memo was found prepared. The Class X examination "Maths" question paper booklet was found open at least 50 minutes before the commencement of the examination.
2. In the meantime, the flying squad of NorthWest District comprising of Sh. Kuldeep Rai, Education Officer, Department of Education, Mrs. Kamlesh Chauhan, Mrs. Jaswinder Kaur and Sh. G.P. Singh also reached at the spot. All of them collectively counted question papers and only 43 question papers were found in the said packet out of 50 question papers. The seven question papers were found missing and Mrs. Subhani Jalali became nervous and claimed that Mrs. Amita Goyal was seeing the question papers. The said missing questions papers might be with her. They started searching the missing question papers in the room as well as in the library in the presence of Mrs. Subhani Jalali. During the search, they found seven photocopies of the above said question papers in the Ladies purse kept near photocopy machine in the library. On enquiry, it was found that the said purse belonged to Mrs. Sucheta Katyal, also a teacher of the said school. Twelve more photocopies of the said series question papers, which were found missing, were hidden beneath the books on the table. All the said photocopies along with the ladies purse including its items were seized as per seizure memo. It was further alleged that from the said facts, the accused Subhani Jalali, Sucheta Katyal and Amita Goyal State vs. Subhani Jalali etc. FIR no.144/02 4 along with others entered into a criminal conspiracy by violating all set procedure, norms and rules of CBSE to leak the paper. They have, thus, cheated the CBSE & Education Department, and hence, action may be taken. After recording of the statement of the complainant, the photocopies of the question papers and the ladies purse including its items were seized. The said pullandas were sealed with the seal of VSD. Subsequently, the search was carried out consequent to the disclosure statements of accused Subhani Jalali and seven original papers, which were missing, were found in khaki envelope from heap of books kept in the library of the school. The said missing question papers were initialed by the members of raiding team and put up into pullanda and sealed with the seal of VSD. All the three accused i.e. Subhani Jalali, Principal of the School, Amita Goyal and Sucheta Katyal were arrested. After completion of investigation, the chargesheet was filed against the said three accused persons.
3. The cognizance upon the said final report was taken by the Ld. Predecessor on 28.08.2002 and all the accused persons were summoned to face the trial. The charge for the offences u/s 420/120B IPC was framed against the accused persons on 29.03.2003 Subsequently, the said order was challenged by accused Amita Goyal which was set aside. The charge was again framed against her on 13.04.2007 for offence u/s 120B/420 IPC. All accused persons pleaded not guilty and claimed trial.
4. The prosecution in order to prove their case against all the said three accused State vs. Subhani Jalali etc. FIR no.144/02 5 persons has examined fourteen witnesses in all.
5. PW1 ASI Sushila Lakra is the duty officer who proved the registration of FIR Ex.PW1/A.
6. PW2 Kamlesh Chauhan was the member of the raiding party of Directorate of Education. She deposed that on 13.03.2002, she along with other members of the raiding party of flying squad of Directorate of Education, namely, G.P. Singh, Kuldeep Rai, Mrs. Jaswinder Kaur went to Himalaya Sr. Sec. School at about 9.45 a.m. They found B.R. Sharma, Secretary CBSE and Shashi Bhushan, Joint Secretary, CBSE along with Crime Branch officials present in the Examination Room. The accused Subhani Jalali was also present along with other staff. On the table, in front of accused Subhani Jalali, one packet of question paper of Maths was found lying and question papers were scattered. Another envelope No.3/6 was also lying. There were clear instructions issued by CBSE to all the Centre Supdts. to open question paper packets fifteen minutes before the scheduled time of examination in the presence of four Assistant Supdts. The said open question papers were counted. It was found having 43 question papers out of prescribed 50 question papers as mentioned on the packet. None of the guidelines of the CBSE as to the manner of opening of question paper was followed by Centre Supdt. i.e. accused Subhani Jalali. She was questioned and she claimed that accused Amita Goyal was seeing the question papers and she might have taken the seven missing question papers. Another packet State vs. Subhani Jalali etc. FIR no.144/02 6 bearing No.2/6 was found sealed and not opened. But, it was having the signatures of witnesses and time was mentioned 10.10 a.m. despite it only being 9.45 a.m. Thereafter, they searched the missing question papers and found seven photocopies of page no.2 & 4 of the missing question papers in a ladies purse kept near the photocopy machine in the library. The said purse was of accused Sucheta Katyal. Some other articles were also found in the said purse. Twelve other photocopies of page no.2, 3, 4, 5, 6, 7, 8 of question paper bearing series no.30/1/2 and page no.5, 6, 7, 8 of series No.30/1/1 were found hidden beneath the books kept on the table near the window in the library. All the said items were handed over by Secretary Sh. B.R. Sharma to the IO which were seized by the IO after sealing the same with the seal of VSD vide seizure memos Ex.PW2/A and Ex.PW2/B. One photocopier machine was also seized vide seizure memo Ex.PW2/B. All the recovered photocopies were signed by them. The accused Subhani Jalali was arrested and her personal search was carried out vide memo Ex.PW2/C. Her disclosure statement was recorded vide Ex.PW2/D. On her pointing out, seven missing original question papers were found lying beneath the books on the table of the library. All the seven recovered question papers were signed by them and taken into possession vide seizure memo Ex.PW2/E. Accused Sucheta Katyal and Amita Goyal were also arrested in the present matter. She identified the said photocopier machine as Ex.P1. The seven copies of the question papers were identified as Ex.P2; twelve photocopies of the State vs. Subhani Jalali etc. FIR no.144/02 7 question papers were identified along with purse of accused Sucheta Katyal as Ex.P3, Ex.P4 & Ex.P7 respectively. The envelope No.2/6 which was sealed and not opened, but having the time and signature of four Supdts. as Ex.P6. The 43 question papers recovered from the first packet which was opened as Ex.P10.
7. PW3 Ct. Abdul Gaffar deposed that on 13.03.2002, he joined the investigation with IO Virender Singh Dalal and had received the rukka prepared by IO. He got the case registered at PS Rohini and returned back Himalaya Sr. Sec. School, Rohini where he handed over the rukka and copy of FIR to SI Virender Singh.
8. PW4 HC Kamla also joined the investigation with IO SI Virender Singh on 13.03.2002 and she conducted the personal search of accused Sucheta Katyal, Amita Goyal and Subhani vide personal search memos Ex.PW2/C, Ex.PW2/F and Ex.PW2/G.
9. PW5 B.R. Sharma, the then Secretary, CBSE/complainant in the present matter deposed that on 11.03.2002, they had received an information about the leakage of question papers of CBSE examination of Class X at Rohini Centre in Himalaya Sr. Sec. School, Sector7, Rohini, Delhi. Thereafter, on the directions of the Chairman, on 13.03.2002, he along with Sh. Shashi Bhushan, Joint Secretary, CBSE along with Crime Branch Officers of Delhi Police assembled and conducted a raid. He along with Shashi Bhushan arrived outside the examination Centre where they met Crime Branch Officers, namely, SI Sanjeev Tyagi, Mr. Dalal and Ct. Abdul Gaffar. They all entered Room State vs. Subhani Jalali etc. FIR no.144/02 8 No.22 of the Examination Centre at 9.40 a.m. where they met accused Subhani Jalali along with two other teachers. On the table, it was found that one packet of question papers was lying opened i.e. about 50 minutes prior to the scheduled time, which was supposed to be opened only 15 minutes prior to the scheduled time of examination. The question papers packet which was lying open was having confidential No.30/1/1. As per the instructions of the Board, the packet of question papers is supposed to bear signatures of four invigilators prior to its opening. The said signatures are taken as token of verification of the seal on the packet. At about 9.45 a.m., a raiding team from Delhi Administratin (NorthWest District) also arrived at the Centre which was led by Sh. Kuldeep Rai, Education Officer and Smt. Kamlesh Chauhan. The team was also having Mrs. Jaswinder Kaur and Sh. G.P. Singh as its members. All the raiding team members and the members of Delhi Administration team counted the question papers of packet which was lying opened. It was found that the packet was having seven papers less than as required. There were 43 question papers instead of 50. The Centre Supdt. was confronted about the irregularly but she became nervous and claimed that Mrs. Amita Goyal was seeing the question papers and the missing questions papers might be with her. They started searching for the missing question papers in the room as well as in the adjoining library which was having a photostat machine and one ladies purse was lying by its side. Seven leafs of papers having photocopies of two pages of the question papers State vs. Subhani Jalali etc. FIR no.144/02 9 (Mathematics) were lying in the purse and the purse was in open condition. During the search, they found that twelve photocopies of the relevant question paper lying beneath the books in the library. On enquiry, it was found that the said purse belonged to Mrs. Sucheta Katyal. All the said photocopies along with the ladies purse including its items were seized as per seizure memo Ex.PW2/A after sealing the same. Thereafter, he gave complaint Ex.PW5/A. He also identified the photocopy machine Ex.P1, seven question papers Ex.P2, ladies purse and twelve photocopies of question papers along with the items of purse vide Ex.P3, Ex.P4 and Ex.P5, six packets of question papers of mathematics Ex.P6, Ex.P7, Ex.P8, Ex.P9, Forty three question papers Ex.P10 and another packet vide Ex.P11.
10. PW6 Smt. Jasvinder Kaur is also the member of the flying squad who had raided the Himalaya Public School on 13.03.2002 along with PW2 Kamlesh Chauhan, G.P. Singh and Kuldeep Rai. She deposed on the lines of statements given by PW2 Kamlesh Chauhan though her statement is at variance with respect to the presence of accused Amita Goyal, Sucheta Katyal and the manner of their arrest.
11. PW7 Kuldeep Rai is the Education Officer, Directorate of Education who was leading the said raiding party along with PW Kamlesh Chauhan, Jaswinder Kaur and G.P. Singh. He too deposed on the lines of statement of PW2 Kamlesh Chauhan and PW6 Jaswinder Kaur.
State vs. Subhani Jalali etc. FIR no.144/02 10
12. PW8 Shashi Bhushan is the Joint Secretary, CBSE who was part of the proceedings right from the beginning i.e. 11.03.2002. He deposed that on 11.03.2002, they had received the information regarding leakage of question paper of Class X CBSE Examination at Himalaya Se. Sec. School. The Maths exam of Class X, CBSE was scheduled for 13.03.2002. On the instruction of their Chairman, who was head of CBSE, he along with B.R. Sharma, Secretary, CBSE reached at the Centre where the officials of Crime Branch, namely, SI Dalal, SI Sanjeev Tyagi and other officials met them. They found one packet of question paper was lying open which was checked. It was having 43 question papers instead of 50. As per CBSE guidelines, the packets of question papers are supposed to be opened fifteen minutes prior to the scheduled time of examination. They enquired from accused Subhani Jalali in this regard as well as seven missing question papers who claimed that accused Amita Goyal had taken the said question papers. Thereafter, they went to the adjoining room where accused Amita Goyal was found present. In the meantime, the raiding team of Delhi Administration comprising of Kuldeep Rai, Education Officer and Kamlesh Chauhan and few other officials also came at the spot. The photocopy machine at the library was found to be in open condition and they found one lady's purse on the table. Seven photocopies of the missing Maths question papers were found in the purse belonging to accused Sucheta Katyal. Thereafter, accused Subhani Jalali pointed out towards the heap of books kept on the State vs. Subhani Jalali etc. FIR no.144/02 11 table of library which were recovered along with some photocopies. The said case property was seized vide seizure memo Ex.PW2/A, the photocopies along with the lady's purse was seized vide seizure memo Ex.PW2/B. His statement was also recorded by the IO.
13. PW9 J.L. Pahwa is the then Manager of Canara Bank, Azadpur, Delhi. He received the notice from Crime Branch and in reply to the said notice, he informed that as per record, Sh. R.P. Kaushik, Desk Officer from the CBSE received the question papers from the bank on that day. His reply is Ex.PW7/DB. He also proved Icard of the concerned official as well as the acknowledgement of question papers vide Ex.PW9/B and Ex.PW9/C respectively.
14. PW10 R.P. Kaushik, the Desk Officer of CBSE who deposed that during course of the duty, he was appointed to collect the question papers from Canara Bank and to deliver the key person appointed by CBSE. He collected the said packets of papers on 13.03.2002 which were total seven in number at about 8.50 p.m.(inadvertently mentioned) and delivered to key person of CBSE. He claimed that the said key person was probably one Shanta Rani.
15. PW11 Satbir Singh was working as Peon in Himalaya Public School and deposed that on 13.03.2002 on the instructions of accused Subhani Jalali, he went to Canara Bank, Azadpur. There, one CBSE official handed over sealed question papers to one lady and State vs. Subhani Jalali etc. FIR no.144/02 12 he accompanied that lady to school. They reached the school at about 10.00 a.m. and handed over the sealed parcels to Principal Subhani Jalali.
16. PW12 Sandhya Gandhi was the Librarian at Himalaya Public School and deposed that on the day of said raid, she was present in the library. She found the teachers working there to be terrified. She came outside the library and saw some persons entering there school. The said persons who raided the school entered into the library and locked the door. After some time, they opened it and took outside a ladies purse and made enquiries from her. She denied the entire case of prosecution regarding recovery of photocopies or original missing seven Maths question papers.
17. PW13 G.P. Singh is the retired Principal, Department of Education who had accompanied PW Jaswinder Kaur, Kamlesh Chauhan and Education Officer Kuldeep Rai to Himalaya Public School. He too deposed on the lines of statement given by all the aforesaid witnesses. He though in the cross examination by the Ld. APP exonerated the accused persons and failed to identify them.
18. PW14 (inadvertently referred as PW13) Insp. Virender Dalal is the Investigating Officer. He deposed that on11.03.2002, he went to CBSE Headquarter, Preet Vihar on the direction of senior officers where they met Chairman, Secretary Mr. B.R. Sharma, Joint Secretary Mr. Shashi Bhushan and Controller of Examination. They shared the information regrading the leakage of examination papers of CBSE of Class X. Therefore, State vs. Subhani Jalali etc. FIR no.144/02 13 it was decided that the raid will be conducted on 13.03.2002. He along with other staff reached in front of Himalaya Se. Sec. School, Sector7, Rohini at about 9.30 a.m. where they met Mr. B.R. Sharma, Secretary, CBSE alongwith Mr. Shashi Bhushan, Joint Secretary, CBSE. At about 9.40 a.m., they all reached in examination centre office where they found accused Subhani Jalali along with 23 teachers. They found one envelope having number 1/6 to be opened and unsealed. The examination was to take place at 10.30 a.m. and as per the CBSE guidelines, th envelopes were to be opened fifteen minutes prior to the start of examination. The said opening was further required to be witnessed by four Assistant Superintendents and the time of opening was also required to be put on the envelope. Another envelope bearing No.2/6 was found to be sealed but signed by four persons and bearing time as 10.10 a.m. In the meantime, at 9.45 a.m., the flying squad members of Delhi Administration, namely, Kr. Kuldeep Rai, Mr. G.P. Singh, Ms. Kamlesh Chauhan and Ms. Jaswinder Kaur also reached at the spot. The Secretary Mr. B.R. Sharma checked the envelope which was found having 43 question papers instead of 50. The accused Subhani Jalali was asked about the whereabouts of the remaining question papers but she could not give any satisfactory answer. She claimed that accused Amita Goyal might have taken the missing seven question papers. Thereafter, they checked the school library and found one ladies purse which was having seven photocopies of the missing question papers as well as personal items of accused State vs. Subhani Jalali etc. FIR no.144/02 14 Sucheta Katyal. They also found twelve photocopies of question papers of the same series lying on the table in some books. The Secretary, CBSE Mr. B.R. Sharma handed over to him six envelopes containing question papers with serial No.1/6 containing 43 question papers and also with serial Nos. 2/6, 3/6, 4/6, 5/6 and 6/6. He put all the six envelopes in a white cloth and sealed with the seal of VSD and seized the same vide seizure memo Ex.PW2/A. Thereafter, he put the twelve pages in one polythene and kept it in one white pullanda along with the recovered ladies purse, seven photocopies of question papers, sealed with the seal of VSD. It was seized along with photocopier machine vide seizure memo Ex.PW2/B. The accused Subhani Jalali refused to sign the seizure memos. Thereafter, Mr. B.R. Sharma gave the complaint in writing as Ex.PW5/A. Thereafter, he prepared rukka Ex.PW13/A, FIR was got registered through Ct. Abdul Gaffar at PS Rohini. The accused Subhani Jalali was thereafter arrested vide arrest memo Ex.PW2/H and her disclosure statement Ex.PW2/D was got recorded. The accused Subhani Jalali called the other accused Amita Goyal and Sucheta Katyal who were present in the school premises. Accused Subhani Jalali thereafter took out the Khaki envelope kept under the books of library. The Secretary, CBSE checked the envelope and seven question papers were found which were missing from packet bearing serial no.1/6. Thereafter, he put the said question papers in the envelope and sealed with the seal of VSD. He arrested the accused Amita Goyal and Sucheta Katyal vide arrest memos Ex.PW2/J and Ex.PW2/K. State vs. Subhani Jalali etc. FIR no.144/02 15 Thereafter, they returned to their office and recorded statement of witnesses and deposited the case property in the malkhana of PS Rohini. Thereafter, he served notice u/s 91 Cr.PC upon the Chief Manager, Canara Bank, Azadpur and received their reply vide Ex.PW9/B and Ex.PW9/C respectively. Thereafter, he prepared the chargesheet and filed before the Court.
19. After completion of the prosecution evidence, the statement of all accused persons were recorded u/s 313 Cr.PC. The accused Sucheta Katyal pleaded innocence and false implication. She further claimed that she was working in that school for the last two years and the allegations appears to be due to tussle between the school and CBSE authorities. She was not at all interested in the matter and has been got falsely implicated. She was even on short leave on that day. Accused Subhani Jalali, Centre Supdt. also claimed false implication. She further pleaded that she was working in the said school for the last 1112 years and no such incident occurred. She also claimed that the allegations appears to be due to tussle between the school and CBSE authorities. Lastly, accused Amita Goyal too pleaded false implication and further claimed that police officials deposed against her in connivance with CBSE officials. No defence evidence was led on behalf of the either of the accused.
20. I have heard the Ld. APP and Ld. Counsels for the accused persons and gone through the record.
State vs. Subhani Jalali etc. FIR no.144/02 16
21. It was argued on behalf of the Ld. APP for the State that the testimonies of prosecution witnesses more specifically complainant PW5 B.R. Sharma, Joint Secretary, CBSE, PW8 Shashi Bhushan and other members of the raiding party of Department of Education, Delhi govt. prove their case of the leakage of question paper for monetary gains. Hence, it was argued that all the accused persons deserves to be convicted for that offence. Per contra, the Ld. Counsel for the accused Subhani Jalali argued that the entire investigation in the present matter is biased, faulty and full of loopholes. As per the record, the FIR was got recorded in PS Rohini but PW1 ASI Sushila Lakra, the duty officer claimed that it was registered at PS Janak Puri. It was also argued that the PW13 G.P. Singh in the cross examination admitted to the fact that the CBSE officials had infact opened the sealed question paper envelope and handed over to accused Subhani Jalali. None of the said members of the raiding party put the time over the sealed envelopes as alleged by them. It was also argued that the version given by PW11 and PW12 completely goes against the prosecution and their versions strikes at the very root of the case of the prosecution. It was also argued that the disclosure statement and consequent recovery is also doubtful as some of the recovery witnesses claimed that recovery of seven original question papers was already done prior to the FIR. No link evidence in the form of Register No.19 has been proved. Lastly, it was argued that the allegations even if proved on record does not makes out the case u/s 420 IPC as there is no evidence State vs. Subhani Jalali etc. FIR no.144/02 17 wrongful gain or loss to either of the parties.
22. Lastly, Ld. Counsel for other two accused also carried forward the arguments on behalf of accused Subhani Jalali and claimed that the allegations even if taken to be true does not makes out it a case of cheating u/s 420 IPC. There is no investigation or evidence on record regarding papers being sold for monetary gains or paper having left the premises of the school. It was further argued that the students of Himalaya Public School were giving paper at some other school and if the paper had not gone outside that, there was no question of any gain to the accused persons or the management of school.
23. Admitted Facts:
In the present case in hand, the case of the prosecution initiated consequent to the recording of first information regarding leakage of the question papers of CBSE Class X Examination vide DD No.8 dated 11.03.2002 Mark PW13/D1. The said DD entry was recorded on 11.03.2002 wherein it was claimed that the secret information was received at about 1.30 p.m. and it was alleged that on 13.03.2002, there will be a leakage of question paper. Further, it will be done in close room of the examination centre. The said information was acted upon by the investigating authority in collusion with CBSE officials, namely, Secretary Sh. B.R. Sharma and others. Thereafter, the raid was conducted by them along with other members of the flying squad of Department of Education, Delhi Govt. where they found the question paper of Class X Maths State vs. Subhani Jalali etc. FIR no.144/02 18 examination to be opened at least fifty minutes prior to the stipulated time of examination. As per the guidelines of CBSE placed on record, i.e., Guidelines For Centre Superintendents and Assistant Superintendents, 2002, it was the duty of the Centre Supdt. to ensure that the question papers envelopes are opened only fifteen minutes prior to the start of the examination. Further, the said opening has to be witnessed by at least four Assistant Superintendents who are supposed to sign the envelope and also check the seals and count the number of copies etc. as per rule 5.1. The said procedure was claimed to be not followed, and hence, the present case.
23.1 It is an admitted fact that on 13.03.2002, the CBSE Class X Maths paper was held and the timing of the said paper was from 10.30 a.m. It is also not disputed by either of the accused that accused Subhani Jalali being Principal of Himalaya Public School, Sector7, Rohini was the Centre Superintendent for conduct of CBSE Class X examination. Thus, she was duty bound to obey the guidelines of CBSE of 2002 more specifically under Rule 4.1. It is also not in dispute that two other accused, namely, Sucheta Katyal and Amita Goyal were also working at the said school only but it is disputed as to whether they were present in the school at that point of time or not or whether were assigned with the examination duty or not. Lastly, it is also not a disputed fact that the raid was indeed conducted on that day at Himalaya Public School, Sector7, Rohini by CBSE officials, members of raiding party of Department of Education, Delhi State vs. Subhani Jalali etc. FIR no.144/02 19 Govt. and Crime Branch officials while the examination was being conducted, though the timing of the raid and its result is highly contentious and disputed by the accused herein.
It is also not in dispute that on 13.03.2002 Class X Maths examination was conducted by CBSE.
24. Disputed Facts:
Now coming to the disputed facts. The first material disputed fact which the prosecution was required to prove is the exact time of raid and consequent recovery of incriminating articles/question papers as alleged. The case of the prosecution is that complainant PW5 B.R. Sharma, the then Secretary, CBSE along with his colleagues, and officials of Crime Branch including Investigating Officer PW14 Insp. Virender Singh raided the school and entered the examination centre at 9.40 a.m. The said fact was reiterated by all the members of the official raiding party i.e. PW5 B.R. Sharma, PW8 Shashi Bhushan, Joint Secretary, CBSE, PW14 Insp. Virender Dalal and PW2 Ct. Abdul Gaffar. All of them stuck to their versions regarding they having entered the school at 9.40 a.m. where they found accused Subhani Jalali being Centre Superintendent in the Examination Centre having all the packets of Class X Maths Question Paper. In cross examination of all the said witnesses on the said issue of timing of the raid, no worthwhile contradiction has been brought forth which puts a question mark over the said claim.
State vs. Subhani Jalali etc. FIR no.144/02 20
25. The versions of said witnesses qua timing of the raid was also corroborated by other members of the raiding party of the Department of Education, Govt. of Delhi i.e. PW2 Ms. Kamlesh Chauhan, PW6 Ms. Jaswinder Kaur, PW7 Sh. Kuldeep Rai, the Education Officer and lastly PW13 Sh. G.P. Singh. All the said witnesses except PW7 Sh. Kuldeep Rai, first of all assembled at Sector9, Education office, Rohini and thereafter, proceeded on the directions of Education Officer to Himalaya Public School, Sector7, Rohini. All of them except PW13 Sh. G.P. Singh consistently deposed as to the time when they reached at the examination centre of the school i.e. at about 9.45 a.m. PW13 though claimed that it was around 10.00 a.m. when they reached and found the question papers to be opened. Again, in the cross examination of all the said members of raiding party of Department of Education, no contradiction has been brought forth as to the time of their arrival. They all were senior officials from different schools having no connection or collusion with the CBSE, and therefore, had no reason to depose falsely in this regard. Thus, it can be reasonably concluded that the members of the raiding party led by Sh. B.R. Sharma, the then Secretary reached at Himalaya Public School, Sector7, Rohini at about 9.409.45 a.m. and found one question paper packet to be in open condition.
26. The testimonies of all the said witnesses were impugned on behalf of the accused persons on the sole ground of tussle between the school management and CBSE qua the State vs. Subhani Jalali etc. FIR no.144/02 21 affiliation of the school. Only bald suggestions were given to Sh. B.R. Sharma in this behalf by accused persons and it was claimed to be the reason for the arraying of accused persons in the present matter. The said defence has remained unproved and no such record or evidence has come on record. During the cross examination of PW5, one notice Ex.PW5/DA on behalf of accused Subhani Jalali was produced which is a show cause notice dated 18.04.2002 issued by CBSE to Manager, Himalaya Sr. Sec. School, Sector7, Rohini, Delhi, was shown. He admitted the said notice was issued consequent to the raid conducted on 13.03.2002 wherein the school was called upon to explain their conduct regarding noncompliance of mandatory directions qua conduct of CBSE examinations and opening of question papers envelope much prior to the stipulated time.
The production of the said document does not in any manner probalises the defence of the accused persons regarding there being any dispute between the school management and CBSE qua affiliation of the school prior to the raid. On the contrary, the said letter itself reflects that the school was having a provisional affiliation since the office letter dated 28.01.1993. It was enjoying the same since then continuously. The said letter also does not in any manner reflect any prior misconduct or dispute between the management and CBSE qua its affiliation. Per contra, the production of the said document by one of the accused reflect that she was having the possession of all the relevant documents qua the affiliation of the school and if indeed their version regarding previous tussle was true, State vs. Subhani Jalali etc. FIR no.144/02 22 then, the said documents in their custody should have been produced. In these circumstances, the defence propounded on behalf of the accused persons regarding the false raid conducted by PW5 Sh. B.R. Sharma along with other members including that of Department of Education, GNCT of Delhi, has not been proved.
27. Even otherwise, the members of the raiding party led by Educatin Officer PW8 Sh. Kuldeep Rai, PW2 Ms. Kamlesh Chauhan, PW6 Ms. Jaswinder Kaur and lastly, PW13 Sh. G.P. Singh had no connection at all with the CBSE. They were independent employees of Delhi Govt. who were working in various capacities with Department of Education. It cannot by any stretch of imagination believed that the said employees deposed falsely at the instance of CBSE or had any nexus with the CBSE or its Secretary Sh. B.R. Sharma as suggested. In these circumstances, the testimonies of the said witnesses qua the time of arrival and raid at the school has to be held to be credible, trustworthy and reliable.
28. The next material disputed facts deposed by the members of the raiding party led by Sh. B.R. Sharma was that after their arrival at school at 9.45 a.m., accused Subhani Jalali was found present in examination centre room. Some other staff members were also present but have remained unidentified due to lapses on the part of the IO. All of them consistently deposed that they found one of the envelope containing Maths question paper with serial No.30/1/1 to be in open condition at about 9.40 a.m. It was found by State vs. Subhani Jalali etc. FIR no.144/02 23 them that envelope of the said question paper was not having mandatory four signatures of Assistant Superintendents as well as timing of the opening. Later on, on counting, the said papers were found to be forty three instead of fifty. As far as the said aspect is concerned, all the said members of the raiding party including that of Department of Education, Delhi govt. have deposed consistently. In the cross examination conducted on behalf of the accused persons on the said aspect of the question papers envelope being found in open condition, no worthwhile contradiction has been brought forth except as pointed out in the cross examination of PW13 Sh. G.P. Singh.
29. It was argued that PW13 Sh. G.P. Singh in the cross examination admitted to the fact that when they reached at the spot after the arrival of CBSE and police officials, they found the question papers to be in the hands of CBSE officials and they gave it to accused Subhani Jalali to count it. Thus, it was suggested that it was in fact CBSE officials who had illegally opened the envelope much prior in time, and thereafter, falsely implicated the accused. The said version of PW13 has to be read in entirety and the said answer cannot be looked in isolation. He in the examination in chief clearly deposed that when they had reached at the spot, they found some question papers in the open condition and the one envelope was found containing forty three question papers. He further claimed that they were informed by the Crime Branch officials that on inspection, they had found photocopy of the papers on the basis of which accused persons were arrested. His State vs. Subhani Jalali etc. FIR no.144/02 24 voluntary version as to handing over of question papers to accused for counting has to be seen in context of purpose for which they were handed over. He further in the cross examination by the Ld. APP admitted to the fact that at the time of recovery, he was sitting in the office and it was not effected in his presence. Admittedly, on all the said aspects, his testimony is in contradiction to the other members of his raiding party i.e. PW2 Ms. Kamlesh Chauhan, PW6 Ms. Jaswinder Kaur and Education Officer PW8 Sh. Kuldeep Rai. The reason for the said contradiction appears to be due to lapse of time and he being not party to the entire proceedings right since their arrival till the conclusion. He kept on sitting in the office and never bothered to follow his seniors led by Education Officer PW8 Sh. Kuldeep Rai. Hence, said version of PW13, thus, cannot be given much credence in view of consistent testimonies on the aspect of one of the envelopes being found in open condition at about 9.40 a.m. by other members of his team led by his senior PW8 Sh. Kuldeep Rai.
30. On the said aspect, it was also argued that none of the seizure memos or envelope mentions about the time when it was seized or found by them to be in open condition. PW14 IO Insp. Virender Dalal admitted to the fact that none of the witnesses who signed the seizure memos including the seven and forty three question papers of series 30/1/1 put the time of the seizure or the time of recovery. Similarly, PW5 and other witnesses too admitted to the said fact. Admittedly, in the present case, the criminality revolves around State vs. Subhani Jalali etc. FIR no.144/02 25 the fact that there was breach of timing of CBSE guidelines regarding opening of question booklet packet, and hence, it would have been wise if the sign was put on the said open envelope No.30/1/1 with time. But, it is also admitted fact that the entire proceedings in the present matter right since the time of arrest, seizure and sealing of case property took considerable time and took place in highly charged atmosphere. Therefore, the said lapse. It has also quite apparent from the record that on the very same day, the paper was conducted as per the schedule with another set of papers, and therefore, the members of the raiding party led by PW5 Sh. B.R. Sharma were also involved in that process. Justification for the said nonmentioning of the time therefore appears to be probable and this alone cannot be the ground for rejecting the oral versions given by them on the issue of timing of opened question packet of Maths paper by accused Subhani Jalali in violation of CBSE guidelines.
31. Further, on said aspect of timing, the reliance was also placed upon the statement of PW11 Satbir Singh and PW10 Sh. R.P. Kaushik by accused. As per the procedure of CBSE, the question paper envelopes used to be collected by authorised representative of CBSE and school from the Nationalized bank, and thereafter, delivered to the concerned school. In the present case in hand, it was Canara Bank, Azadpur and as per PW9 Sh. J.L. Pahwa, the then Manager, seven sealed bags containing the question papers were handed over to Desk Officer PW10 Sh. R.P. Kaushik. PW10 Sh. R.P. Kaushik admitted to the State vs. Subhani Jalali etc. FIR no.144/02 26 fact that he had collected seven parcels i.e. six brown parcels and one white parcel from Canara Bank at about 8.50 a.m. (advertently mentioned as p.m. due to clerical error) and handed over the same to key person of CBSE which he probably identified as Shanta Rani(not examined or cited as witness). On the said aspect, his version is corroborated by PW11 Satbir Singh who too admitted to the fact that the official from CBSE was accompanied by one lady to whom the sealed parcels were handed over, though he further denied the case of the prosecution and claimed that they reached at the school only at about 10.00 a.m. Therefore, by relying upon the said version of PW11, it was claimed that his version completely goes against the entire story of the prosecution.
32. It is an admitted fact from the record as well as document Ex.PW9/B that the said seven sealed bags were handed over to PW10 at about 8.50 a.m. on 13.03.2002. Therefore, if the said bags left Canara Bank at Azadpur at about 8.50 a.m., it cannot by any stretch of imagination be believed that it took more than one hour to reach Sector7, Rohini. It cannot be believed that a distance of about 67 kms. in a car/other private vehicle was covered in the early morning hours when it was not even a peak time in more than one hour. Therefore, on the aspect of time when packets reached the school, not much credence can be attached to the version of PW11 Satbir Singh. PW11 in the cross examination by Ld. APP admitted to the fact that he was still employed as a Peon which reflect that he deposed falsely on the said aspect and has tried to mislead the Court in this State vs. Subhani Jalali etc. FIR no.144/02 27 regard. In these circumstances, it is held that though the versions reliable and trustworthy given by the members of raiding party, it has been proved on record by the prosecution that on that day, the members of the raiding party reached at the school in the examination centre at about 9.40 a.m. They found, the accused Subhani Jalali, Centre Superintendent present there and one of the envelope of the Clase X Maths Examination to be in open condition which was in violation of the regulation 2.3.(a) and (b) of CBSE Guidelines, 2002.
33. The other piece of circumstantial evidence produced by prosecution in this regard is the recovery of photocopies of said opened envelope in the adjoining library of the school and further seven missing papers of the same series being recovered consequent to the disclosure statement of accused Subhani Jalali. As far as the first aspect of recovery of photocopies of the same series of the question papers in the adjoining library is concerned, all the said recovery witnesses including PW5 Sh. B.R. Sharma, PW2 Ms. Kamlesh Chauhan, PW6 Ms. Jaswinder Kaur, PW7 Sh. Kuldeep Rai and lastly, PW8 Sh. Shashi Bhushan deposed consistently. All of them deposed that after they found the said deficiency in the opened envelope, they started searching for the missing papers and in the adjoining library, they found seven photocopies of few pages of paper in the ladies purse of accused Sucheta Katyal. Separately, they found twelve photocopies of few pages of the said missing papers kept under the books of the library. On the said aspect of State vs. Subhani Jalali etc. FIR no.144/02 28 recovery, no worthwhile contradiction has been brought forth in their testimonies. Their testimonies were impugned only on the ground by placing reliance upon the version of PW13 Sh. G.P. Singh. It has already been observed that the version given by PW13 Sh. G.P. Singh as to the sequence of events does not appears to be credible. He, during all the said proceedings instead of performing his duty, kept sitting in the office and was not even following the directions of seniors i.e. PW7 Sh. Kuldeep Rai, the Education Officer.
34. The said part of the recovery was also impugned on behalf of the accused person on the ground that there was possibility of misuse of the sealed parcels and recovery being planted. The versions given by PW14 Insp. Virender Dalal and PW3 Ct. Abdul Gaffar are contrary on the said aspect. As per IO PW14 Insp. Virender Dalal claimed that he seized the said photocopies of the opened question papers recovered from the library at two different places vide seizure memos Ex.PW2/A and Ex.PW2/B respectively. He had firstly sealed the said articles with his seal of VSD. Further, as per the contents of the last seizure memo Ex.PW2/E which is concerning the recovery of seven original missing papers, the seal after use was handed over to Sh. B.R. Sharma. Sh. B.R. Sharma in the cross examination denied the said fact. Per contra, the IO also in the cross examination claimed that he had handed over the seal to Ct. Abdul Gaffar. PW3 Ct. Abdul Gaffar remained completely silent in this regard. Thus, admittedly, there is contradiction with respect to the handing over of the seal to the independent person after sealing of the State vs. Subhani Jalali etc. FIR no.144/02 29 parcels in question. The said fact has to be considered in the light of the fact that admittedly the sealed packet of question papers with the series No.30/1/1 and 30/1/2 and five other parcels containing fifty papers in each were delivered to the school Centre Superintendent accused Subhani Jalali as proved through document Ex.PW9/B. The only addition to the said question papers was the photocopies of the already opened series 30/1/1. On the said aspect, the consistent oral testimonies have come on record, given by the members of the raiding party led by PW5 Sh. B.R. Sharma, the Secretary, CBSE. The other members of the raiding party who all are independent and highly placed Govt. officials having no concern either with the school or the CBSE, deposed about said recovery of said photocopies. Therefore, the version regarding recovery of photocopies of the already opened envelope by the raiding party members cannot be merely discarded only on the issue qua contradiction regarding handing over of the seal by the IO to the independent person. The said contradiction would have been more relevant in the cases involving contraband etc. and not the case herein wherein the recovered articles i.e. question paper packets etc. are itself not disputed.
35. The next piece of circumstantial evidence against the accused qua the question of Maths paper being leaked are the photocopies of the question paper of series 30/1/1. As per the members of the raiding party, after their arrival in the examination centre wherein Centre Superintendent Subhani Jalali was present, they found one of the Maths series State vs. Subhani Jalali etc. FIR no.144/02 30 packet to be in open condition at 9.40 a.m. They confronted her. She claimed that the other teacher, namely, Amita Goyal might have taken the seven original missing papers. Thereafter, all the members of the raiding party led by PW5 Sh. B.R. Sharma searched for the missing papers and went to the adjoining library. In the adjoining library, they found photocopies of the said missing Maths paper from two different places. Seven copies of the two pages of the said question papers were lying in the ladies purse which was lying in open condition, twelve pages of the question papers were found to be beneath the books kept in the library. Lastly, they found the original missing question papers also from the library though the manner of the said last recovery is doubtful. As far as the recovery of two sets of photocopies of the opened Maths series question paper is concerned, all the recovery witnesses have deposed consistently as to the place of recovery and its time. Though there is contradiction on the issue as to whether the library prior to the search was in open or locked condition. PW5 and PW2 claimed that it was locked and key was arranged somehow, but they were unable to clarify on the said aspect. Per contra, PW8 Sh. Shashi Bhushan claimed that was not in locked condition. Similarly, PW5 Sh. B.R. Sharma too claimed that it was found in locked condition and key was arranged by accused Subhani Jalali. PW7 Sh. Kuldeep Rai also denied the fact that the library was locked and key was used in opening it. Lastly, IO PW14 Insp. Virender Dalal also denied the fact of said library being locked and key being arranged by them.
State vs. Subhani Jalali etc. FIR no.144/02 31 Therefore, as far as the aspect of the library of the school being in closed or locked condition is not clear from the testimonies of the recovery witnesses. But, on the aspect of recovery of two sets of photocopy of the Maths question paper series which was found open, they have deposed consistently and the said fact has not been rebutted in the entire cross examination.
36. The last set of recovery as alleged are the seven missing original Maths paper which, as per the IO, were got recovered subsequent to the disclosure statement of accused Subhani Jalali. As per the IO, after the arrest of the accused, she led them to the library from where they got recovered seven original missing question papers kept under the heap of books. But, on the said aspect, the remaining witnesses have deposed contradictory. PW5 Sh. B.R. Sharma despite being present right from the beginning till the end remained silent in this regard. Thus, as per version of PW5, no such recovery was effected. The other witnesses too denied the said theory of the IO and deposed that upon search by CBSE officials and the police officials, they found the said missing seven question papers. Thus, as far as the recovery of seven original question papers is concerned, the same appears to be doubtful and cannot be taken against the accused as circumstantial evidence. But, as for the first set of recovery of two sets of photocopies of the Maths question paper of the series which was found open, the same stands proved and it is a material piece of circumstantial evidence which the accused more specifically State vs. Subhani Jalali etc. FIR no.144/02 32 Centre Superintendent was under obligation to explain.
37. The onus shifted upon the Centre Superintendent Subhani Jalali to explain as to how the said question papers much prior to the stipulated time got opened and subsequently, it went outside the control room i.e. to the nearby library room where it was got photocopied. The said circumstantial evidence only reflect the malafide and dishonest intention on the part of accused Subhani Jalali and her other accomplices who connived with her to leak out the paper either for monetary gains or for giving unnecessary advantage to their students by preparing them before hand. Apart from the said evidence of opening of the packet of Maths paper of Class X examination at 9.40 a.m. and subsequent recovery of photocopy of said question paper, no other direct or indirect evidence has come on record against the accused.
38. The other argument qua discrepancy pointed out qua the FIR being deposed to be registered at PS Janak Puri and prosecution being silent as to how other set of question paper reached the school also does not in any manner impeaches the versions given by members of raiding party. The first issue concerning the testimony of PW1 HC Sushila , it appears that her testimony is against the contents of document i.e. Ex.PW1/A. Admittedly, as per Ex.PW1/A, the FIR was got registered at PS Rohini on 13.03.2002. Therefore, her version which is in contradiction to contents of document is liable to be rejected.
State vs. Subhani Jalali etc. FIR no.144/02 33
39. The second issue concerning conduct of paper and how another set of papers were arranged is inconsequential to the facts of present matter. The issue herein concerns the attempt made to leak Class X Maths paper and not how another set of paper was arranged by CBSE after seizure of delivered papers at first instance. Even otherwise, the said fact has been satisfactorily explained by PW5 and PW2.
40. Lastly, it was argued on behalf of the accused persons even if for the sake of argument the said evidence produced by prosecution is taken to be true, then, no offence u/s 420 IPC is made out. It was argued that there is no evidence of wrongful gain or loss as the investigation in this regard is completely silent. It was also argued that there was no dishonest misrepresentation or deception either played upon the CBSE or any other victim which is the first requirement for the offence u/s 420 IPC.
41. Before discussing the facts in the present matter, the ingredients for the offence u/s 415 read with Section 420 IPC requires to be considered and it has to be seen whether the facts proved on record proves the offence u/s 415 or 420 IPC. In this regard, the judgment of the Hon'ble Supreme Court in V.P. Shrivastava vs. Indian Explosives Limited and Others, 2010 STPL 22934 SCBI is relied upon by the accused Sucheta Katyal is relevant. The relevant para is reproduced as under:
"23. The ingredients required to constitute an offence of cheating have been succinctly laid down in Ram Jas v. State of U.P. (1970) 2 SCC 740 : 1970 SCC (Crl) 516 as follows: (SCC p.743, para 3) State vs. Subhani Jalali etc. FIR no.144/02 34 "(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
(Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 : 2000 SCC (Cri) 786, S.W. Palanitkar v. State of Bihar (2002) 1 SCC 241 : 2002 SCC (Cri) 129, Kuriachan Chacko vs. State of Kerala (2008) 8 SCC 708 : (2008) 3 SCC (Cri) 631)".
42. In the present case in hand, admittedly, there was no express fraudulent mis representation on the part of the school management or the Centre Superintendent and others to CBSE which is stated to be the victim in the present matter. It is only a case of deception through implied conduct of the accused persons. In this regard, the judgment of Hon'ble Supreme Court in case titled as Shivanarayan Kabra v. State of Madras, AIR (1967) SC 986 is quite clear and it was held that "it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct State vs. Subhani Jalali etc. FIR no.144/02 35 evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.". This issue has also been subsequently discussed by the Hon'ble Delhi High Court in case titled as Surinder Kumar vs. State, Crl. Rev. P.122/2003 dated 27.11.2009. It was clearly held that "necessary mense rea has to be gathered from the attendant circumstances". In the present case in hand also, though there was no express dishonest representation to the CBSE but the implied conduct on the part of accused Subhani Jalali along with other coconspirators They dishonestly tried to deceive CBSE by pretending that the examination was being conducted as per the rule and guidelines. The necessary mense rea i.e. malafide intention is clear from the incriminating circumstance of getting the question paper photocopied in the library. It would have been merely a procedural lapse on the part of the accused no.1 if the evidence was that only CBSE and police official found the question paper envelope to be open much prior in time i.e. 9.40 a.m., which is against the regulations of CBSE. But, herein it is not the case so and the malafide/fraudulent intention and deception has to be gathered from the attendant circumstances which is the recovery of photocopies of the said same question series booklet from the adjoining library of the school.
43. The next ingredient which the prosecution was supposed to prove was that the said dishonest deception, induced the CBSE to do or omit to do anything which they would not have done if not so deceived and the said act or omission on the part of the CBSE has State vs. Subhani Jalali etc. FIR no.144/02 36 caused or likely to cause damage to its body, mind, reputation or property. In the present case in hand, the case never reached that stage as no investigation has been carried out as to whether the accused persons were successful in leaking out the paper and what was the motive behind leakage of paper. IO PW14 in the cross examination admitted to the fact that he never conducted the investigation either from the students who were giving the examination at Himalaya Public School or from the students of Prince Public School who were giving the papers at Himalaya Public School. He though baldly claimed that as per the information, the students of Himalaya Public School used to be first brought to the said school and after getting them prepared through the papers used to be dropped at nearby Prince Public School where their Centre was established. But, the said averment of the IO is not supported by any investigation or document on record. He failed to examine either of the students or the parents or the staff from both the schools.
44. The investigation in the present matter leaves lot to be desired and reflect to be a casual mechanical exercise. The investigation initiated on 13.03.2002 and ended on the very same day after the seizure of incriminating articles. Apart from writing one letter to Canara Bank, no other worthwhile investigation was carried out. Thus, the second and third ingredients of the offence have not been got proved and the evidence produced on record merely proves the attempt to leak the paper either for monetary gains or for ensuring the better result for their school to the benefit of the school management which State vs. Subhani Jalali etc. FIR no.144/02 37 includes the accused no.1 being the Principal.
45. The prosecution herein had also named the accused Amita Goyal and Sucheta Katyal as being the coconspirators with accused Subhani Jalali. The basis of the arrest is the disclosure statement of accused Subhani Jalali against accused Amita Goyal and recovery of incriminating articles from the ladies purse belonging to accused Sucheta Katyal. But, as far as their presence or whether they were being on duty on that day in the school or involved in any manner in conduct of the examination, there is no evidence on record nor any investigation has been got conducted. As per the version of IO PW14, after the accused Subhani Jalali was apprehended, she claimed that accused Amita Goyal might have taken the eight missing question papers. It is not clear from his version as to whether the said accused Amita Goyal was on duty or not on that day or was involved in any other manner in the conduct of CBSE examination. The version of accused Subhani was taken as gospel truth. It is also not clear from his testimony as to from where and at what time, the accused Amita Goyal appeared and was arrested.
46. The testimonies of other witnesses qua the said two accused are also in contradiction to each other. PW5 and PW2 admitted to the fact that the library from where the recovery of purse of accused Sucheta Katyal was effected was locked and key was obtained from someone. They too remained silent qua any other the role of accused Sucheta Katyal and Amita Goyal and denied their presence at the spot during relevant State vs. Subhani Jalali etc. FIR no.144/02 38 time of their raid. PW5, similarly, remained completely silent as to the presence and arrest of both the said accused. Per contra, PW8 Sh. Shashi Bhushan claimed that both Amita Goyal and Sucheta Katyal were found by them in the library and library was not locked. He was confronted with his statement u/s 161 Cr.PC in this regard which reflect that it to be improved version. Similarly, PW6 Ms. Jaswinder Kaur admitted in her cross examination that accused Sucheta Katyal was not even present in the school and was telephonically called from home. She in contradiction to the other witnesses qua accused Amita Goyal claimed that she was present in the examination centre with accused Subhani Jalali which is admittedly in contradiction to the versions of all the other members of the raiding party as well as the contents of the FIR. Therefore, the presence and role of accused Sucheta Katyal and Amita Goyal in the present matter are highly doubtful and it cannot be assumed that they were indeed the other conspirators with the main accused Subhani Jalali. It is also not clear as to how the ladies purse of accused Sucheta Katyal reached the library if she was at her home and not on duty. The mere presence of the purse of the said accused cannot be taken as sole ground for taking her to be the coconspirator in attempt to leak the paper. Therefore, both the said accused deserve benefit of doubt.
47. The other coconspirators in the present matter who acted along with accused Subhani Jalali have remained unidentified and seems to have been screened by the State vs. Subhani Jalali etc. FIR no.144/02 39 investigating authority. It is admitted and proved on record that one of the packet Ex.P6 was found having four other signatures of the Assistant Superintents along with that of accused Subhani Jalali with timing as 10.10 a.m., despite the said fact that it was only 9.45 a.m. Similarly, the open packet was not having the signatures of other Assistant Superintendents which was required under the CBSE regulations. The investigating officer failed to investigate qua the identity of the said four Assistant Superintendents who, admittedly, falsely signed the packets with a false noting of timing. They were indeed the conspirators who had helped the main accused in the attempt to leak out the paper by ensuring the opening of the packets much prior in time. The version of IO PW14 also reflects that no attempt was made by him to investigate the role of management of the school who was also the beneficiary of the said leakage. Admittedly the main accused was not acting independently but only in connivance with the school authorities. None of the said facts were investigated. The said offenders have been thus let scot free.
48. In light of the above said reasons, it has to be held that the prosecution has been successfully able to prove the case of attempt to cheat the CBSE by leaking the paper by accused Subhani Jalali by hatching a conspiracy in this regard with other Assistant Superintendants and unknown persons. The present case does not fall u/s 420 IPC as no evidence of wrongful gain or loss has come on record. It is simplicitor a case of cheating State vs. Subhani Jalali etc. FIR no.144/02 40 u/s 417 IPC. The accused Subhani Jalali is accordingly convicted for the offence u/s 417/511 IPC read with section 120B IPC by taking recourse of Section 222 of Cr.PC. Digitally signed by
GAGANDEEP GAGANDEEP SINGH
Announced in open Court. SINGH Date: 2019.10.23
14:53:40 +0530
Delhi, Dated the 16.10.2019 GAGANDEEP SINGH
This Judgment contains 40 pages Chief Metropolitan Magistrate
and each page is signed by me. Rohini/New Delhi