Delhi District Court
Rajiv Kumar vs The State (N.C.T. Of Delhi) on 31 August, 2022
IN THE COURT OF MS. SHEFALI SHARMA
ADDL. SESSIONS JUDGE-02 ( NORTH )
ROHINI DISTRICT COURTS : DELHI
In the matter of:
CA No. 09/2020
Rajiv Kumar
S/o Sh. Jai Prakash
R/o Village Sunhedha, District Bagpat,
Tehsil Kherka, Uttar Pradesh
....Appellant
Versus
The State (N.C.T. of Delhi)
...Respondent
Date of Institution : 20.01.2020
Date of Arguments : 22.08.2022
Date of Order : 31.08.2022
JUDGMENT
1. Present appeal is filed under Section 374 Cr.P.C. against the judgment dated 19.12.2019 and order on sentence dated 15.01.2020 (hereinafter referred to as impugned order) passed by Ld. Trial Court of ACMM, North whereby the appellant has been held guilty and directed to undergo sentence of RI of one year alongwith fine of Rs. 10,000/- and in default of payment of fine further undergo SI for six months for the offence punishable under Section 420 IPC. He was further directed to undergo sentence of RI for a period of one year along with fine of Rs.10,000/- and in default of payment of fine to further undergo SI for six months for the offence punishable under Section 417 IPC.
Rajiv Kumar Vs. State Pages 1 of 12 PS Mukherjee Nagar
2. It is submitted by ld. Counsel for appellant that the Ld. ACMM without appreciating submission of the appellant has wrongly convicted him under Section 420/471 IPC. Hence, the present appeal.
3. Brief facts of the case are that the present FIR No. 135/2007 had been registered U/s 420/471 IPC, PS Mukherjee Nagar against the appellant on the allegations that he used a forged participation certificate issued by Maharashtra State Kabbadi Association (hereinafter referred to as the Sports Certificate) for participation in the 51st Senior National Kabbadi Championship 2003 (hereinafter referred to as the Event) on behalf of State of Uttar Pradesh in December 2003. The event was also in coordination with Amature Kabbadi Federation of India (hereinafter referred to as The Federation). It was further alleged that on the basis of this forged certificate, the appellant/appellant applied for the job of Constable in Delhi Police, was interviewed on 28.08.2006 and joined the department on 20.03.2006 and thereby committed the offence of using the forged documents. In this manner, he induced the Delhi Police to recruit the appellant/appellant for the post of Constable (Executive) which caused wrongful loss to Delhi Police and wrongful gain to the appellant/appellant.
CHARGE
4. Thereafter, vide orders dated 21.09.2011 appellant/appellant had been charged U/s 420/471 IPC by the Ld. Trial Court to which he pleaded not guilty and claimed trial.
5. Thereafter, prosecution adduced 8 witnesses.
Rajiv Kumar Vs. State Pages 2 of 12 PS Mukherjee Nagar PROSECUTION EVIDENCE
6. PW1 is Balbir Singh, retired ACP, on whose complaint Ex.PW1/A case was registered. He deposed that a complaint was received in the office of DCP 4th Battalion DAP against one Ashok Kumar as well as Rajiv Kumar. It was alleged that both of them used a forged certificate of National Kabbadi Championship for the purpose of recruitment in Delhi Police. That an inquiry was conducted and vide report dated 16.12.2006 Mark A, the certificate was found forged and on the basis of this complaint, he made a complaint to PS Mukkherjee Nagar.
PW2 is ASI Rajwanti, Duty Officer. He proved the registration of FIR Ex. PW2/A and endorsement on the rukka Ex. PW2/B. PW3 is J.S. Gehlot, the then President of the Kabbadi Federation, who issued the verification letter Ex.PW3/A to the query of Delhi Police about the genuineness of the sport certificate. He deposed that as per their record, the certificate was found forged.
PW4 is SI Dharambir, who was posted as ASI (Ministerial) in the Recruitment cell 4th Battalion DAP and produced various documents on the requirement of IO HC Jai Chand. These documents are the application form Ex.PW4/A vide which the appellant/appellant applied for the job, interview call letter Ex.PW4/B, allegedly forged participation certificate Ex.PW4/C in the event, the document checking proforma for considering various eligibility criteria for the job Ex.PW4/D and Ex.PW4/E is the forwarding letter dated 18.04.2007 for the various document required by the IO which are the advertisement for the Job, Mark A2. Letter issued on behalf of DCP 4 th Battalion to PW3 J.S. Gehlot seeking verification of the participation certificate among other things which is dated 07.12.2006 is Mark M. Letter of the office of said DCP to DCP Rajiv Kumar Vs. State Pages 3 of 12 PS Mukherjee Nagar (Establishment) and DCP (PTC) directing registration of case against appellant/ appellant is mark A3 and the order of termination issued by Principle Police Training College dated 23.01.2007 and dispatched on 24.01.2007 to concerned Units of Delhi Police.
PW5 is Sh.S.K. Ahuja, Retired ACP Recruitment Cell, who provided the documents as per the forwarding letter Ex.PW4/E. PW6 is HC Mehndi Hassan, who accompanied the IO during investigation. He deposed that on 23.05.2007, he along with IO gone to Tis Hazari Court to arrest the appellant/appellant. That appellant/appellant surrendered himself before the court. That IO arrested the appellant and personally searched him vide memos Ex.PW6/A and Ex.PW6/B respectively and also recorded the disclosure statement of appellant Ex.PW6/C. He further deposed that on 24.05.2017 he along with IO and appellant went to village Sunehda, Baghpat, UP, where appellant pointed out the place, where he met with one person, who gave him fake certificate. That IO prepared the pointing out memo Ex.PW6/D. PW7 is Sh. Sehdev, who belongs to the same village as the appellant/appellant on whose complaint the verification of the sports certificate was done by Delhi Police which ultimately culminated into the initiation of inquiry by the Delhi Police whereon complaint was given by PW1 and FIR was registered. It is pertinent to mention that he completely resiled from his earlier statement and despite his lengthy cross-examination by Ld. APP for the State, denied having made any complaint.
PW8 is IO HC Jai Chand, who collected the above mentioned documents like the recruitment documents including verification of the forged sport certificate, documents prepared during investigation like arrest memo Rajiv Kumar Vs. State Pages 4 of 12 PS Mukherjee Nagar Ex.PW6/A, personal search memo Ex.PW6/B, disclosure statement Ex.PW6/C and pointing out memo Ex.PW6/D. STATEMENT OF APPELLANT U/S 313 CR.P.C.
7. On 03.05.2018 the statement of appellant had been recorded U/s 313 IPC where he pleaded that he has been falsely implicated and denied the allegations of using forged documents and stated that he was recruited as per the qualification and the sport certificate is genuine
8. After considering the prosecution evidence and the material on record the Ld. Trial Court passed the impugned judgment dated 19.12.2019 and order on sentence dated 15.01.2020 passed by Ld. Trial Court of ACMM, North whereby the appellant has been held guilty and directed to undergo sentence of RI of one year alongwith fine of Rs. 10,000/- and in default of payment of fine further undergo SI for six months for the offence punishable under Section 420 IPC. He was further directed to undergo sentence of RI for a period of one year along with fine of Rs.10,000/- and in default of payment of fine to further undergo SI for six months for the offence punishable under Section 417 IPC.
ARGUMENTS/GROUNDS OF APPEAL
9. It is argued by the Ld. Counsel for the appellant that Ld. Trial Court has failed to appreciate the evidence on record. That the Ld. Trial Court has failed to appreciate that the alleged forged sport certificate was never produced in original or seized by the IO. That in similar cases titled as State Vs. Dheeraj FIR No. 151/07 and State Vs. Deepak Kumar FIR No. 146/07 the appellant persons had been acquitted on the same allegations. That the whole story of the Rajiv Kumar Vs. State Pages 5 of 12 PS Mukherjee Nagar prosecution heavily relies upon the testimony of PW7 Sehdev Singh who has completely turned hostile and resiled from his earlier statement. Despite his cross examination by Ld. APP for the State, he has categorically denied the suggestion of having made any complaint dated 22.08.2006. That the judgment passed by the Ld. Trial Court is wholly perverse and suffers from material irregularities and liable to be set aside. It was further argued that appellant anyways fulfilled the qualification and there was no occasion for him to give any fake certificate. That the complainant himself has not supported the case of the prosecution and appellant has been falsely implicated. The ld. Counsel for the appellant has relied upon the RTI application and the reply issued by the concerned Department in support of his contentions.
10. On the other hand, Ld. Additional PP for the State argued that the prosecution has proved beyond reasonable doubt that the appellant had committed cheating and used a forged sport certificate during his interview before the Delhi Police and the Ld. Trial Court after considering all the material on record has rightly convicted the appellant U/s 420/471 IPC.
11. Detailed arguments heard. Trial Court record perused.
FINDINGS PRESUMPTION OF INNOCENCE
12. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the appellant is entitled to take Rajiv Kumar Vs. State Pages 6 of 12 PS Mukherjee Nagar advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the appellant in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, it was upon the prosecution to prove the guilt of the appellant beyond reasonable doubt.
13. Briefly stated, it was the case of the prosecution that appellant Rajiv Kumar allegedly forged the document i.e. a sports certificate of participation issued by Maharashtra State Kabbadi Association for the participation in 51 st Senior National Kabbadi Championship 2003 on behalf of State of Uttar Pradesh in December 2003. The event was coordinated along with Amateur Kabbadi Federation of India and produced the forged document before the interview board of recruitment for the post of Constable in Delhi Police on 28.08.2006 despite Rajiv Kumar Vs. State Pages 7 of 12 PS Mukherjee Nagar knowing that it was a fake sport certificate and also joined the department on 20.03.2006. The appellant was charged vide orders dated 21.09.2011 for committing the offence under Section 420 IPC r/w Section 471 IPC to which he pleaded not guilty and claimed trial.
14. The prosecution examined as many as 8 witnesses in this case.
15. PW1 has categorically deposed that on a complaint received from DCP 4th Battalion against one Ashok Kumar in which it was alleged that he had applied for the post of constables in Delhi Police on the basis of forged certificate of National Kabbadi Championship and it was in the said complaint that allegations were made against the appellant herein Rajiv Kumar as well, who is the real brother of Ashok Kumar that he also produced a forged certificate for the purpose of recruitment. On the basis of the admission made by Ashok Kumar upon an inquiry before the Inspector/Checking Team, who admitted that his certificate was forged, it appears that it was presumed by PW1 that the certificate issued by Rajiv Kumar, the appellant herein was also fake. The assumption was based on the verification report dated 16.12.2006. In the said letter Mark A, the basis or reasons on which it was assumed that the sport certificate issued by Rajiv Kumar is fake is completely absent. Infact further information had been sought by referring the case to the Secretary, UP State Kabbadi Association Lucknow but the prosecution has failed to examine any responsible official from UP State Kabbadi Association.
The entire prosecution story was set into motion upon a complaint made by one Sehdev Singh (PW7) S/o Bharam Singh, mark X, who had alleged that Ashok Kumar and another person Rajiv Kumar, who is his real brother had used forged certificate for getting recruitment at the post of Constable in Delhi Rajiv Kumar Vs. State Pages 8 of 12 PS Mukherjee Nagar Police. The complainant Sehdev Singh has been examined as PW7, however, he has completely turned hostile and resiled from his earlier statement. Despite his cross examination by Ld. APP for the State, he has categorically denied the suggestion of having made any complaint dated 22.08.2006 mark X against Ashok Kumar or the appellant herein. He was a material prosecution witness but has completely uprooted the case of the prosecution by denying having made any such complaint.
16 I have carefully perused the certificate Ex. PW4/C which was in the Trial Court record. The same bears the signatures of J.S. Gehlot, President AKFI, M.Seetharam, Secretary AKFI, Chhagan Bhujbal, President Org. Committee, Sachin Ahir, Chairman Org. Committee, S.N. Salvi, Secretary Org. Committee, Mohan Bhavsar, Chairman MSKA and Nakul Patil President MSKA. Prosecution has failed to examine any of these alleged signatories in the witness box who could have been material witnesses and stated if at all they had signed the said certificate Ex. PW4/C or not and whether what type of genuine certificate Maharashtra State Kabbadi Association was issuing at the relevant time. This is a major lacuna in the prosecution story as these material witnesses were neither cited or examined by the prosecution, except one J.S. Gehlot, who was examined as PW3 but the said certificate Ex.PW4/C was never put to him during his course of examination. If that be so, it is hard to believe how the said certificate was assumed to be fake. Admittedly, the alleged certificate has not been sent to FSL for further investigation. Infact in his cross-examination, it is admitted by the said witness/PW3 the record relating to the certificate in question was not sought by the ACP or the IO nor was handed over to the investigating agency. Admittedly, no statement of the witness was recorded by the IO under Rajiv Kumar Vs. State Pages 9 of 12 PS Mukherjee Nagar Section 161 Cr.P.C.
17. As regards the list of candidates, who had participated in the Ameture Kabbadi Federation of India Mark X-3, it is pertinent to mention that although the name of appellant is mentioned at Sl. No.6 but his father name has been mentioned as Prem Raj Singh, whereas the name of the father of the appellant is Jai Prakash. The prosecution has failed to explain the same. Infact, the list would have been proved in evidence by the person who filled up the entry list/form and signed the same namely the General Secretary J.P. Aggarwal but the said witness has not been examined by the prosecution in the witness box.
18. Further, the ld. Counsel for the appellant had placed on record certain documents procured through RTI application and judicial notice can be taken of the reply given by the concerned department dated 08.01.2020, wherein it is mentioned that the appellant/appellant was already within the age limit and had obtained 51% marks in the merit list and thus, was anyways above the minimum criteria for selection and there was no reason for furnishing any forged certificate. I see force in the arguments raised by the appellant. The prosecution failed to prove what was alleged wrongful gain, if any, appellant would have obtained by submitting a forged certificate, if he was already within the merit list on the basis of his age as well as the score. The appellant had in his statement under Section 313 Cr.P.C. categorically stated that he was recruited in Delhi Police as per his own qualification.
Further, it was the prosecution story the alleged certificate was prepared at the local tea shop and the place was visited by the IO PW8. However, in his cross-examination, it is admitted by the IO that the tea shop owner or any Rajiv Kumar Vs. State Pages 10 of 12 PS Mukherjee Nagar other public persons, who were present at the time of visit during investigation had not been examined. It was further admitted by the IO that no document was obtained from the complainant Sehdev Singh, to substantiate the allegations made by him in the complaint and it appears that the whole investigating machinery was set into motion merely on the suspicion of said complainant Sehdev Singh that the appellant had submitted a forged certificate. Needless to say, the said complainant has completely resiled having made any such complaint and turned completely hostile to the case of the prosecution when examined as PW7. This material fact seems to have been over looked by the ld. Trial court.
19. The IO further admitted that the certificate Ex.PW4/C was never recovered from the possession of the appellant. He further admitted that no document had been obtained during investigation which could show the actual participation by the participants in the event. He further admitted that he had never obtained the specimen signatures of the appellant or the any of the signatories of the certificate in question or the persons who used to issue participation certificates, which could have been compared with the alleged fake certificate. It is further admitted that certificate in question was not sent to FSL by the IO to ensure its authenticity or to compare the same with other genuine certificates issued at that time. The signatures of J.S. Gehlot, PW3 nor the hand writing of appellant, was sent to FSL for further investigation. The genuine certificate, if any, has not been produced for the purpose of comparison as already stated above.
20. No efforts were made by the IO to enquire the genuineness of the said certificate or the signatures appearing thereupon as none of the alleged Rajiv Kumar Vs. State Pages 11 of 12 PS Mukherjee Nagar signatories of the said certificate has been examined by the IO except J.S. Gehlot. Had the IO inquired from the alleged signatories of the certificate, the question of forgery of the same and the question of the certificate being fake one or otherwise would have been answered. In this case, neither any of the alleged signatories has been examined by the IO nor the original certificate was seized nor the said certificate was sent to FSL for determining its genuineness.
21. I find force in the argument raised by Ld. Counsel for the appellant that there is every possibility that the appellant was implicated in this case on the basis of alleged certificate which was never produced by him. As such, the complainant Sehdev /PW7 completely turned hostile.
22. In view of the above-said discussions, I am of the opinion that prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. Hence, the judgment passed by the Ld. Trial Court convicting the appellant U/s 420 and U/s 471, IPC is set aside and appeal is allowed. appellant Rajiv Kumar is hereby acquitted in the FIR No. 135/2007 PS Mukherjee Nagar.
23. Appeal file be consigned to record room.
24. TCR, if any be sent back to the concerned court with copy of this judgment.
Pronounced in open (SHEFALI SHARMA)
Court on 31.08.2022 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT, ROHINI COURTS, DELHI
Rajiv Kumar Vs. State Pages 12 of 12
PS Mukherjee Nagar