Delhi District Court
State vs . : Hussain Babu And Other on 12 January, 2009
1
IN THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS: DELHI
State Vs. : Hussain Babu and other
FIR No : 33/91
U/s : 420/466/474/120-B IPC
P.S. : Chandni Chowk
JUDGEMENT
S.N. Particulars Details
1 Serial number of the case : 39/02
2 Date of commission of offence : 12/02/91
3 Date of institution of the case : 02/06/92
4 Name of the complainant : Constable Shiv Mohan
5 Name of accused, parentage & : 1. Hussain Babu address 2. Rajinder
3. Gopi
4. Harish Kumar
5. Vijay Kumar
6. Mohd. Sadat Ansari 6 Offence complained or proved : 120-B/466/474/484/473/485 IPC 7 Plea of the accused : Pleaded not guilty 8 Final Order : Harish Kumar and Vijay Kumar (Convicted) Hussain Babu - PO Rajender - PO Gopi - PO 9 Date of reserve for order : 02/01/09 10 Date of final order : 02/01/09 Judgment
1. Accused Harish Kumar and Vijay Kumar are facing trial for offence u/s 120-B/466/474/484/473/485 IPC respectively. Factual matrix of the matter is that on 10.02.91, SI Rajiv Rattan along with other police officials were on duty for arrangements, he received secret information regarding business of forged and fabricated passport and of false visa. Upon receipt of the said 2 information, a raiding party was constituted, some independent persons were sought to be joined in raiding party but it is stated that all of them left after expressing their inability. Accordingly, without losing much time, police raiding party went Koriya Bridge where accused Hussain Babu S/o Saiyad Ali was apprehended by SI Rajiv Rattan and accused Mohd. Sadat Ansari s/o Mohd. Mahboor Ansari was also apprehended by ASI Kashmira Singh. It is stated that accused Hussain Babu was having one bag which contained two passports No. B-143093 in the name of Manjit Johal (issued from Passport Authority Chandigarh) and another Passport No. F-450337 in the name of "Seeto", on which issuing authority seal was erased. Two seals were also recovered from him, which were found to be of office of Passport, Delhi and of Superintendent, Regional Passport Office, Delhi. Beside this one stamp pad and other stationery articles were recovered from the possession of the accused. One envelope containing two passport no. 041781 in the name of "Guruditta" and another passport no. T-6844354 in the name of Satnam Singh were recovered. Both these passports were stated to have been issued from Passport Authority Jalandhar and on those passports, photographs appeared to have been changed and Visa of USA was affixed, which appeared to be forged. On above facts, rukka was sent to PS and on which present case was registered.
2. In the course of investigation, disclosure statement of the accused were recorded and in pursuance of it, accused Harish was apprehended, from whose possession 9 (nine) rubber stamps of different offices / Department were recovered and accused Vijay Kumar was also arrested from whose possession six passports no. W-455807 (Name : Kanwaljit Singh), S-815578 (Ashok Kumar), X-1999883 (Vijay Kumar Verma), A-280954 (Vijay Kumar Verma), Y-386514 (Jaswant Singh) and A-269317, which were issued from RPO, Delhi, Jallandhar, Delhi and 3 Chandigarh. Upon completion of investigation, charge sheet was filed against 5 accused for offence u/s 468/471/473/420/120 B IPC.
3. After filing of the charge sheet, accused Hussain Babu and Rajender did not appear in the court and they were declared "Proclaimed Offender" on 26.04.94 and accused "Gopi" was also declared Proclaimed Offender on 21.08.96.
4. CFSL report was filed in the court, copy of all documents were supplied to accused and vide order dated 29.10.99 of Ld. Predecessor of this Court, accused Mohd. Sadat Ansari was discharged, whereas charge for offence u/s 120-B, 466, 473, 485 IPC was framed against accused Harish and charge for offence u/s 120-B, 466/474 and 484 IPC was framed against the accused Vijay Kumar, to which both the above accused pleaded not guilty and claimed trial.
5. In order to substantiate the charge, prosecution has examined 12 (twelve) witnesses. PW1 Constable Shiv Mohan, who says on 10.02.91, he along with SHO, SI Rajiv Rattan, ASI Kashmira were1 present for arrangements and secret information regarding selling of passport was received. Raiding party was constituted, no public person agreed to join raiding party despite requests. Thereafter, raiding party reached "Kodia Pul" where "Nakabandi" was kept and two persons came, who were apprehended upon pointing out by secret informer. Their name upon enquiries revealed to be Hussain Babu and Mohd. Sadat. PW1 further says accused Hussain Babu was carrying one bag from which two passports, some stamp and other articles were found. Those articles were kept in "Pullanda" (Packet) and sealed with seal "RRM" and were taken in possession vide memo Ex. PW1/A. PW1 further says accused Mohd. Sadat was having one white envelope containing two passport; which was also kept in sealed pocket and taken in police possession vide memo Ex.
4PW1/B. CFSL form was also filed. PW1 says thereafter 'tehrir"
was prepared, which he took to PS and after getting FIR registered came back at the spot and handed over copy of FIR to IO. Accused Hussain Babu thereafter made disclosure statement Ex. PW1/C and thereafter accused Hussain Babu, got arrested. Accused Gopi was arrested from Gole Market from whose possession also few passports were recovered, which were sealed and seized by ASI Kashmira vide memo Ex. PW1/D. PW1 also testifies that on 12.02.91 he was along with IO, in the course of investigation, stamp maker Harish was arrested on disclosure statement of already arrested acccused, and some stamps were recovered from possession of accused Harish, which were seized vide memo Ex. PW1/E and kept in sealed packet. Further evidence of PW1 was deferred, which was however, never completed.
6. PW2 is SI Kashmira Singh, who was also in raiding party on 10.02.91, when accused Hussain Babu and accused Mohd. Sadat were apprehended. PW2 says he apprehended accused Sadat Hussain. PW2 also states about recovery of passports and stamps etc; as it came in evidence of PW1. PW2 further says upon disclosure statement of accused Hussain Babu, accused Gopi was arrested, pointing out memo was Ex. PW2/A and personal search memo of accused Gopi is Ex. PW2/B. PW2 also states about arrest of accused Harish, Vijay and Rajinder. PW2 says that he does not remember else about the case, as it is old case. In the course of evidence of PW2, witness was allowed to be cross-examined by ld. APP for State and in his cross- examination, PW2 admits six passports were recovered from accused Vijay, details of which are mentioned in seizure memo Ex. PW2/C and those passports were kept in packet and sealed with seal RRM. PW2 also admits that from possession of accused Harish Nine Ruber Stamps were recovered which were of 5 Superintendent, RPO, Consulate General of India, Toranto, RPO Chandigarh, Delhi, Kathmandu, US Embassy and Assistant Engineer PWD. All those stamps were taken in police possession vide memo Ex. PW1/E. PW2 also proved case property i.e. four passports Ex. P1 to P4 (two passports were released to accused Vijay on superdari). PW2 also proved other case property i.e. Nine rubber stamps as Ex. P5 to P14. PW2 was duly cross-examined by defence, which will be discussed litter later.
7. PW3 is ASI Nahal Singh, who was also member of raiding party, who apprehended accused Hussain Babu and Mohd. Sadat. Evidence of PW3 is on same facts as PW1 and PW2. PW3 testifies that above said accused were arrested by IO / SI Rajiv Rattan. PW3 was also allowed to be cross-examined by ld. APP for State. PW3 in cross-examination admits that accused Hussain Babu made disclosure statement Ex. PW1/C and both above accused got apprehended accused Gopi Nathan, who made his disclosure statement Ex. PW3/A. Accused Gopi got recovered 5 passports with 4 fake visa and 10 stamps of Regional Passport Office of Chandigarh. Recovery memo is Ex. PW3/B. PW3 further says in cross-examination by ld. APP for State that on 12.02.91, accused Harish was arrested on pointing out by accused Hussain Babu and accused Harish made disclosure statement Ex. PW2/A and at his instance 9 rubber stamps were recovered of different offices, which were taken in police possession, in sealed packet vide memo Ex. PW1/E. PW3 also admits that accused Vijay was apprehended upon pointing out by accused Gopi, who was interrogated and arrested. Accused Vijay also stated to have made disclosure statement, in pursuance to it, accused Vijay got recovered six passports, which were taken in sealed packet vide memo Ex. PW2/C. PW3 also admits in his cross-examination by ld. APP for State, accused Rajender was also apprehended from whose possession 6 more passports were recovered and taken in 6 possession vide memo Ex. PW3/C. Disclosure statement of accused Rajinder Singh is Ex. PW3/D. PW3 further testified that out of all culprits, to accused are in court, however, he could not tell their name. Case property Ex. P1 to P14 was identified by the witness. PW3 was also cross-examined by counsel for defence.
8. PW4 is SP Gupta, from Regional Passport Office, Delhi, who gave report in letter Ex. PW4/A. PW5 is SI RK Jha, who registered FIR Ex. PW5/A on 10.02.91 upon receipt of rukka from IO / SI Raju Rattan. PW6 is Dr. M.A. Ali, Senior Scientific Officer of CFSL, CBI, Delhi, who states that documents of this case was submitted by SHO for examination and PW6 gave his report on those documents Ex. PW6/A.
9. PW7 is Inspector Gurcharan Dass, who was posted as SHO of PS Towan Hall on 10.02.91. PW7 was also member of raiding party. PW7 says that he along with SI Rajiv Rattan, ASI Kashmira and other were present near "Sunheri Masjid" for arrangement of cycle rally. PW7 says secret information was received to SI Rajiv Rattan that two persons who fabricated passports will come to "Koriya Pul". PW7 says upon receipt of information, raiding party was contituted and 4/5 public persons were asked to join raiding party but none agreed. PW7 further says that at 12.15 PM, upon pointing out by secret informer accused Hussain Babu and Sadat Ansari were apprehended. PW7 thereafter deposed about recovery of passports and stamps, which was seized by police from them vide memo Ex. PW1/A and Ex. PW1/B respectively.
10. PW8 is Vijay Kumar, from Regional Passport Office, Chandigarh, who proved verification report Ex. PW8/A on passports, recovered from accused person and stated to be issued from RPO Chandigarh and stated to be issued from RPO Chandigarh. PW9 is Denis Crepault, Second Secretary in Canadian High Commission. PW9 says Mr. J.F. MacEacheen, 7 was Secretary, Immigration Central Officer of Canadian High Commission in New Delhi in year 1991. PW9 says that he had seen him writing and signing. PW9 proved report of John F. MacEacheen Ex. PW9/A and specimen signature of his signature Ex. PW9/B.
11. PW10 is Inspector Rajiv Rattan, IO in this case, who also deposed about of receipt of secret information regarding person dealing in fake passport and thereafter, constituting of raiding party and then apprehending of accused Hussain Babu and Mohd. Sadat Ansari and recovery of passports and rubber stamps. PW10 than proved his complaint Ex. PW10/A, on the basis of which FIR was registered. PW10 further says both the above accused made disclosure statement Ex. PW1/C and Ex. PW1/D, in pursuance of which, PW10 along with above accused apprehended accused Gopi Nathan in Gole Market from whose possession five passports were recovered which were seized vide memo Ex. PW1/E and PW10 further says than they went to Rajendra Place, in search of accused Harish. One person standing near Red Colour Box at Red Light, was pointed out by accused to be Harish vide memo Ex. PW10/B. Accused Harish was than apprehended, who made disclosure statement Ex. PW10/C and accused Harish took out nine rubber stamps from box, impression of those stamps were taken on documents Ex. PW10/D1-D4. Stamps were seized in sealed packet vide memo Ex. PW1/E. PW10 further says that accused Vijay was spotted upon pointing out by accused Gopi at Connaught Place, vide memo Ex. PW10/E, accused was arrested, who made disclosure statement Ex. PW2/C and produced six passports which were taken in police possession vide memo Ex. PW2/E. PW10 thereafter deposed about arrest of accused Rajinder and proved his disclosure statement and recovery of six Indian and 3 British Passports from him vide memo Ex. PW2/F. 8
12. PW10 stated to have taken specimen signatures of accused Hussain Babu, for comparison on sheet Ex. PW10/F. British passports stated to have been sent to British High Commission and verification report mark A was collected. Report of Canadian High Commission is Ex. PW9/A, report of RPO Delhi is Ex. PW6/A and RPO Chandigarh is Ex. PW8/A.
13. Upon completion of evidence, statement of accused Vijay and Harish was recorded, wherein all incriminating evidence were put to these accused, who denied the evidence. Accused Vijay has taken the plea that two passports were recovered from my possession which belonged to him. One was expired and other was valid. No other passport was recovered from his possession. Accused Vijay further says that he is innocent and has been falsely implicated in this case.
14. Accused Harish, while denying all prosecution evidence, has taken the plea that he is running business of stamp making on payment. Police apprehended him and took to police station and got prepared some stamps from him forcibly. Thereafter, police implicated him in this case and nothing was recovered from his possession.
15. Vide order dated 02.03.07, Ld. Predecessor of this court upon application u/s 311 Cr. PC, allowed prosecution to lead additional evidence. PW11 is IM Sabharwal, Superintendent from Ministry of External Affairs, Regional Passport Office, who states that stamps and other record related to them, have already been destroyed, as per Ministry instructions. PW11 also says stamps and seal of their office, never goes out of office and used for official purposes. PW12 is BK Kalia, from Regional Passport Office, Jalandhar, who states that passport no. U-041781 was issued in name of Guru Ditta S/o Shingara on 24.04.83. PW12 also states that since original record has been destroyed, therefore he cannot says whether other passport was issued from 9 their office.
16. Upon recording additional evidence, supplementary statement of accused was recorded, wherein evidence was simply denied.
17. NO evidence was led in defence.
18. I have Ld. APP for the State & Ld counsel for accused. It is argued by Ld. APP for state that prosecution has successfully proved it's case. It is stated that so far as the accused facing trial there is complete chain of evidence connecting them with crime charged. It is submitted that from evidence of witnesses recovery of passport & fake rubber stamp is established, therefore in view of Section 103/ 106 Evidence Act, onus was on accused to explain the due possession of passport & other incriminating material from them, but they have failed to give any explanation which is another link to connect the accused with crime. On the other hand it is submitted by Ld counsel for accused that prosecution has to stand on it's own leg & to prove it's case which it could not prove. It is submitted that none of the public person in whose name passport, allegedly recovered, have been examined. It is submitted that accused Vijay, is travel agent & it was obvious for him to have passport with him. It is argued that there has been contradiction in evidence of witnesses & thus recovery has not been proved. More over offence of forgery has not been proved against accused.
19. Having heard submissions at bar & having gone through the record carefully. It is appropriate, at the out set to mention that there is well established legal proposition, that it for prosecution to prove it's case beyond doubt. Prosecution has to stand on it's own legs. If there is no evidence or insufficient evidence which does not completely connect the accused with commission of crime, then accused is entitled to acquittal. Keeping note of established legal proposition, if we appreciate 10 facts & evidence present case, as discussed above, originally five accused were charge sheeted by police namely Hussain Babu, Rajender Singh & Gopi Nathan Nair (who have since been declared proclaimed offender), & Mohd. Sadat Ansari ( Since discharged). Accused Harish Kumar & Vijay Kumar have faced trial. Precisely it is alleged that from possession of accused Harish Kumar nine rubber stamps of different offices/ departments were recovered. Originally accused Hussain Babu & Mohd. Sadat Ansari were apprehended with different passports & upon their disclosure statement accused Gopi was arrested in Gole Market from whom five passport were recovered. Thereafter accused Gopi made disclosure statement in which name of accused Harish Kumar surfaced & accused Harish was arrested in Rejendra Place Red Light near Red colour box, & above recovery of stamps was effected. Than accused Vijay was also arrested upon disclosure statement of other accused & from accused Vijay six passports were recovered details of which has been given earlier. Now question for consideration is whether prosecution has been able to prove charge against accused Harish & Vijay. In this regard though evidence recorded as a whole was discussed above but so far as against accused Harish Pw 1 has deposed that on 12/2/91 he was with IO when stamp vendor Harish was arrested on disclosure statements of other accused. Pw 1 states about recovery of stamps from his possession. But evidence of Pw 1 can not considered as not completely recorded as on 17/7/01 his part of evidence was recorded & than daffered. But was never completed so evidence of Pw 1 is out of consideration being incomplete. Than comes Pw 2 Kashmira whose examination in chief is also most confusing leads no where. However Pw 2 was allowed to be cross examined by APP for State & in his cross examination Pw 2 has admitted recovery of passports from accused Vijay. It is in evidence of Pw 11 3 ASI Nahar Singh when he was also allowed to be cross examined by APP for State, testified that accused Gopi made disclosure statement Ex Pw3/B. Pw 3 also admits that IO arrested accused Harish on pointing out by accused Hussain Babu & accused Harish made disclosure statement Ex. Pw 2/A & in pursuance of which nine rubber stamps having impression of RPO, Consulate General of India etc. were recovered from accused Harish.Recovery memo is Ex. Pw1/ E. Similarly in evidence of P w 10 Rajeev Rattan, facts regarding recovery of nine stamps from accused Harish were corroborated. From appreciating their evidence, it is evident that recovery of nine stamps is proved because, Document Ex Pw 1/E recovery nine rubber stamps is proved, beside this impression of those stamps have been in documents Ex. Pw 10/ D1 to D4. Perusal of these documents would clearly show that rubber stamps of different important offices, were recovered. Perusal of cross examination Pw 3 & Pw 10 would show that nothing substantive could come on record rendering their testimony to be unreliable. No doubt whole recovery proceedings is not in presence of independent witnesses. But this aspect makes the court to be more cautious & circumspect, while assessing the facts. Court in such situation is required to critically examine & appreciate evidence on record. In case of Ravindran alias John 2007 Cri LJ 3414 the Supreme Court has considered in detail the issue of non-examination of independent witnesses or hostility of independent witnesses and placing reliance only on the testimony of official witnesses while taking into consideration catena of earlier Supreme Court judgments held that "Even where independent evidence is not examined during the course of the trial, the effect is that the evidence of the official witness may be approached with care and caution".
20. In present case also evidence regarding recovery even if 12 critically examined does hold ground specifically when it is supported from the fact it self that such stamps can not be available in open for all & sundery. This fact get corroboration from evidence of Pw 11 who has specifically testified that rubber stamps Ex. P5 to P 14 can not be avialbale in open market. One can not make easily have access of stamps of such important offices like Reginal Passport office, High Commissions etc.. In present case perusal sheets having impression of recovered stamps Ex. Pw 10/D1 to D4 would clearly indicate that stamps are fabricated. Another important aspect regarding recovery of rubber stamps is defence of accused. Accused has taken the plea in his statement of accused recorded u/s 281/313 Cr.P.C that police has planted these rubberier stamps on him after getting it prepared from him forcibly. Thus on face of it accused admits that these stamps were prepared by him. Now question whether it were forcibly got prepared by Police, accused has not led any evidence despite having opportunity. It is important to note that no doubt accused in a criminal prosecution if asserts, any fact, he is not like prosecution, required to prove that fact beyond doubt rather he is only to prove such facts by preponderance of probabilities. Thus onus to prove a fact on accused is on lesser degree but this does not mean that when accused chooses to assert a particular fact he is not obliged to prove it. No doubt initial onus & un transferable onus of proving case is always on prosecution but when such onus has been discharged than it is for accused to prove those facts which are exclusively in his knowledge to establish his innocence or any legal exception. For this purpose provisions of Section 105 & 106 Evidence Act have been prepared. Sec.105 of Indian Evidence Act provide: "When a person is accused of any offence, the burden of proving the existence of circumstances bring the case within any of the general exceptions in Indian Penal Code or within any special 13 exception or proviso contained in any other part of same code or in any law defining the offence is upon, the court shall presume the absence of such circumstances."
21. So general rule in criminal proceeding is that burden of proving the offence against the accused lies on prosecution and it has to prove all ingredients of offence alleged beyond reasonable doubt. Sec.105 of Act lays down important qualification to rule that every thing essential to establishment of charge against accused lies upon the prosecution and Sec.105 provide that whenever any accused of an offence wishes to take advantage of any general exception of I.P.C. or other special exception or proviso of I.P.C. or any other law defining the offence, then burden of proving existence of circumstances bring the case in such exceptions lies on accused and court shall presume the absence of such circumstances. Sec.106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Sec.106 is an exception to general rule enshrined in Sec.101 and lays down that where the subject matter of allegation lies peculiarity within the knowledge of one of the party that party must prove it. The Supreme Court, in Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404, considered the application of Section 106 in criminal cases and, after laying stress on the word `especially' appearing in that section and pointing out that the section is an exception to Section 101 which places the burden of proving a criminal charge fairly and squarely on the prosecution, Supreme Court has observed:
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certain not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the 14 knowledge of the accused and which he could prove without difficulty or inconvenience."
22.Coming again now to facts of present case , as discussed above it was for accused Harish to explain how & in what circumstances such rubber stamps came in his possession. If he asserts that police got it forcibly prepared from him, it was also for him to establish this , even if prima facie or by preponderance of probabilities. But merely alleging some thing in defence is not sufficient. Specifically when recovery of illegal rubber stamps from accused has been proved. In view of the above facts and circumstances of the case, it is well established on the record that accused Harish fabricated the rubber stamps of different public offices and thus committed the offence within the meaning of section 466 Cr. PC as the ingredients of the aforesaid offence are fully established. Similarly offence u/s 473 IPC is also made out in view of the possessing fabricated seals in order to commit offence of forging the passports and other documents and in the same terms, I find that ingredients of section 485 IPC is also made out.
23. Coming now to the case with regard to the accused Vijay as discussed above the precise allegations against the accused Vijay is that he was apprehended by the police upon pointing out by accused Gopi and thereafter upon disclosure statement accused Vijay, got recovered six passports, which were taken into possession vide memo Ex. PW2/C, the details of which has been mentioned in the charge. The evidence in this regard is in the shape of PW2 SI Kashmira, who has testified in cross- examination by ld. APP for Statethat six passports were recovered from the possession of accused Vijay as per details mentioned in seizure memo Ex. PW2/C. Similarly PW3 is SI Nihal Singh has also testified that accused Vijay was apprehended upon the pointing out of accused Gopi and upon 15 interrogation accused Vijay made the disclosure statement and in pursuance thereof, he got recovered six passports, which were taken into police possession vide memo Ex. PW2/C. The aforesaid recovery of passports from the accused Vijay is also corroborated from the evidence of IO / PW10 Inspector Rajiv Rattan. Moreover, the aforesaid evidence is also getting corroboration from the evidence of PW4 and PW8. I have carefully gone through the evidence, I do not find any thing substantiate could come out in cross-examination of these witnesses rendering their testimony to be unreliable on material part of the recovery of passports from the accused. No doubt PW2 and PW3 have testified certain facts in the cross-examination by ld. APP for State. But as discussed above there is established legal proposition that even if a witness who has been declared hostile and has been allowed to be cross-examined by ld. APP for State that does not mean that his statement has to be rejected as a whole. If any particular fact has been duly proved even in the evidence of hostile witness, court can rely upon such evidence. In the present case also evidently PW2 and PW3 were the official witnesses and it is a matter of record that they came to give evidence after much time, therefore, even if they had not properly given their evidence in examination in chief but these witnesses admitted the material facts regarding recovery of passports from accused Vijay and nothing could come out in the cross- examination of these witnesses by defence. Therefore, I am of the view that recovery of passports is well established from the accused Vijay.
24. Matter can be appreciated another angle that accused Vijay in his statement of accused recorded as per section 281/313 Cr. PC has taken the plea that two passports were recovered from his possession which belonged to him out of which one was expired and other was valid. He also states that 16 no other passport was recovered from his possession. This plea on the face of it is also not acceptable because even taking the plea of the accused on the face of it, if two passports were belonging to accused Vijay, out of which one was expired and other was valid, as per the Passports Rules and Acts, if one passport expire then the Passport Authority issues another passport only after taking back the expired passport into its passport. It is not possible for anybody to keep two passports copies in his possession out of which one expired and other is valid. As per rule, when a person applies for renewing or issuing new passport, he is required to surrender the earlier expired passport with the authority and authority after verifying all the documents in this regard issue valid / new passport. Therefore, the plea of the accused on the face of it is not acceptable. Coupled with the fact that in view of the judgment in Narsimha Murari Vs. State of West Bengal 1977 Criminal Law Journal 961, passport is a property and no one can possess the passport of other except with the Valid Written Authority. In the present case, once it is established that accused was found in possession of six passports of different persons. It is also established that defence of the accused is not unacceptable then it was for the accused to given explanation as to under what circumstances he was possessing passports of different persons, in view of the of the section 106 of Evidence Act. Accused has failed to give any explanation in this regard thus when accused has failed to explain regarding possession of 4 passports of different persons besides two passports of his own then adverse inference can be drawn against the accused for keeping those passports for the purpose of forging and fabrication, within the meaning of section 466 Cr. PC and section 474 IPC as I find that for the purpose of aforesaid sections it has been established on the record that above passports were forged and fabricated and accused was 17 possessing them for illegal activities. However, I find that offence u/s 485 IPC is not made out as against the accused Vijay because accused could not be found in possession of any instrument for counterfeiting the property marks, therefore the ingredients of section 485 IPC is not established as against the accused Vijay.
25. Now question for consideration is that whether the offence of criminal conspiracy as Punishable u/s 120-B IPC is made out or not.
26. Section 120-A of Indian Penal Code has defined "Criminal Conspiracy" as:
"When two or more persons agree to do or cause to be done:
(i) an illegal act,
(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
27. Provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides one or more parties to such agreement in pursuance thereof do the agreement.
Explanation : It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object."
So the essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be expressed or implied. The conspiracy arises and the offence is committed as soon as the agreement is made. The actus reus in a conspiracy is the agreement to execute the illegal conducts not the execution of it.
28. Following are the ingredients of the offence of conspiracy:
(1) There must be an agreement between two or more persons who are alleged to conspire.
(2) The agreement should be to do, or cause to be done:
(i) an illegal act 18
(ii) an act, which is though not illegal-by-illegal means.
In view of proviso, distinction is drawn between an agreement to commit an offence and an agreement of which either object or means employed are illegal but does not constitute the offence. In case of an agreement is necessary. But in case of an agreement to do an act, which would not amount to an offence, some overt act besides the agreement must be proved to establish the charge of criminal conspiracy.
29 In State of Kerala V P. Sugathan, 2000(4) Recent Criminal Reporter 369 - Supreme Court while discussing offence of criminal conspiracy and provision under Section 10 of Indian Evidence Act observed:
"Offence of criminal conspiracy can be established by direct evidence or by circumstantial evidence. Section 10 Evidence Act introduces the doctrine of agency and will be attracted only when court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence.... To prove criminal conspiracy, there must be evidence direct or circumstantial to prove that there was an agreement between two or more persons to commit an offence, there must be the meeting of mind resulting in ultimate decision taken by conspirator regarding commission of an offence and where factum of conspiracy is sought to be inferred from circumstances, prosecution has to show that circumstances giving rise to conclusive and irresistible inference of an agreement between two or more persons to commit an offence.... A few hits her and few hits from there, on which prosecution relies cannot be held to be adequate for connecting the accused with commission of crime of criminal conspiracy. The circumstances relied for drawing an inference should be prior in time than actual commission offences in furtherance of alleged conspiracy.... Law of conspiracy in India is in line with the English law by making an 19 overt act inessential when conspiracy is to commit any punishable offence"
Section 120-B of Indian Penal Code provides for the punishment of offence of criminal conspiracy.
30.In present case there being no evidence of any agreement between accused Harish & Vijay or other accused. There being no evidence direct or circumstantial to prove that there was an agreement between these two or more persons to commit an offence nor it is proved that these accused were working in coordination with each other. Mere apprehension of accused at instance of each other is no sufficient to prove the case of criminal conspiracy.
31. In view of the aforesaid discussions, I find that section 120- B IPC as against the accused Harish and Vijay is not established beyond doubt. Therefore, both of the accused are being acquitted for charge u/s 120-B IPC and accused Vijay is also acquitted for Section 485 IPC.
Announced in open court
on 02.01.09 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
20
FIR No. 33/91
PS : Chandni Chowk
U/s : 420/466/474/120-B IPC
12.01.09
Present : ld. APP for State.
Convict Harish and Vijay with counsel.
ld. APP for State submits that for setting good example for other accused, who were declared Proclaimed Offenders sever punishment be awarded to the convicts. On the other hand, it is submitted by ld. Counsel for convicts that convicts are not habitual offenders, moreover there is no criminal background. While placing on record the affidavits of both the accused / convicts to the effect that they are old age and sole bread earner in the family and having different ailments like hypertension and heart disease. It is submitted that both convicts are entitled for probation as their case is cover within section 360 Cr. PC as well as Section 4 of Probation of Offenders Act, 1958. It is submitted since the convicts are old aged person and sole bread earner in the family, therefore a sympathetic approach may be taken specifically in the present case, in which trial remained pending since 1991 and accused person have face the agony of trial for about 17 years.
Having heard the submissions at bar and having gone through the record carefully. Apparently as per my judgment accused Harish has been convicted for offence u/s 466/473/485 IPC, the maximum punishment of which is 7 years or above. On the other hand accused Vijay has been convicted for offence u/s 466 as well as 474 IPC. Keeping in view the fact that as per the affidavits are placed on record, accused are old aged person and suffering from different ailments and accused have no previous criminal background, I find that even for offence u/s 474 IPC qua accused Vijay, both the accused are entitled for probation u/s 4 of the Probation of Offenders Act, 1957, in view of the judgment of Hon'ble 21 Supreme Court in case titled as Dalbir Singh Vs. State of Haryana, AIR 2000 SC 1677, wherein it was observed that :-
If the court form the opinion that it is expedient to release the offender on probation for his good conduct regard being had to be circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Thus section 4 can be restored to when the court considers the circumstances of the case, particularly the "nature of the offence" and the court form its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct.
Consequently, both the accused are being granted probation with the direction to keep peace and tranquility subject to their furnishing Probation bond in the sum of Rs. 10,000/- with one surety of the like amount with directions to accused / convicts that they are to appear before Probation Officer as and when directed in this regard and not to commit any criminal offence.
While exercising the power under section 5 of The Probation of Offenders Act, 1958, convicts are also directed to pay a sum of Rs. 3000/- each as amount of fine. Fine paid. Probation bond furnished and accepted. Intimation in this regard be sent to Probation Officer.
File be consigned to record room.
Announced in open
court on 12.01.09 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi