Delhi District Court
State vs . Umesh Kumar & Anr. on 24 October, 2013
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTHEAST), SAKET COURTS:NEW DELHI
State Vs. Umesh Kumar & Anr.
FIR No. 387/2006
U/s 120B/419/468/471 IPC
P.S. Kotla Mubarak Pur
J U D G M E N T
Serial No. of the Case : 711/2
Unique Identification No. : 02406R0347872010
Date of Institution : 03.08.2006
Date on which case reserved for
judgment : 10.10.2013
Date of judgment : 24.10.2013
Name of the complainant : Smt. S. Rastogi, Principal
K.V. S., INA, Vikas Sadan.
Date of the commission of offence: 04.06.2006
FIR No. 387/2006
P.S. Kotla Mubarak Pur Page No.1 of 17
Name of accused : (i) Kumar Ashish
s/o Sh. Rajiv Ranjan Sinha
r/o BG1/8, DDA, SFS Flats, Paschim
Vihar, New Delhi
(ii) Umesh Kumar
s/o Sh. Jai Ram Singh
r/o VillageParari, P.S. Shiv Sagar
DistrictRohtash, Bihar
Offence complained of : U/s 419/468/471 IPC read with
Section 120B IPC
Offence charged of : U/s 419/468/471 IPC read with
Section 120B IPC
Plea of the accused : Pleaded not guilty.
Final order : Accused Umesh Kumar is convicted
for the offence punishable U/s 465 IPC.
Accused Kumar Ashish is acquitted of
the offences charged in the present case.
Date of Institution : 03.08.2006
Date on which case reserved for
judgment : 10.10.2013
Date of judgment : 24.10.2013
FIR No. 387/2006
P.S. Kotla Mubarak Pur Page No.2 of 17
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
As per prosecution case, on or before 04.06.2006 at unknown time and place, both the accused persons, namely, Kumar Ashish and Umesh Kumar entered into a criminal conspiracy. On 04.06.2006 between 02:00PM to 05:00PM at Kendriya Vidyalaya, INA, in pursuance of the criminal conspiracy, the accused Umesh Kumar appeared in the M.B.B.S. Entrance Examination of IP University in place of accused Kumar Ashish. Thereby accused Umesh Kumar impersonated accused Kumar Ashish. The accused Umesh Kumar also put his signature on the documents Q1, Q1/1, Q1/2 & Q1/3 etc. as Kumar Ashish.
The accused Umesh Kumar was apprehended at the spot. The police was informed. The documents signed by the accused Umesh Kumar along with other documents were handed over to the police.
2. The report U/s 173 Cr. PC was filed on 03.08.2006. Cognizance of the offences was taken. Compliance of Section 207 Cr. PC was done.
3. Separate Charges for the offences punishable U/s 419/468/471 IPC read with Section 120B IPC against both the accused were framed on 05.08.2011. Both the accused pleaded not guilty and claimed trial. FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.3 of 17 PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined four (4) PWs in all.
PW1 Smt. S. Rastogi (the then Principal, Kendriya Vidyalaya, INA) stated, on the date of incident I was principal Kendriya Vidyalaya, INA, New Delhi. On that day, one person was appearing on behalf of some other person, in the Medical Entrance Examination. I cannot identify that person.
(With permission of the Court, Ld. APP crossexamined the witness) PW1 stated, it is true that on 04.06.2006 between 02:00PM to 05:00PM the MBBS Entrance examination was going on at Kendriya Vidyalaya INA, New Delhi. One Umesh Kumar was impersonating Kumar Ashish. The said Umesh Kumar was apprehended and handed over to Ct. Madan Lal. I also handed over the documents belonging to the accused Umesh Kumar and Kumar Ashish.
During crossexamination by Ld. Counsel for accused Kumar Ashish, PW1 stated, it is true that I was present in the control room only and did not go to the examination hall. The invigilator concerned, on duty told me about the incident and brought the accused to my office. I do not remember the name of the said invigilator.
(Accused Umesh Kumar adopted the crossexamination conducted on behalf of accused Kumar Ashish.) PW2 HC Madan Lal stated, on 04.06.2006 I was posted at P. S. Kotla Mubarak Pur as Constable. On that day, I was deputed at Kendriya Vidayalaya, INA, FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.4 of 17 New Delhi. MBBS entrance examination was going on from 02:00PM to 05:00PM and my duty was at outside gate of aforesaid vidyalaya. In the meantime, orderly of that school came and told me that the principal was calling me. I went to the office of principal, she handed over to me one person namely, Umesh Kumar. She further told me that Umesh Kumar was appearing in the examination on behalf of Kumar Ashish. The principal handed over a written complaint to me. Thereafter I called the local police station. SI R. S. Pandey came to the spot. I handed over the accused along with complaint to him. IO arrested the accused and conducted his personal search vide memos Ex.PW2/A & Ex.PW2/B respectively. I identify the accused Umesh present in the court today.
(Learned Defence Counsel did not dispute identity of accused Kumar Ashish.) (With permission of the Court, Ld. APP crossexamined the witness) PW2 stated, it is true that the principal handed over to me, the admit card of Kumar Ashish and one photocopy, original answer sheet and same were seized by the IO vide memo Ex.PW2/C. During crossexamination by Ld. Counsel for accused Kumar Ashish, PW2 stated, I did not give any duty slip to the IO. I do not know who was the invigilator. Accused Umesh Kumar was arrested at the spot at about 03:30 PM.
(Accused Umesh Kumar adopted the crossexamination conducted on behalf of accused Kumar Ashish.) FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.5 of 17 PW3 Sh. T. Joshi (FSL Expert) examined the exhibits and the specimens sent for FSL examination. His detailed FSL examination report is Ex.PW3/P. Original answersheet is Ex.PW3/A. The Admission Form of accused Kumar Ashish is Ex.PW3/B. The original Admit Card of accused Kumar Ashish is Ex.PW3/C. The first page of the original Test Booklet is Ex.PW3/D. The specimen signatures of accused Umesh Kumar Marked S1, S1/1 to S1/4 are Ex.PW3/E to Ex.PW3/I. The specimen writing of accused Kumar Ashish MarkS2, S2/1 to S2/5 are Ex.PW3/J to Ex.PW3/O. PW4 retired SI R. Y. Pandey (IO of this case) stated, on 04.06.2006 I was posted at P.S. Kotla Mubarak Pur. On that day, Ct. Madan Lal came to the police station and gave to me a written complaint of Smt. S. Rastogi, Principal Kendriya Vidyalaya, INA Colony. He also produced accused Umesh Kumar before me. I made endorsement Ex.PW4/A on the complaint of the principal and the present case was got registered. I left Ct. Madan Lal at the police station along with accused. I went to the Office of Principal, Kendriya Vidyalaya, INA Colony and met the principal. She narrated the whole incident to me. The principal gave to me the documents i.e. admit card of Ashish Kumar, attendance sheet and answersheet, the same were seized vide memo Ex.PW2/C. Thereafter invigilator Sh. A. K. Singh met me. I recorded his statement. Thereafter I returned to the police station. I arrested the accused Umesh Kumar and conducted his personal search vide memo Ex.PW2/A & Ex.PW2/B respectively. I along with Ct. Madan Lal went to Paschim Vihar to FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.6 of 17 search for accused Ashish but he could not be traced. I took specimen signatures of accused Umesh vide memos Ex.PW3/E to Ex.PW3/I. I recorded the statement of witnesses, prepared the challan against accused Umesh and filed the challan before the Court.
Later after 23 months, accused Kumar Ashish met me. I arrested him and conducted his personal search vide memo Ex.PW4/B & Ex.PW4/C respectively. I obtained specimen signatures of accused Kumar Ashish vide memo Ex.PW3/J to Ex.PW3/O. The supplementary chargesheet against accused Kumar Ashish was filed in this case. Specimen signatures of both the accused persons were sent to FSL Rohini. I can identify both the accused persons, if shown to me.
(With permission of the Court, Ld. APP crossexamined the witness) PW4 stated, I went to I. P. University and Sh. Amar Nath Sharma, Assistant Registrar handed over to me MBBS Form of accused Kumar Ashish. I seized the same vide memo Ex.PW4/D. (Learned Counsels for both the accused persons did not dispute the identity of both the accused persons.) During crossexamination by Ld. Counsel for accused Kumar Ashish, PW4 stated, it is wrong to suggest that the incident did not occur on 04.06.2006 as no examination was conducted on that day. It is true that the document Ex.PW3/D bears the date 02.06.2006 at point Y. It is also true that the document Ex.PW3/D does not bear the signature of invigilator at MarkY1. The point Y1 is FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.7 of 17 blank. It is wrong to suggest that Sh. A. K. Singh was not the invigilator on the date of incident. I did not verify the stay of accused Umesh Kumar in a Hotel at Paharganj. I also did not verify who is Rajeev Yadav. It is true that accused Umesh was also preparing for MBBS entrance examination. Vol. Accused Umesh was already doing MBBS from Uttar Pradesh. Only one paper of the question booklet was given to me by the principal. It is wrong to suggest that both the accused persons have been falsely implicated.
Vide joint statement dated 22.07.2013, both the accused persons admitted the genuineness of the FIR of this case. The same is Ex.PA/1.
PW Sh. A. K. Singh was reported untraceable despite service through DCP concerned. PW Sh. Amar Nath was reported to have expired.
Vide order dated 30.07.2013, PE was closed.
STATEMENT OF ACCUSED :
5. On 29.08.2013 separate statements of both the accused U/s 313 Cr. P.C. were recorded. Both the accused denied all the allegations against them. They did not wish to lead defence evidence.
FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.8 of 17 DEFENCE EVIDENCE :
6. No defence evidence was led by both the accused.
ARGUMENTS :
7. Arguments were advanced by Ld. APP for the State and Ld. Counsels for both the accused persons.
It was argued by Ld. APP for the State that in view of the FSL report it is proved that the signatures Mark Q1 & Q1/2 were written by accused Umesh Kumar. It is further proved that the signatures Q1 & Q1/2 did not match the specimen handwriting of accused Kumar Ashish, whose signatures Q1 &Q2 were supposed to be. PW2 identified the accused Umesh Kumar before the Court. The documents sent for FSL examination have been identified by PW2 & PW4. These documents were produced by the principal PW1. She also stated that she handed over these documents to the police. Both the accused persons have conspired to impersonate. The prosecution has proved its case beyond reasonable doubt.
It was argued by Ld. Counsel for accused Kumar Ashish that PW Sh. A. K. Singh was not examined. PW1 during her crossexamination stated that the said invigilator A. K. Singh told her about the incident. She did not see the incident. None of the documents pertaining to accused Kumar Ashish are on record. The date FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.9 of 17 of incident is allegedly 04.06.2006, whereas the answersheet Ex.PW3/D bears the date 02.06.2006. It also does not bear the signature of any invigilator. There is nothing on record to show that Sh. A. K. Singh was the invigilator on the date of incident. There is no proof to show that PW2 Ct. Madan Lal was on duty on the date of examination. There is no evidence on record to show that the accused Kumar Ashish received the Admit Card. In such circumstances, without having received the same, he could not have given it to the coaccused.
It was argued by Ld. Counsel for accused Umesh Kumar that none of the prosecution witnesses have identified him.
REASONING :
8. Broadly the case of the prosecution is that on the date of incident the accused Umesh Kumar was apprehended at the spot while he was appearing in the MBBS entrance examination and impersonating the accused Kumar Ashish. During this process the accused Umesh Kumar also signed certain documents. At the time of the incident, PW1 Ms. S. Rastogi was the principal of the Kendriya Vidyalaya, INA. Sh. A. K. Singh, the invigilator in the examination hall concerned took the accused Umesh Kumar to PW1. Police (PW2) was called and the accused along with the documents were handed over to him.
FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.10 of 17
9. PW2 stated that he called the local police station and the IO SI R. Y. Pandey reached the spot. The accused and the complaint given by PW1 along with the documents were handed over to PW4.
On the other hand, PW4 stated that on the date of incident PW2 came to the police station and he gave the complaint of PW1. The accused Umesh Kumar was also produced by PW2.
I have perused the complaint Ex.PW1/A. The endorsement Ex.PW4/A is at the bottom of the said complaint. In the said endorsement Ex.PW4/A, there is no mention of the date and time of dispatch of rukka. This would show that the endorsement was not made at the spot. It appears that the sequence of events as stated by PW4 is the correct sequence.
Even otherwise, this sequence of events does not have any material effect on the prosecution case.
10. The main witness in this case was Sh. A. K. Singh, as per the prosecution case at the time of the incident, he was the invigilator in the examination hall. Sh. A. K. Singh apprehended the accused Umesh Kumar and handed him over to the principal. Sh. A. K. Singh was reported untraceable despite service through DCP concerned. Due to this reason, he could not be examined before the Court. Even PW1 did not identify the accused Umesh Kumar before the Court. Although PW2 identified the accused Umesh Kumar before the court, but his knowledge about the identity of accused Umesh Kumar was derived on the basis of information given by FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.11 of 17 PW1. In such circumstances, there is no clear evidence to show or establish that the accused Umesh Kumar was apprehended at the spot on the date of incident.
11. Separate charge for the offences punishable U/s 468/471 IPC read with Section 120B IPC were also framed against both the accused Umesh Kumar & Kumar Ashish.
PW1 stated that she handed over all the documents to PW2 constable Madan Lal. PW2 & PW4 also stated that vide seizure memo Ex.PW2/C the documents produced by PW1 were seized. I have perused the seizure memo Ex.PW2/C. Therein it is mentioned that the admit card of accused Kumar Ashish bearing roll number No.334102, one photocopy of the photograph of accused Kumar Ashish, the original answersheet and one paper of test booklet were seized vide seizure memo Ex.PW2/C. The Admit Card of accused Kumar Ashish is Ex.PW3/C. The original admission form of accused Kumar Ashish is Ex.PW3/B. The original answersheet bearing the roll No.334102 is Ex.PW3/A. The first page of question booklet is Ex.PW3/D.
12. The specimen signature of accused Umesh Kumar are bearing serial No.S1, S1/1 to S1/4, the same are Ex.PW3/E to Ex.PW3/I respectively.
The specimen signatures & handwriting of accused Kumar Ashish are S2, S2/1 to S2/5, the same are Ex.PW3/J to Ex.PW3/O. FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.12 of 17 The questioned writing Q1 is the signature of accused Kumar Ashish, which was allegedly put by accused Umesh Kumar on the original answersheet Ex.PW3/A. The questioned writing Q1/2 is the signature of accused Kumar Ashish which was allegedly put by accused Umesh Kumar on the first page of test booklet Ex.PW3/D. The specimen signatures of accused Umesh Kumar are MarkS1, S1/ 1 to S1/4, the same are Ex.PW3/E to Ex.PW3/I. As per the FSL report Ex.PW3/P, the writings, stamped and marked Q1, Q1/2, S1 & S1/1 to S1/4 were written by one and same person.
As already observed above, questioned writing Q1 & Q1/2 are purported to be the signatures of accused Kumar Ashish, the same were compared with S2, S2/2 & S2/3 (the specimen signatures of accused Kumar Ashish) but as per FSL report Ex.PW3/P, these writings did not match and they were opined not to have been written by one and the same person.
13. Ex.PW3/A the original answersheet bearing the roll No.334102 pertaining to accused Kumar Ashish having the questioned signature Q1 and Ex.PW3/D the first page of the test booklet bears the name of accused Kumar Ashish bearing the roll No.334102 and the questioned signatures Q1/2 were handed over by PW1 to the police, the same were seized vide seizure memo Ex.PW2/C. In view of the FSL report Ex.PW3/P, it is proved beyond reasonable doubt that the accused Umesh Kumar signed these documents at Q1 & Q1/2.
FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.13 of 17
It was argued that Ex.PW3/A & Ex.PW3/D containing the aforesaid writing Q1 & Q1/2 bears the date of examination 02.06.2006, whereas in fact the date of examination was 04.06.2006.
In my considered opinion, both these documents were required to be filled by the candidate appearing in the examination. It has already been proved that these documents bear the signature putting by accused Umesh Kumar. The other contents filled in these documents are exclusively in the knowledge of accused Umesh Kumar. There is every possibility that these dates were filled in by accused Umesh Kumar himself. In view of Section 106 of the Indian Evidence Act, any fact which is exclusively knowledge of a person is to be proved by him. In such circumstances, it is the duty of the accused Umesh Kumar to explain the dates appearing on Ex.PW3/A & Ex.PW3/D.
14. At the cost of repetition it is observed that the accused Umesh Kumar put his signatures at point Q1 & Q1/2 on the documents Ex.PW3/A & Ex.PW3/B respectively. The accused Umesh Kumar signed as Kumar Ashish. It is not the case of the accused that his signatures on these aforesaid documents were obtained forcibly or fraudulently.
Section 464 of IPC provides that a person is said to make a false document where he dishonestly or fraudulently signs a document or a part of it, with the intention to causing it to be believed that the document or part of it, was signed by or by the authority of person or by whose authority he knows that it was got signed. FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.14 of 17
In view of contents of Section 464 IPC, the accused Umesh Kumar has fraudulently put his signatures at Q1 & Q1/2 and thereby made a false document.
15. Section 463 of IPC provides that whoever makes a false document or a part of it with the intention to cause injury to the public or to any person or to support any claim or title or with intention to commit fraud is said to have committed forgery.
Section 44 of the IPC defines injury as any harm illegally caused to any person in mind, body, reputation or property.
Section 11 of the IPC describe a person to include any company or association or body of persons.
As already above, the accused Umesh Kumar has made a false document.
In the facts and circumstances of the case, it is clear that the false signatures were put by accused Umesh Kumar with intention to commit fraud so that he is allowed to appear in the examination in place of accused Kumar Ashish. Due to such fraud injury to the reputation of the authority conducting the examination was caused.
16. PW1 did not identify the accused Umesh Kumar. There is also no other direct or clear evidence that accused Umesh Kumar is the person who appeared in the examination on the date of incident. However, it is proved that the accused Umesh Kumar put his forged signature as Kumar Ashish. Charge for the offence punishable FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.15 of 17 U/s 468 IPC was also framed against the accused Umesh Kumar.
Section 222 Cr.P.C. provides :
"When offence proved included in offence charge(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charted with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offene where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
In view of the facts and circumstances of this case and provisions of Section 463, 464 & 468 IPC, the offence of forgery as defined in Section 463 IPC would be a minor offence and included within the ambit of Section 468 IPC.
17. Charge for the offence punishable U/s 120B IPC was also framed against both the accused persons. It was argued on behalf of accused Kumar Ashish that his Admit Card never reached him. Thus, he did not have the occasion to hand it FIR No. 387/2006 P.S. Kotla Mubarak Pur Page No.16 of 17 over to somebody else. In the facts and circumstances of the case, it would appear that since accused Kumar Ashish would have been the beneficiary of the conspiracy. However, there is no direct or circumstantial evidence to show or prove the existence of conspiracy between the two accused persons. In the absence of such evidence, the prosecution has failed to prove the offence punishable U/s 120B IPC.
18. In view of above discussion, it has been established that accused Umesh Kumar forged the signature of accused Kumar Ashish and thus committed forgery. The prosecution has proved beyond reasonable doubt that the accused Umesh Kumar has committed the offence of forgery, accordingly the accused Umesh Kumar by virtue of Section 222 Cr.P.C. is convicted for the offence punishable U/s 465 IPC. The accused Kumar Ashish is acquitted of the offences charged due to lack of evidence.
19. Let the accused Umesh Kumar be heard on the point of sentence.
Pronounced in open court (RAJINDER SINGH)
on 24.10.2013 MM04 (SouthEast): Saket Courts:
New Delhi:24.10.2013
FIR No. 387/2006
P.S. Kotla Mubarak Pur Page No.17 of 17