Delhi District Court
Mrs. Veena Kumari vs The State (Nct Of Delhi) on 6 May, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Appeal No.9/13
(Unique I.D. No.02406R0055002013)
Mrs. Veena Kumari
W/o Sh. D. Ashokan
R/o H. No. 24, 2nd
Main Gandhi Grama,
Opp. Malleshwaram Railway Station,
Bangalore- 560021 ...........Appellant
Versus
The State (NCT of Delhi) ...........Respondent
Date of Institution :27.02.2013
Date of Pronouncement Order :06.05.2013
ORDER
1. Judgment dated 11.02.2013, by which the appellant was convicted under Section 417 IPC and the order dated 12.02.2013 by which the appellant was released on probation for a period of one year on furnishing a Probation Bond in the sum of Rs. 20,000/-, is under challenge in this appeal.
C.A. No. 9/13 Veena Kumari vs. State 1 /13
2. The grievance of the appellant is that this case was initiated on the complaint of CBI when the appellant had applied to UPSC for the post of Public Prosecutor in CBI wherein she stated her date of birth to be 29.07.1958. It has been stated that neither verification report was produced by the prosecution nor the witness, who had conducted that verification, was examined before the Trial Court by the prosecution. It has been further stated that there is an extreme delay in the conduct of the trial which was initiated in the year 1998 while the judgment was pronounced on 11.02.2013. Further, it has been stated that the defence documents i.e affidavit filed by the appellant herself was not taken into consideration by the Ld. Trial Court for holding the appellant guilty of the offence under Section 417 IPC. Ld. Counsel for the appellant pointed out that FIR number has been wrongly mentioned in the judgment which shows a hasty action on the part of the Trial Court. On these grounds, the judgment of conviction has been assailed.
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3. Per contra, Ld. Addl. PP has supported the impugned order and has stated that four witnesses were examined on behalf of the prosecution before the Ld. Trial Court and that the offence of Section 417 IPC i.e cheating was duly proved and hence the appellant has been rightly convicted by the Ld. Trial Court. Regarding sentence Ld. Addl. PP has stated that Trial Court has already taken a lenient view in this matter by not passing any substantive sentence of imprisonment on appellant and she was released on probation.
4. I have heard both the sides and have also perused the records of the case. So far as the argument that the FIR number has been wrongly mentioned in the impugned judgment dated 11.02.2013 is concerned, it is found that the FIR number mentioned in the judgment dated 11.02.2013 is 347/98 and on the footnote of all the 14 pages of the judgment, FIR No.347/98 has been mentioned. Perusal of the record shows that actual FIR No. is 342/98 and this FIR No. 342/98 has been mentioned C.A. No. 9/13 Veena Kumari vs. State 3 /13 in the order on sentence dated 12.02.2013. Although, Ld. Counsel is right in saying that FIR number has been wrongly mentioned in the judgment dated 11.02.2013 yet it is only a typographical error and nothing turns on this error because the name of the party i.e. State vs. Veena Kumari has been correctly mentioned and it is not the case of the appellant that this error has caused any prejudice to her case. During entire proceedings before the Ld. Trial Court, the trial was conducted of FIR No. 342/98 and not of 347/98. Therefore, the objection raised by the Ld. Counsel regarding mentioning of wrong FIR number in the judgment of the conviction, is not material.
5. Coming to the merits of the case, case of the prosecution, as set out in the charge-sheet before the Ld. Trial Court, was that Dr. Tarsem Chand, Administrative Officer of CBI made a written complaint to SHO, P.S. Lodhi Colony. It was stated that in response to an advertisement issued by UPSC inviting application for the posts of Public Prosecutor in CBI, the appellant had C.A. No. 9/13 Veena Kumari vs. State 4 /13 applied and her name was recommended for being appointed as Public Prosecutor. As per procedure, thereafter, a secret verification was made regarding the character/suitability of the appellant during which it was revealed that the appellant had submitted a false declaration regarding her date of birth. Documents were obtained which showed her date of birth as 29.07.1953 whereas the appellant had claimed her date of birth to be 29.07.1958. On this complaint, FIR No. 342/98 was registered in P.S. Lodhi Colony under Section 420/468/471 IPC on 06.10.1998 and accordingly charge under Section 420/468/471 IPC was framed against the appellant, to which she pleaded not guilty and claimed trial. Before the Ld. Trial Court, prosecution examined four witnesses, namely, PW-1 HC Satish Kumar, who proved the registration of FIR; PW-2 Dr. Tarsem Chand, who proved his complaint on behalf of CBI; PW-3 Dr. R. Somaapa, who proved the date of birth as recorded in Karnataka State Open University, Mysore as 29.07.1953 in the application form Ex. PW3/A and PW-4 Inspector C.A. No. 9/13 Veena Kumari vs. State 5 /13 R.D. Pandey - the IO, who proved the different aspects of the investigation. All the circumstances were put to the appellant when she was examined under Section 313 Cr.P.C in which she replied as under:-
" It is wrong and incorrect that I had applied for the post of Public Prosecutor on the basis of forged and fabricated document i.e false date of birth certificate. I applied for the post on the basis of genuineness documents and submitted my correct date of birth i.e 29.07.1958."
6. In reply to the question No.3, she stated as under:-
"My date of birth as appearing in document Ex. PW-3/F (photocopy is mark 'F') wherein it is reflected that my date of birth is 29th July, 1953 was furnished by my guardian N. Pingalavaniamna at the time of my admission in B.A. Ist Year Correspondence Course Mysore University. However, my true and correct date of birth is 29th July, 1958 which I mentioned in my attestation form at Sr. No. 7. The form was filled by me and it contains my true date of birth. Similarly in the application form I have mentioned my date of birth as 29th July, 1958 at Sr. No. 5. It is wrong and incorrect to suggest C.A. No. 9/13 Veena Kumari vs. State 6 /13 that my date of birth is 29th July, 1953 or that I deliberately furnished forged document before the CBI/UPSC while applying for the post of Public Prosecutor. In the year 1994, I came to know for the first time that my correct date of birth is 29th July, 1958 and accordingly I wrote a letter to Director, Mysore University on 6.10.1994 for correction in my date of birth in respect of my B.A. Degree. The necessary correction was made in the University Register in the year 1994, itself, but no certificate was issued by University to me. I while applying for the post of Public Prosecutor in CBI had given my correct date of birth." (Emphasis supplied)
7. Regarding deposition of PW-3 Dr. R. Somaapa, she replied that he is deposing falsely and deliberately withholding material document wherein correction regarding her date of birth has been made. She herself entered in the witness box as DW-1 and filed photocopies of a petition dated 06.10.1994 which she claims to have sent to Mysore University and two affidavits, all these were mark as 'A', 'B' and 'C'. She also filed a document regarding her age proof as mark 'D'. In her cross-
C.A. No. 9/13 Veena Kumari vs. State 7 /13 examination, she stated that she did not fill up Ex. PW3/A (Form of Application for admission in B.A.) but admitted that the said document bears her signatures. As DW-2 she produced one M. Paramanandam, who claimed to be her relative, who stated that mother of the appellant died after her birth and her father was uneducated and he has celebrated ring ceremony by bringing Astrologer, namely, late Sh. Ramlingum, date of birth given by the father of the appellant to Ramlingum, photocopy of the English translation of date of birth is mark 'D'. He also stated that he had filed an affidavit regarding date of birth of the appellant to Director, Mysore University and copy of the said affidavit was mark 'A'.
8. If the entire depositions led on behalf of the prosecution, the replies given by the appellant in her examination under Section 313 Cr.P.C and the defence witnesses produced by the appellant is examined minutely, it appears that contradictory stands have been taken by the appellant which shows the hollowness of her claim that C.A. No. 9/13 Veena Kumari vs. State 8 /13 she never gave false date of birth in the application form filed before the UPSC for seeking employment as Public Prosecutor in CBI. The upper age limit for the said examination was 35 years for the general candidates and 40 years for the reserved category candidates as on 11.07.1996. The appellant belonged to Scheduled Caste community and if her date of birth of 1953 is taken, then she was 42 years 11 months and 12 days as on 11.7.1996. In other words, taking her date of birth as 29.7.1953, she was overage on 11.7.1996 for the purpose of her candidature with UPSC. However, if her date of birth of 29.7.1958 is taken, then she was 37 years 11 months and 12 days on 11.7.1996 i.e. within the prescribed age. She herself has stated in reply to question No.3 in her examination under Section 313 Cr.P.C that no certificate was issued by the University correcting her date of birth from 1953 to 1958. When she herself knows that no fresh certificate has been issued by the University correcting her date of birth from 1953 to 1958, how can she claim her date of birth to be of 1958 and not of 1953. The appellant C.A. No. 9/13 Veena Kumari vs. State 9 /13 cannot be allowed to approbate and reprobate at the same time. According to University Records which were duly proved by PW-3, her date of birth as recorded in the University Records is of 29.07.1953. He proved the original application for admission in B.A. As Ex. PW-3/A wherein the date of birth of the appellant is recorded as 29.7.1953. There is a declaration, duly signed by the appellant, at the end of the said application form that the particulars given are correct. Ex. PW-3/B is an affidavit of her mother in law in which she declared that the appellant was born on 29.7.1953 and she was present at the time of birth of the appellant. He had specifically denied the suggestion that in the year 1994, date of birth of the appellant was changed from 1953 to 1958. Apart from it, there is one document mark 'G' on record which is a transfer certificate issued by Shri Dharmasthala Manjunatheshwara, Law College, Banglore dated 02.09.1986 in which in column '4' the date of birth of the appellant is shown as '29.07.1958', which is mentioned in letters as well as in words. There are corrections/ C.A. No. 9/13 Veena Kumari vs. State 10 /13 overwriting over the word '8' in words as well as letters. This certificate as noted above is purportedly issued in the year 1986. Ld. Counsel has claimed that the appellant came to know about her actual date of birth of 1958, for the first time in the year 1994. Ld. Counsel for the appellant has not been able to explain as to how the date of birth of 1958 is mentioned on mark 'G' which was issued in 1986. Either the appellant knew even in the year 1986 that her date of birth was 29.07.1958 or she had forged/fabricated this document to make her date of birth from 1953 to 1958 to claim that her actual date of birth was 1958 even when she studied law. The Ld. Counsel for the appellant was at loss of argument on this count. The evidence which has come on record show that the appellant had made false declaration regarding her age when juxtaposed to the age recorded in the records of the University, which makes her liable for having committed the offence under Section 417 IPC. The argument that the Ld. Trial Court has not taken into consideration the documents/affidavits and the defence witnesses while C.A. No. 9/13 Veena Kumari vs. State 11 /13 deciding the complicity of the appellant does not hold water in view of the own admission of the appellant that no certificate was issued by the University to her recording correction in her date of birth as recorded in the University Records from 1953 to 1958. Since the case hinges on documentary evidence, non examination of the person who conducted the verification is not fatal, more so when Section 134 of the Indian Evidence Act proclaims that no particular number of witnesses shall be required in a case for the proof of any fact. Similarly, long trial is also no ground to interfere in appellate jurisdiction when the appellant was found to be guilty by the Trial Court. In sum and substance, I, do not find any good ground to interfere in the conviction of the appellant under Section 417 IPC.
9. So far as the sentence of releasing the appellant on probation is concerned, I find that even this sentence is a mild sentence, keeping in view the offence having been committed by an educated person who has studied and C.A. No. 9/13 Veena Kumari vs. State 12 /13 practiced law. The appellant has not been awarded any substantive sentence and should be satisfied to have been let off on the sentence of undergoing probation for a period of one year.
10. In the net result, there is no merit in the appeal, which is hereby dismissed.
11. TCR be sent back to the concerned court with a copy of this order.
12. File be consigned to the Record Room. Announced in the open Court. (Rajeev Bansal) Dated: 06.05.2013 ASJ-3/South District Saket Courts, New Delhi C.A. No. 9/13 Veena Kumari vs. State 13 /13