Delhi District Court
State vs . Raj Kumar & Ors. on 13 May, 2008
1
IN THE COURT OF SH. RAJ KUMAR
METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI
FIR NO. :12/95
P.S. : Krishna Nagar
U/s : 420/468/471 IPC
State Vs. Raj Kumar & ors.
1. Sl. No. of the case : 185/2
2. Date of institution : 22.05.1995
3. Name of the complainant : SI Manoj Dixit
4. Date of commission of : 08.01.1995
offence
5. Name of accused :i) Rameshwar Dass
S/o.Sh.Ram
Prasad
R/o.63-B, East
Azad Nagar,
Delhi.
ii) Bhagwat Singh
S/o.Sh.Gokal
Singh
R/o.41A/2A,East
Azad Nagar,Delhi.
iii) Raj Kumar
S/o.Sh.Raja Ram,
R/o.1770, Kucha
State vs. Raj kumr & Ors. FIR No.12/95
2
Dakni Rai, Darya
Ganj, Delhi.
ii) Bhagwan Dass
@ Rakesh
S/o.Sh.Dhanram,
R/o.Multi Storey
Building,
Timarpur, Delhi.
Iii) Ajeet Singh
S/o.Atar Singh,
R/o.Village
Shiprani, PS Loni,
Distt. Ghaziabad,
UP.
v) Hasan Tanvir
S/o.Hasan
S.Riyaz
R/o.2790, Gali
Gariyan, Kucha
Chailan, Darya
Ganj, Delhi.
iv) Dinesh Kumar
S/o.Late Sh.Shiv
Raj Singh,
R/o.Village
Gopalpur, PS
Timarpur, Delhi.
6. Offence complained of or proved: 420/468/471 IPC
State vs. Raj kumr & Ors. FIR No.12/95
3
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the order : 12.05.2008
9. Final order : Acquitted
10. Date of such Order : 13.05.2008
JUDGEMENT
1. In brief, the prosecution story was that all the accused persons in connivance with each other committed forgery of the documents of different institutions and universities and charges were framed against them u/s.463/465/473 IPC. However, different charges were framed against all the accused persons differently. The charge against the accused Rameshwar Dass states that on 8.1.1995 at 63-B, East Azad Nagar within the jurisdiction of PS Krishna Nagar he made/prepared false documents i.e. certificate of CBSE bearing no.000012773 and a marksheet of CBSE bearing no.000109950 in the name of decoy customer constable Devender Kumar dishonestly so as to cause wrongful gain to constable State vs. Raj kumr & Ors. FIR No.12/95 4 Devender with intention to commit fraud with the said documents and on the same date, time and place he was found in possession of 50 blocks as described in the seizure memo, rubber stamps and other material and certificate of different institutions and universities for using the same for committing any forgery by preparing false documents and thus, he committed the offence u/s.465/473 IPC within the cognizance of this court. Whereas, against accused i) Raj Kumar S/o.Raja Ram, the charge was framed u/s.473 IPC as he was found in possession of 2 blocks as described in the seizure memo Mark-H for the purpose of committing forgery by preparing false documents. Similarly, against the accused Hasan Tanvir S/o.Hasan S. Riyaz, the charge was framed u/s.473 IPC as he was found in possession of a camera as described in the seizure memo Mark-I and a certificate of CBSE Haryana as described in the seizure memo Mark-J for the purpose of committing forgery by preparing false documents. Similarly, against the accused Bhagwan Dass S/o. Dhann Ram, the charge was framed u/s.473 IPC as he State vs. Raj kumr & Ors. FIR No.12/95 5 was found in possession of 6 certificates of CBSE and one mark sheet blank as described in the seizure memo Mark-G for the purpose of committing forgery by preparing false documents. Similarly, against the accused Ajit Singh S/o.Attar Singh, the chage was framed u/s.473 IPC as he was found in possession of 2 degrees of Delhi University, two marks statement and one certificate of CBSE as described in the seizure memo Mark-F for the purpose of committing forgery by preparing false documents. Similarly, against accused Dinesh Kumar S/o. Shiv Raj, the charge was framed u/s.473 IPC as he was found in possession of 8 certificates and marks statements blank of different Boards as described in the seizure memo Mark-E for the purpose of committing forgery by preparing false documents. Similarly, against the accused Bhagwat Singh S/o. Gokul Singh, the charge was framed u/s.473 IPC as he was found in possession of one block as described in the seizure memo Mark-D for the purpose of committing forgery by preparing false documents.
State vs. Raj kumr & Ors. FIR No.12/95 6
2. Thereafter, vide orders dt. 10.11.2004 (after remanding bac of the case on the point of charge vide orders dt. 1.2.1999 of the Ld. ASJ), charges against the accused Raj Kumar, Hasan Tanvir, Bhagwan Dass, Dinesh Kumar and Ajit Singh were also framed u/s.465/468/34 IPC as well on the basis of the above said material as mentioned herein above.
3. To the charges framed against the accused persons, the accused persons pleaded not guilty and claimed trial and thus the trial has commenced.
4. For proving its case, the prosecution has examined a total number of six prosecution witnesses.
Out of these six prosecution witnesses, PW1 inspector Vinita Tyagi was the duty officer who deposed that on receiving rukka sent by SI Manoj Dixit through constable Devender she recorded the FIR no.12/95 with PS Krishna Nagar. The State vs. Raj kumr & Ors. FIR No.12/95 7 endorsement on the rukka was proved as Ex.PW1/B. Whereas, PW2 ASI Devender Kumar has been examined by the prosecution as a material witness who was the member of the raiding party and this witness has stated that on receipt of the information by SI Manoj Dixit, one raiding party was prepared comprising of inspector Ram Mehar Singh, SI Manoj Dixit, SI Rajpal, HC Dheeraj Singh, constable Nand Kishore, constable Satender, constable Mukesh, constable Somender and himself. This witness has stated that he was instructed to go to the house of one Guruji alongwith one Vinod Kumar who was deputed as a shadow witness and Vinod Kumar was instructed to hear the negotiation between himself and the accused Guruji. This witness has stated that he met Guruji at East Azad Nagar, Gali No.2, House No.63 and a deal was finalized for Rs.2,000/- for a false marksheet and certificate of 10th class in his name and he paid Rs.200/- as advance and the rest of the amount was to be paid at the time of delivery of the documents at 2.00p.m.near Aggarwal Sweets. This State vs. Raj kumr & Ors. FIR No.12/95 8 witness has stated that thereafter the raiding party reached near Aggarwal Sweets at 2.10p.m., accused Guruji came there and he handed over the two documents to him and thereafter the accused was apprehended. His disclosure statement was recorded and the accused Rameshwar Dass disclosed the name of accused Bhagwat Singh. This witness has stated that when accused Rameshwar Dass was interrogated, he disclosed the names of the accused persons namely Ajit, Dinesh, Bhagwan Dass, Raj Kumar and Tanvir. Thereafter, this witness has narrated the incidents of the raiding party reaching at the houses of the accused Dinesh, Ajit, Bhagwan Dass, Raj Kumar & Tanvir and the incidents of the recovery made from them and the entire procedure regarding the preparation of personal search memos, seizure memos of the accused persons etc.. Thus this witness who was deputed as decoy customer by the raiding party is a material witness regarding the arrest of the accused persons, regarding the recovery made from the accused persons and regarding the procedure adopted by the State vs. Raj kumr & Ors. FIR No.12/95 9 raiding party.
The prosecution has further examined PW3 Shashi Bhushan, Head of the Department, CBSE Preet Vihar who has stated that the documents Ex.P-4 to P-6 and Ex.P-7 to Ex.P-22 were sent to his office from PS Krishna Nagar and the same were found to be bogus documents/certificates.
The prosecution has further examined PW4 SI Rajpal who was also a member of the raiding party and he has deposed exactly on the lines on which PW2 ASI Devender Kumar has deposed narrating the chain of the incidents in the same manner as PW2 has described.
The next witness examined by the prosecution is PW5 Morica Te Te, Assistant Controller of Examination, revaluation of degree, Delhi University, Delhi and this witness has stated that documents Ex.P-1, P-3, P-5/A and others were the forged documents not issued by Delhi University.
The next witness examined by the prosecution is PW6 Sh.
State vs. Raj kumr & Ors. FIR No.12/95 10 Vinod Kumar who was deputed as a shadow witness by the raiding party and this witness was declared hostile by the State and thereafter, cross-examined by the Ld. APP for the State.
5. During the course of trial, number of documents were exhibited in the court to prove the documentary evidence. This list includes FIR Ex.PW1/A, endorsement on rukka Ex.PW1/B, seizure memo Ex.PW2/A, Ex.PW2/B, Ex.PW2/D, Ex.PW2/E, Ex.PW2/F, Ex.PW2/G & Ex.PW2/H, rukka Ex.PW2/C, blocks Ex.PW2/A1 & Ex.PW2/A2, documents Ex.PW2/A3 & Ex.PW2/A4, currency notes Ex.PW2/A5 & Ex.PW2/A6, typewriters Ex.PW2/A7 & Ex.PW2/A8, gunny bags Ex.PW2/A9, Ex.PW2/A10 & Ex.PW2/A11, suitcases Ex.PW2/A12, Ex.PW2/A13 disclosure statement Mark-X, document Mark-X2, printing press Mark-X3, prints Mark-X4 & X5 which were seized vide seizure memo Mark-X6, seizure memo of documents recovered from the house of accused Dinesh Mark-7 & document Mark-8, seizure memo of the document recovered from the house State vs. Raj kumr & Ors. FIR No.12/95 11 of accused Ajit Mark-9,seizure memo of the document recovered from the house of accused Bhagwan Dass Mark- X10, seizure memo of the document recovered from the house of accused Raj Kumar Mark-11, disclosure statements of the accused person Mark-X12, Mark-X13, Mark-X14, Mark-X15, pointing out memos Mark-X17, Mark-X18, Mark-X19, Mark-X20, Mark-X21 & Mark-X22, seizure memo Mark-X23, certificate & documents Ex.P-7 to P-22, degrees P-1 to P-3, documents Ex.P-4 to P-6, letter dt. 24.11.2007 Ex.PW3/DX1, document Ex.PW3/DX2, hawalgi memo Ex.PW4/A, site plan Ex.PW4/B, disclosure statement of Rameshwar Dass Ex.PW4/C, seizure memo Ex.PW4/D, pointing out memos Ex.PW4/E, Ex.PW4/F, Ex.PW4/G & Ex.PW4/H, personal search memo Ex.PW4/I, seizure memo Ex.PW4/J, detail of document Ex.PW4/K, disclosure statement Ex.PW4/L & Ex.PW4/M, pointing out memo Ex.PW4/N & Ex.PW4/O, seizure memo Ex.PW4/P, disclosure statement Ex.PW4/Q, pointing out memo Ex.PW4/S, seizure memo Ex.PW4/T, document Ex.PW5/A & document State vs. Raj kumr & Ors. FIR No.12/95 12 Ex.PW6/DX1 etc. That is all for the prosecution evidence.
6. Statement of all the accused persons was recorded separately under section 313 Cr.P.C. wherein when all the incriminating evidence and documents put to them, one by one, they denied all the allegations,incriminating evidence and documents put to them and submitted that all the witnesses were interested witnesses, that they were falsely implicated by the police officials in this case and that all the documents were forged and fabricated. In defence they did not lead any defence evidence.
7. During final submissions, Learned APP on behalf of State has argued that the accused persons in the case in hand had cheated a number of persons. It has been further argued by Ld. APP for the State that PW2 & PW4 are the material witnesses who have supported the prosecution case and it has been argued that State vs. Raj kumr & Ors. FIR No.12/95 13 on the basis of the testimony of the above said witnesses, the accused persons are to be held guilty.
Whereas, on the other hand Ld. defence counsel Sh. Anis Ahmad for all the accused persons has vehemently countered the prosecution case on many counts in the written final arguments filed by him on record such as that recovery from the accused persons is fully doubtful and full of suspicion. It has been further argued that the recovery from the co-accused Rameshwas Dass(since deceased) & Bhagwat Singh (since deceased) cannot be read against the present accused persons and reliance of the prosecution on the recovery effected from these two accused persons is totally fallacious. It has been further argued that the recovery against the accused persons is not in pursuance of the provisions of the section 27 of Indian Evidence Act and hence, the said recovery cannot be called a legal recovery, thus, having no legal consequences. It has been further argued that no case is made out u/s.465/468 of the IPC as the necessary ingredients State vs. Raj kumr & Ors. FIR No.12/95 14 constituting the aforesaid offences against the accused persons have not been proved at all by the prosecution. It has been further argued by the Ld. Defence counsel that there is clear and flagrant violation of section 100(4) of the Cr. P.C.while effecting the search of the accused persons and as such the recovery effected cannot be relied upon at all. It has been further argued that there is no evidence on record whereby the accused persons can be connected with the recovered articles such as the camera, blocks and the forged degrees/certificates. Least, but not the last, it has been argued further that the process of search and seizure as unfolded through the evidence of PW2 & PW3 is full of doubts and suspicions. It has been argued that the prosecution has utterly failed in proving the guilt of the accused persons beyond any reasonable doubt and as such the accused persons are liable to be acquitted.
8. On going through the records, consisting of ocular as well State vs. Raj kumr & Ors. FIR No.12/95 15 as documentary evidence, in the light of the contentions of both the parties, it has to be seen by the court as to whether the recovery from the accused persons cannot be relied upon at all as argued by the Ld. Defence counsel or as to whether the recovery has been proved in accordance with the provisions of law as has been argued by the Ld. APP for the State.
9. If the testimony of PW2 ASI Devender Kumar who was deputed as a decoy customer and PW4 SI Rajpal is carefully gone through, it becomes evidently clear that the process of search and seizure of all the accused persons was done within a short span of time, somewhere within 20 minutes, somewhere within 30 minutes. I am of the opinion that Ld. Defence counsel has rightly pointed out that the raiding of the houses of all the accused persons, searching of their houses, preparation of the memos and sealing of the incriminating documents was in a flash of time which is prima facie full of suspicion.
State vs. Raj kumr & Ors. FIR No.12/95 16 The next contention of the Ld. Defence counsel is that the recovery effected was in violation of section 27 of the Indian Evidence Act. It has to be seen section 27 of the Indian Evidence Act provides that only that portion of the statement shall be admissible in evidence on the basis of which recovery is effected and if the recovery is not effected in pursuance of the disclosure memo of the accused, then such recovery has no legal validity in the eyes of law. It has to be seen if the testimony of PW2 ASI Devender Kumar who is the most material witness examined by the prosecution and that of PW4 SI Rajpal is gone through, the irresistible conclusion is that first recovery was effected then the recovery memo was prepared and thereafter the disclosure memo was recorded. I am of the opinion that Ld. Defence counsel has rightly pointed it out that recording of the disclosure memo after the recovery of incriminating material loses his significance and is not legally admissible. Ld. Defence counsel has relied upon the ratio of the judgement in the case titled as State Vs. Inayatullah wherein State vs. Raj kumr & Ors. FIR No.12/95 17 the Hon'ble Apex Court of Land has held that any recovery in contravention of Section 27 of the Indian Evidence Act is legally inadmissible in evidence.
10. To counter the above said objection, the Ld. APP for the State has argued that infact the recovery from all the accused persons has been effected in pursuance of the disclosure memo of the accused Rameshwar Dass and Bhagwat Singh(since deceased) but, in my opinion the abovesaid submissions of the Ld. APP for the State does not hold much water and has no legs to stand upon. Section 27 of the Indian Evidence Act clearly states that the recovery is to be effected from an accused on the basis of his statement. The disclosure memo of an accused person cannot be related to the recovery effected from other accused persons and the disclosure memo has to be read only in relation to the recovery effected from that particular accused person. It has also been rightly pointed out by the Ld. Defence counsel that from the State vs. Raj kumr & Ors. FIR No.12/95 18 evidence led by PW2 & PW4, it is apparent that the alleged recovery was within the special knowledge of the accused persons from whom the same is allegedly recovered and as such accused Rameshwas Dass was not in a position to tell about the particular spot of the particular almirah where the incriminating documents were kept.
11. Further more it is settled law that if despite the availability of public witnesses at the time of the recovery, no public witness is joined, then the recovery becomes doubtful. Ld. Defence counsel has relied upon section 100(4) of the Cr . P.C.relating to the search and seizure and this section provides that it is incumbent upon the officer making the search to join two or more independent and respectable inhabitants of the locality in the process of the search. Ld. Defence counsel has relied upon a judgment cited as JT 1995 (7) SC 350 titled as Pradeep Narayan Madgaonkar etc. vs. State of Maharashtra wherein the Hon'ble Supreme Court has held "... it State vs. Raj kumr & Ors. FIR No.12/95 19 appears to us rather strange that in a busy locality, where the search was to be conducted, the only two independent panches associated by the police party were PW2 and his friend PW5, both not belonging to the locality. It appears to be too much of a co- incidence that the raiding party who had left for combing operation in the area of Tilak Nagar on receipt of information regarding the two incidents of firing in that areas should meet PW2 & PW5 only as the respectables of the locality is and request them to join as independent witnesses..."
12. It has to be seen that PW2 & PW4, the only material witnesses examined by the prosecution have repeatedly admitted in the cross-examination that IO did not ask any neighbour or any respectable person of the locality to join the investigation. I am of the opinion that the provisions of section 100 (4) of the Cr. P.C are mandatory in nature and non-compliance of the same entails serious consequences.
State vs. Raj kumr & Ors. FIR No.12/95 20
13. In the aforesaid judgment relied upon by the Ld. Defence counsel, it has also been held by the Hon'ble Supreme Court that indeed the evidence of the police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecution agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of he case based on their investigation, requires greater care to appreciate their testimony.
14. If the testimony of the decoy customer PW2 and that of SI Rajpal is scrutinized in the light of the observations of the Hon'ble Supreme Court made in the abovesaid judgment, their testimonies does not stand and collapses the story of the prosecution. No independent witness was joined at all by the raiding party. The only State vs. Raj kumr & Ors. FIR No.12/95 21 independent witness named was PW6 who turned completely hostile and when he was cross-examined by the Ld. APP for the State, even in the cross-examination he failed to state anything from his mouth so as to strengthen and testify the story of the prosecution.
15. It has also been rightly pointed out by the Ld. Defence counsel that the recovery memo of all the accused persons has been signed by Ramzan Akhtar and SI Rajpal but Ramzan Akhtar has not appeared in the witness box and has not deposed for the prosecution. PW2 ASI Devender Kumar failed to sign any of the recovery memos despite the fact that he was the material witness of the prosecution.
16. It has also been pointed out by the Ld. Defence counsel that the IO of the case has not been examined and there is no explanation coming forward for non-examination of the IO. Ld. State vs. Raj kumr & Ors. FIR No.12/95 22 Defence counsel has relied upon a case titled as Rajawa Kabat Vs. State of Bihar cited as AIR 1988 (Crime) (1) (709) wherein the Hon'ble High Court of Patna has held that non-examination of the IO is a serious lacuna as the accused stands deprived of his right of putting his defence to the IO.
17. It has to be seen that the Hon'ble Supreme Court of India has recently held that non-examination of the IO is not serious provided other facts are duly corroborated by evidence which is not the case in the present case. Further, more it has also been rightly pointed out that there is no evidence on record to show and prove on record that the incriminating documents were prepared from the blocks/camera allegedly recovered from the accused persons.
18. Though, Ld. Defence counsel has also argued that ther eis no evidence on record to prove that the incriminating documents recovered from the accused persons are forged documents but, I State vs. Raj kumr & Ors. FIR No.12/95 23 do not want to dwell much on this point because I am of the opinion that in the light of the above said discussion I have no hesitation to hold that the recovery itself is within the four corners of doubt and there is flagrant violation of the section 27 of the Indian Evidence Act as well as section 100(4) of the Cr. P.C.
19. In the nut shell, suffice it to say that there is no evidence on record to link the present accused persons with the crime and the prosecution has utterly failed in proving the guilt of the accused persons u/s.465/468/473 IPC.
20. Thus, I have no hesitation to hold that this is a fit case where benefit of doubt has to be given to the accused persons and as such I hereby give a benefit of doubt to all the accused persons. Therefore, all the accused persons are acquitted from the charges levied against them for the offence punishable under section 465/468/473 IPC. (Two of the accused Rameshwar Dass and State vs. Raj kumr & Ors. FIR No.12/95 24 Bhagwat Singh have already expired).
Bail bonds/surety bonds of all the accused persons are hereby discharged.
File be consigned to Record Room.
Announced in the open court
On 13th Day of May 2008 ( RAJ KUMAR )
Metropolitan Magistrate
Karkardooma Courts, Delhi.
State vs. Raj kumr & Ors. FIR No.12/95
25
FIR NO. :12/95
P.S. : Krishna Nagar
U/s : 420/468/471 IPC
State Vs. Raj Kumar & ors.
13.05.2008
Present : Ld. APP for the State.
Proceedings against accused Rameshwar & Bhagwat Singh have already been abated in the event of their death. Rest of the accused persons Raj Kumar, Bhagwan Dass, Ajit Singh, Hasan Tanvir & Dinesh Kumar on bail with counsel Sh. Anis Ahmad.
Vide separate order/judgment all the accused persons are acquitted from the charges levied against them for the offence punishable under section 465/468/473 IPC. Their bail bonds/surety bonds be discharged.
File be consigned to Record Room.
MM/13.05.2008 State vs. Raj kumr & Ors. FIR No.12/95 26 State vs. Raj kumr & Ors. FIR No.12/95