Delhi District Court
State vs . Amit Kumar on 10 April, 2023
1
IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
CC No.52624/2016
State Vs. Amit Kumar
FIR No. 221/2009
U/s 120B IPC & 419/420 IPC
P.S. Special Cell
1. S. No. of the Case : 230/02
2. Date of institution of case : 28.09.2010
3. Date of Commission of Offence : On or before 19.08.2009
4. Name of the complainant : SI Abijit C. Loreng
5. Name, parentage & Address : 1. Amit Kumar
of accused S/o Sh. Balwan Singh,
R/o VPO Jharoda Kalan, near
Jain Mandir, PS Najafgarh,
New Delhi.
2. Karamvir Singh
S/o Late Sh. Rakesh Kumar
R/o VPO Jharoda Kalan, near
Jain Mandir, PS Najafgarh,
New Delhi.
5. Offence complained of or proved : U/Sec.25 Arms Act
6. Plea of Accused : Accused persons pleaded not guilty for offence U/Sec.25 Arms Act
7. Final Order : Acquitted Date of reserving the judgment : 10.04.2023 Date of pronouncement of judgment : 10.04.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
State Vs. Amit Kumar & Anr.FIR No.221/2009
PS Special Cell 2
2. The facts in brief are that on or before 19.08.2009, accused Amit Kumar and Karamvir Singh, both agreed to do or caused to be done an illegal act i.e. accused Amit Kumar would impersonate as Karamvir and would sit in the written test of Constable(Executive) which was to be conducted at PTS ground, Wazirabad, Delhi, within the jurisdiction of PS Khajuri Khas(Special Cell). Further in pursuance to your criminal conspiracy, accused Amit Kumar appeared in the said examination impersonating as Karamvir and thereby both committed an offence punishable U/Sec.120B/419/420 IPC.
Thereafter accused Amit Kumar and Karamvir Singh were arrested and after completing the other formal investigation, challan was presented before the Court for trial.
2. After completion of investigation, charge-sheet was filed. Copies were supplied to the accused persons and charge U/Sec.120B IPC & 419/420 IPC was framed against the accused persons on 19.02.2014 for the offences punishable under section U/Sec.120B IPC & 419/420 IPC to which the accused persons have pleaded not guilty and claimed trial.
4 To prove its case against the accused the prosecution has examined 08 witnesses.
PW-1 is HC Sunita has proved registration of FIR as Ex.PW1/A and her endorsement on rukka as Ex.PW1/B. PW-1 was not cross-examined by counsel for the accused persons despite opportunity given to them.
FIR No.221/2009PS Special Cell 3 PW-2 is Retd. SDI Abhijeet Loreng who deposed that on 19.08.2009 he was posted as a SO to Addl. DCPII Sh. Rajbir Singh Chauhan. On that day, he was on invigilator duty on ground C, Pocket I, Row no. 3 at PTS Wazirabad and while checking admit cards of the candidates appearing for the exam for the Constable in Delhi Police, it was discovered that Amit Kumar sitting on the last seat, his face did not match with the photographs appearing on the admit card. He deposed that then he asked him about the same and he replied that this is his photograph but an old one. He stated that on his suspicion, he confirmed from fellow Invigilator SI Anil Sehgal who suggested that he get the biometric done of said Amit Kumar because the photo on the admit card did not match with the said Amit Kumar. Thereafter, he got the biometric Amit Kumar done and the same was not matched with the photographs affixed on the admit card of one Karambir Singh. He deposed that then he confessed that he had done mistake. He prepared his report to this effect which is already marked as Mark X and is Ex.PW2/A and handed over the accused to the local police. PW2 correctly identified accused Amit Kumar in the Court.
During cross-examination by counsel for the accused Amit Kumar, PW-2 deposed that at the relevant time, he was posted in South East District. He deposed that the timings of Exam were from 10 am to 12 noon probably and he reached at the exam center at about 7:30 am. He deposed that the total number of candidates must be more than thousands. He stated that there were too much crowd outside the exam center. He stated that there was checking at the entry points of State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 4 the Exam center and only candidates were allowed to enter in the Examination center. PW2 did not remember how many checking points were there but checking points were there. He stated that there were approximately 10 candidates sitting in the abovesaid row. He started the checking of the candidates around 8:30 am and accused Amit Kumar was checked about 8:35 am. he had not mentioned that fact in his complaint which was discussed with his fellow invigilator SI Anil Sehgal. PW2 stated that the biometric test was done at one tent where senior officers were there and one of them was Sh. Kushwaha, Addl. DCP. The biometric was checked but no report was prepared to this effect. He deposed that he did not remember who has done the biometric test. He did not remember whether IO of this case whom the said complaint was handed over, was met him on that day or after. He stated that accused Amit Kumar was handed over to some constable who was on duty in examination hall as per the instruction of Senior officers and thereafter, he started his invigilator duty. PW2 proved the complaint Ex.PW2/A which was handed over to that constable at that time between 8:45 to 9 am. He did not visit the PS Kajoori Khas on that day. Accused Amit Kumar has not signed the attendance sheet as he had already checked his admit card and other candidates sitting in the said row had already signed the attendance sheet. He deposed that the said attendance sheet was not handed over to the Constable to whom the accused and complaint alongwith the admit card were handed over. After seeing the admit card in judicial file, the witness identified the admit card which was handed over by State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 5 him to the constables and is Ex.PW2/B. He admitted that there was too much crowd and sound outside the examination center when he had entered in the examination center and he also observed the sound of crowd when he was inside the examination center. He denied the suggestion that he had not caught the accused Amit inside the examination center. He denied the suggestion that he had written the complaint Ex.PW2/A on the instructions of his seniors. He further denied the suggestion that no biometric was done of accused Amit Kumar. He denied the suggestion that accused Amit Kumar was not sitting in the row where he was on invigilator duty. He furtherdenied the suggestion that he was being made complainant by the Seniors as the name of the candidates Karambir was mentioned in the row in which he was on invigilator duty. He denied the suggestion that accused Amit Kumar was not sitting in place of Karambir. He denied the suggestion that he is deposing falsely.
PW2 was not crossexamined by counsel for the accused Karambir despite opportunity given to him.
PW-3 is HC Sushil Kumar who deposed that on 19.08.2009 he was posted as Constable at PS Khajuri Khas and on that day he was on arrangement duty at PTS Wazirabad alongwith SHO. He deposed that during the course of duty, SI Abhijeet met SHO and handed over a written complaint and SHO made endorsement on the said complaint and handed over the same to him for getting registration of FIR. He further deposed that he alongwith the abovesaid complaint had gone to PS Khajuri Khas, got registered FIR State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 6 and returned back at the spot alongwith copy of FIR and original complaint and handed over the same to ASI Saheb Singh to whom the investigation was marked and he was also on arrangement duty at PTS Wazirabad. He deposed that SI Abhijeet handed over one Amit Kumar who was alleged to be appeared in the examination of Constable in Delhi Police in place of someone, to ASI Saheb Singh. IO handed over the custody of accused Amit Kumar to him. He deposed that during his personal search, two ball pens and Rs. 20/ were recovered, which were conducted vide personal search memo Ex.PW3/A. He deposed tht IO also seized the admit card which were recovered by SI Abhijeet from accused Amit Kumar vide seizure memo Ex.PW3/B. He also proved the admit card as Ex.PW2/B. He deposed that accused Amit was interrogated and IO recorded his disclosure statement Ex.PW3/C and he was arrested vide memo Ex.PW3/D. He deposed that IO prepared the site plan at the instance of SI Abhijeet. PW3 correctly identified accused Amit Kumar in the Court.
During cross-examination by Ld. Counsel for the accused Amit Kumar, PW-3 deposed that his statement was recorded by the IO ASI Saheb Singh on the same day at PS in the evening. He deposed that SI Abhijeet met with SHO Insp. Pankaj Sharma between 9 am to 9:30 am. He deposed that all the process from registration of FIR till recording his statement was completed upto 7:00 pm. He deposed that he went to PS Khajoori Khas from Wazirabad for registration of a case at about 9:30 by rickshaw and came back by rickshaw at about 11 am. He deposed that IO prepared the site plan at about 2:30 pm. They State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 7 remained at the spot upto 7 to 7:15 pm. He further deposed that SI Abhijeet remained with them from the time of handing over the complaint till 3:30 pm. He deposed that he did not remember whether IO ASI Saheb Singh inquired from the persons/officers present at the examination center about the incident. He further deposed that they three (IO, accused Amit Kumar and he) came back to the PS from the spot by auto rickshaw. PW3 denied the suggestion that he had not joined the investigation in the present case or that he had signed the different memos at the instance of IO at PS. He denied the suggestion that he is deposing falsely.
PW-3 was not cross-examined by Ld. Counsel for the accused Karamvir despite opportunity given to him PW-4 is Retd. SI Sahib Singh who deposed that on 19.08.09 he was posted at PS Khajoori Khas as ASI and on that day, he was on duty at PTS Wazirabad. He deposed that Ct. Sushil Kumar, after registration of FIR came back and handed over him copy of FIR and Original Tehrir. He deposed that SI Abhijit met him at the PTS Wazirabad and produced accused Amit and handed over to him accused Amit and admit card. He deposed that he interrogated SI Abhijit and prepared site plan at his instance which is Ex.PW4/A. He further deposed that thereafter, he interrogated accused Amit Kumar and arrested him vide memo as Ex.PW3/D. He also conducted his personal search vide memo as Ex.PW3/A. PW-4 He deposed that he recorded his disclosure statement as Ex.PW3/C. He deposed htat thereafter, accused was medically examined and sent to lock up and State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 8 case file and accused was handed over to IO of Special Cell.
During cross-examination by Ld. Counsel for the accused Amit Kumar, PW-4 deposed that he did not remember the exact time but it was afternoon hours when Ct. Sushil handed over him the copy of FIR and original Tehrir. PW-4 could not say exact time when SI Abhijit met him. He deposed that there was no other person except accused Amit Kumar when SI Abhijit met him. He further deposed that he prepared site plan in the presence of SI Abhijit. He deposed that SI Abhijit was not present at the time of arrest and personal search of accused Amit Kumar. He denied the suggestion that SI Abhijit had not handed over him accused Amit Kumar that is why no memos have been signed by SI Abhijit. He reached at the PTS Wazirabad at about 8 am. He deposed that he was on reserve duty inside the examination center. He denied the suggestion that there was so much crowd and sound outside the examination center. He further denied the suggestion that accused Amit Kumar was arrested outside from the examination center or that accused was falsely implicated in the present case at the instance of senior officials. He deposed that Ct. Sushil took accused Amit to the hospital for medical examination and he returned back to the police station after sending Ct. Sushil to hospital at about 8:30 pm by his own motorcycle. He did not know how Ct. Sushil took accused Amit Kumar to hospital. He further deposed that he handed over the file and accused to IO Special Cell at about 8:30 pm at the PS on the instructions of SHO. He deposed that he did not remember whether SHO was present at that time or not. PW-4 denied the suggestion that he prepared all memos and State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 9 documents on the instruction of senior officers. He denied the suggestion that he is deposing falsely.
PW-4 was not cross-examined by counsel for the accused Karamvir despite opportunity given to him PW-5 is Insp. Dinesh Pal who deposed that on 20.08.2009 he was posted at Special Cell as SI and on that day the present case was marked to him for further investigation. He deposed that during investigation on 20.08.2009, he moved an application for JC remand of accused Amit Kumar which is Ex.PW5/A. He deposed that accused was sent to JC. He deposed that thereafter the investigation of the present case was marked to SI Girish Kumar and he handed over the case file to him.
PW-5 was not cross-examined by the accused persons despite opportunity given to them.
PW-6 is ASI Joginder Singh who deposed that on 23.09.2009 he was posted at Special Cell SR as Constable and joined the investigation with IO SI Girish Kumar and reached at CMM Court Tis Hazari where accused Karamvir surrendered before the Court. He deposed that SI Girish took the permission for arrest from the Court and arrested the accused Karamvir vide arrest memo Ex.PW6/A. He proved disclosure statement of accused Ex.PW6/B. He deposed that after the arrest of the accused, accused was sent to JC by the Court. PW6 correctly identified accused Karamvir in the Court.
PW-6 was not cross-examined by Ld. Counsel for the accused persons despite opportunity given to them.
PW-7 is Sh. Narender Singh who deposed that on State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 10 23.06.2010 he was posted as ACP (recruitment Cell), Delhi Police. On that day, he sent one letter bearing No.32827/Rcell(R-II) CONST to DCP Special Cell for supplying notification of examination/written test of Constable(executive) held on 19.08.20209 alongwith copy of draft notification which was published in Employment news dated 07.02.2009. He proved the said letter dated 23.06.22010 and Draft Notification and publication in the newspaper are Mark B. PW-7 further deposed that on 28.06.2010, he supplied the information /documents in respect of examination dated 19.08.2009 to DCP Special Cell vide letter No.32963/Rcell(R-II) CONST, Mark C alongwith the candidate's fingerprint record of Karambir Singh S/o Late Sh. Rakesh Kumar, Roll No.406318 and registration No.447227. HE has proved the copies of attendance sheet, name and particular of concerned area are Mark D. PW-7 also proved the attendance sheet of written test of candidate Karambir Singh bearing roll No.406318 as Ex.PW7/A. He deposed that the original letters were sent to DCP Special Cell.
PW-7 was not cross-examined by Ld. Counsel for the accused persons despite opportunity given to them.
PW-8 is Insp. Girish Kumar who deposed that on 21.08.2009 he was posted as Sub Inspector at PS Special Cell, SR, New Friends Colony, Delhi. He deposed that on that day, investigation of the case was transferred to him. He deposed that during investigation on 23.09.2009 accused Karamvir whom he correctly identified had surrendered before the Court and after formal permission, he interrogated and arrested accused Karamvir vide arrest State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 11 memo already exhibited as Ex.PW6/A. He deposed that he also conducted the personal search memo of accused Karamvir vide memo Ex.PW8/A and he recorded disclosure statement of accused vide memo already exhibited as Ex.PW6/B. He further deposed that he collected the relevant documents regarding candidature of accused Karamvir Singh from Recruitment Cell of Delhi Police which includes original admission Card, finger print record, the attendance sheet, deployment chart of invigilators, copy of Notification regarding recruitment, etc. which are already marked as Mark A to Mark D and already exhibited as Ex.PW7/A. PW-8 deposed that he recorded the statement of witnesses U/Sec.161 Cr.P.C and after completion of investigation, he filed the charge-sheet before the Court.
PW-8 was not cross-examined by counsel for Ld. Counsel for the accused Amit Kumar despite opportunity given to him.
During cross-examination by Ld. Counsel for accused Karamvir, PW-8 denied the suggestion that he had not investigated the matter properly and fairly. He denied the suggestion that he is deposing falsely.
5. After closing of the prosecution evidence, statement of accused Amit Kumar and Karamvir Singh was recorded under Section 313 r/w Sec. 281 CrPC. In their statement, accused persons denied to have committed the offence and claimed to have been falsely implicated in this case. Accused Amit Kumar in his statement stated that on 20.08.2009 stamped situation was occurred and police officials came to the place of incident to calm down the situation and there the State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 12 police officials apprehended me. He stated that he has nothing to do with the present case as alleged in the FIR. Police officials falsely implicated him in the present case and even he did not know the co- accused namely Karamvir Singh. He stated that he had never met him before the present case Accused Karamvir Singh stated that on 20.08.2009 stamped situation was occurred and police officials came to the place of incident to calm down the situation and he went to his home. After that he received summons/notice from the police officials of PS Special Cell to join the investigation and from there they arrested him. He stated that he has nothing to do with the present case as alleged in the FIR. Police officials falsely implicated him in the present case. Even he did not know the co-accused namely Amit Kumar. He stated that he never met him before the present case. Both the accused persons declined to lead evidence in their defence.
6. I have heard Ld. APP for the State and both the counsel for the accused persons, perused the record and have gone through the relevant provisions of the law.
7. At this juncture it is relevant to discuss the provisions of law concerning this case, which are as under:
415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. A dishonest concealment of facts is a deception within the meaning of this section.
416. Cheating by personation. A person is said to State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 13 "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation. The offence is committed whether the individual personated is a real or imaginary person.
419. Punishment for cheating by personation. Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
8. Ingredients of cheating as defined under Section 415 of the IPC necessarily postulate an intention; there must be State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 14 an intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property; the intentional deception presupposes the existence of a dominant motive of the person making the inducement; such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived; further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. It is submitted that this definition necessarily has two parts; while in the first part the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. This is to say, in the first part inducement must be dishonest or fraudulent. In the second part inducement should be intentional; a guilty intention is an essential ingredient of cheating.
9. The essential ingredients to attract Section 420 Indian Penal Code are:- (i) cheating; (ii) dishonest inducement to deliver property or to make alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) the mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420 Indian Penal Code. State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 15 The deception played to impersonate/pretend to be some other person is cheating by impersonation.
10. As regards offences punishable under S.419/420 IPC r/w S.120 B IPC, the case of the prosecution is that accused Amit Kumar appeared in place of accused Karamvir in the written test for recruitment of constables (executive) in Delhi Police on 19.08.2009 at PTS Grounds, Wazirabad, Delhi and was caught by PW Abhijit/invigilator. As per PW2 Abhijeet he caught accused Amit Kumar when the photograph on the admit card of accused Karamvir did not match with Amit Kumar. He stated that he being an invigilator found accused Amit Kumar sitting on the last seat while checking the admit cards as an invigilator. He stated that he got biometric of accused Amit Kumar done but there is nothing on record to show that biometric of accused Amit Kumar was done at the examination center on 19.08.2009 to prove he appeared as accused Karamvir in the examination. He stated in his cross-examination that no report regarding biometric checking of accused Amit Kumar was prepared and he even did not remember who had done the biometric test. This raises an adverse inference qua the prosecution case as if biometric was done then report should have been prepared and should have been part of the investigation.
11. Further, PW2 stated that he asked fellow invigilator State Vs. Amit Kumar & Anr.
FIR No.221/2009PS Special Cell 16 SI Anil Sehgal to check photo on admit card and Amit Kumar to ascertain that the photograph did not match with the person appearing for the examination but this fact is not stated in complaint Mark X by PW2 and neither SI Anil Sehgal has been cited as a prosecution witness nor has been examined to support the case of the prosecution. This raises an adverse inference with respect to case of the prosecution regarding checking of admit cards and finding accused Amit Kumar in place of the accused Karamvir.
12. Furthermore, PW2 admitted that the attendance sheet Ex PW 7 / A does not bear signature of accused Amit Kumar who appeared for examination for accused Karamvir. If accused Amit Kumar was pretending to be accused Karamvir, then he would have signed on the attendance sheet. The reasoning that he did not sign the attendance sheet as his admit card was already checked and other candidates had already signed is not believable from the point of view of an ordinary prudent man. Furthermore, Ex PW7A attendance sheet bears signature of Karambir Singh and it is not even the case of the prosecution that the said signatures were forged by accused Amit Kumar and the said signatures were not even sent to FSL. This raises an adverse inference qua the prosecution case. Thus, the appearance of accused Amit Kumar inside the examination centre on the seat of accused Karamvir is not proved.
FIR No.221/2009PS Special Cell 17
13. As regards S.120B IPC, in State of H.P. v. Krishan Lal Pardhan- AIR 1987 SC 773, it was observed that the offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences.
14. Furthermore, generally conspiracy is a matter of inference, to be deduced from the criminal acts committed by the accused. Acts and declarations of conspirators in the furtherance of the common design or anything said or done or written by any one of such persons in reference to their common intention and the evidence of conduct of the accused and the surrounding circumstances, both before and after the commission of the offence, may be given in evidence to support or prove the offence of conspiracy.
15. As discussed herein above since the appearance of accused Amit Kumar inside the examination centre on the seat of accused Karamvir is not proved by the prosecution, the offences under S. 120 B IPC remains not proved beyond reasonable doubt by the prosecution.
FIR No.221/2009PS Special Cell 18
16. In view of the foregoing discussions, the prosecution has failed to prove its case beyond reasonable doubt. Accused Amit Kumar & Karambir Singh are entitled to be acquitted and are hereby acquitted of the charges u/s 419/420 r/w S. 120 B IPC & S. 120 B IPC.
CONCLUSION
17. In view of the aforesaid discussions, accused Amit Kumar & Karambir Singh are hereby acquitted of the charges u/s 419/420 r/w S. 120 B IPC & S. 120 B IPC.
File be consigned to record room after due compliance.
Digitally
Announced in the open court signed by
on 10.04.2023 Snigdha
Snigdha
(Snigdha Sarvaria ) Sarvaria
CMM/NDD/PHC
Sarvaria Date:
New Delhi/10.04.20232023.04.10
17:51:40
+0530
State Vs. Amit Kumar & Anr.
FIR No.221/2009
PS Special Cell