Delhi District Court
Chaudhary vs . on 1 November, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 423966/2016
Unique Case ID No. -: DLSW020021292015
FIR No. -: 121/2014
Police Station -: BHD NAGAR
Section(s) -: 419/420/120B IPC
In the matter of -
STATE
VS.
1.ROSHAN KUMAR S/o Late Sh. Ramanand Prasad R/o H. no. WB-65, Gali no. 3, Shakarpur, Laxmi Nagar, New Delhi.
Also:
R/o H.no. 131, Nathupur, Parsa Bazar, Patna, Bihar.
2. AJAY KUMAR MEENA S/o Sh. Ramdhan Meena R/o H. no. 161, Bharat Vihar, Jamdoli, Agra Road, Jaipur.
.... Accused
1. Name of Complainant : Ct. Deepak
1. Roshan Kumar
2. Name of Accused :
2. Ajay Kumar Meena Offence complained of or
3. : 419/420/120B IPC proved
4. Plea of Accused : Not guilty Date of commission of
5. : 08.03.2014 offence
6. Date of Filing of case : 15.10.2015
7. Date of Reserving Order : 22.10.2021 Digitally signed Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 1 of 23 by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:48:20 +0530
8. Date of Pronouncement : 01.11.2021 Convicted of S.
9. Final Order :
417/419/511/120B IPC Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. H.S. Yadav, Ld. counsel for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 4-9
4. Statement of accused and defence evidence 9-10
5. Arguments 10-11
6. Ingredients of the offence 11-12
7. Impersonation 13-16
8. Attempt 16-19
9. Deficient Investigation 19-21
10. Criminal Conspiracy 21-22
11. Conclusion 22-23
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. This is a classic case of the aspirational youth of India attempting to secure a government job, by any means possible. A job in the Police is a dream for many. However, clearing the ever-
competitive written examination remains a major hurdle. Solution:
hire someone else to take the written examination! Result: Get caught in the process. Briefly stated, the case of the prosecution is that in the year 2014, a recruitment drive for Constables in Delhi Police was organised. On 08.03.2014, a written exam for Constable Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 2 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:48:26 +0530 (Executive) was scheduled and Ct. Deepak was on duty for the biometric verification of candidates at Police Training School, Jharoda Kalan (hereinafter, "the PTS"). One candidate with admit card of Ajay Kumar Meena was facing problems in the biometrics and he was taken to the earmarked Expert Desk for rechecking. However, despite efforts, the biometric of the candidate failed to match. On enquiry, the person revealed that his name is Roshan Kumar (hereinafter, "A-1") and he has come to take the written examination in place of Ajay Kumar Meena, by impersonating Ajay Kumar Meena (hereinafter, "A-2"). As such, it is alleged that the accused persons have committed the offences punishable under Section 419/420/120B of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 121/2014 was registered at the Baba Haridas Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, final report against the accused was filed. After taking cognizance of the offence, the accused were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 419/420/120B IPC was framed against accused persons. The accused pleaded not guilty and claimed trial.
Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 3 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:48:32 +0530 PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Ct. Devender (first responder) PW-2 : Ct. Deepak (complainant) PW-3 : Ct. Satender (proves investigation) PW-4 : SI Ved Prakash (Invigilator) PW-5 : ASI Ramesh Kumar (IO) PW-6 : Krishan Kant Sharma (Biometric expert) PW-7 : Shrikant Yadav (Biometric expert) PW-8 : ASI Jagdev (proves candidate data) PW-9 : SI Rajkumar (IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Seizure memo Ex. PW1/B : Seizure memo Ex. P1 : Admission card Ex. P2 : Photographs, DL and pen Ex. PW1/C : Arrest memo of accused no. 1 Ex. PW1/D : Personal search memo of accused no. 1 Ex. PW2/A : Complaint Ex. PW3/A : Arrest memo of accused no. 2 Ex. PW3/B : Personal search memo of accused no. 2 Ex. PW3/C : Disclosure statement of accused no. 2 Ex. PW5/A : DD no. 21 A Ex. PW5/B : Admit card Ex. PW5/C : DL Ex. PW5/D : Photograph Ex. PW5/E : Pen Ex. PW5/F : Disclosure statement of accused no. 2 Application for PC remand of accused Mark X :
no. 1 Digitally signed by DEV CHAUDHARY Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 4 of 23 DEV CHAUDHARY Date:
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+0530
Application for issuance of NBWs
Mark Y :
against accused no. 2
Application for permission to interrogate Mark X1 :
and arrest accused no. 2
Mark Z : Application to DCP
Mark A : Application form of accused no. 2
Ex. PW5/G : Seizure memo
Mark B : Biometric record of accused no. 2
Ex. PW9/A : Endorsement on complaint
Ex. PW8/A : Copy of attendance sheet
Ex. PW8/B : Copy of OMR sheet
Ex. PW8/C : Control proforma
DOCUMENTS ADMITTED UNDER SECTION 294 CrPC Ex. A1 : FIR
5. Ct. Deepak (PW2) is the official who caught A-1 on the fateful day. He stated on oath that on 08.03.2014, he was posted as constable in the recruitment at K Ground, PTS. He was assigned duty to check the biometrics of the candidates who were appearing in the written examination for the recruitment of constable. He took 10-15 candidates for the biometric check up at the expert desk and the authentication of A-1 did not match. Thereafter, on enquiry, A-1 revealed that he was appearing in the said examination on behalf of accused no. 2, for a consideration of Rs. 25,000/-. Thereafter, information was given at the Police Station. PW4 reached at the spot and recorded statement of the witness. Admission card of A-2 was obtained from the A-1. The A-1 was correctly identified by the witness.
5.1 In cross-examination, Ct. Deepak (PW2) stated that he reported at Ground K at PTS at 06:00 a.m. and had made Digitally Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 5 of 23 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:48:52 +0530 departure entry. He stated that he did not know whether the admit card of the candidates were checked before he took them for biometric verification. He further stated that he did not know at what time he took the candidates for matching their biometric data. He further stated that he did not remember whether the site plan was prepared at the instance of the IO or not. He admitted that the documents were obtained from A-1 but the same were not seized in his presence. He further stated that when he took A-1 for matching his biometrics, the same did not match despite changing the fingers. He admitted that the admit card contains the photograph of the candidate but he could not make out from the black and white photograph whether the accused is the same person as depicted in the photograph. He admitted that CCTV cameras were installed in the entire PTS ground where the examination was held.
6. SI Ved Prakash (PW4) was the Invigilator in the said examination. He took the stand to depose that on the date of incident, PW2 came to him and narrated that A-1 had came in place of the original candidate. Thereafter, the witness directed PW2 to get the biometric verification done again. Thereafter, PW2 again came to the witness and stated that the biometric authentication had failed again. The witness stated that driving licence, admit card and photo of A-2 were found from A-1.
6.1 During the cross-examination, SI Ved Prakash (PW4) stated that disclosure statement of A-1 was not recorded in presence.
7. ASI Ramesh Kumar (PW5) stated that on 08.03.2014, he was posted in PS BHD Nagar and a DD no. 21A with regard to the impersonation of a person in the written examination for the post Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 6 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:48:45 +0530 of recruitment of constable executive in Delhi Police at PTS, was received. After the witness reached the spot, he met SI Raj Kumar alongwith Ct. Devender. SI Rajkumar handed over the admit card of a candidate namely Ajay Kumar Meena and produced the accused Roshan, who was interrogated. DL of Ajay Kumar, photographs and a pen were recovered from the possession of A-1 and his disclosure statement was recorded. Thereafter, A-1 was arrested and his personal search was conducted. Attempts to search A-2 failed. Thereafter, on 27.02.2015, A-2 surrendered in the court and was arrested. Records pertaining to the accused no. 2 were obtained from the Recruitment Cell and details of biometric experts alongwith record was obtained. On Court question, the witness deposed that he did not seize the dossier and the biometric equipments and had not matched the said bio-metric record the record lying in the recruitment cell.
7.1 During the cross-examination, ASI Ramesh Kumar (PW5) stated that on the date of incident, he did not make any departure entry. He stated that he cannot say whether accused Roshan was arrested prior to beginning of examination. However, he admitted that biometric verification of every candidate is conducted prior to the commencement of examination. He further admitted that the machine by which the biometric verification was conducted, was neither seized by him nor the same was sent to FSL.
The witness admitted that he did not obtain the thumb impression of both the accused persons and same were not sent to the FSL. No pubic witness was joined at the time of arresting A-1. He denied the suggestions put by the defence regarding the false implication of the accused. Digitally Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 7 of 23 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
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8. Shrikant Yadav (PW7) stated that in the year 2014, he was working in IBIOS Pvt. Ltd. as Chief Technical Officer, with duty assigned at PTS at expert terminals. Whenever there was "no-
match" of finger prints, the ground staff i.e. Delhi Police officials used to bring candidate at the Expert terminals for verification of finger prints. He used to conduct the finger print test again after cleaning the finger prints. In case, there was again a "no-match, he used to handover the candidate to the Delhi Police Officials. On 08.03.2014, a number of candidates were brought to the expert terminal and the process narrated above was followed. He failed to recollect the details of the present case, due to the volume of work done by the witness each day. He further stated that "no-match" of finger prints is fairly common. Apart from non-genuine cases, it may also happen because of weather conditions, wear and tear of finger prints etc. 8.1 During the cross-examination by Ld. APP for the State, Shrikant Yadav (PW7) stated that he did not remember whether the roll number 132122 had failed the biometric test. He further admitted that there are number of reasons for finger prints being "no match" even in genuine cases. He admitted that finger print machines get technical problems and due to the same, sometimes, the equipment shows "no match" even for genuine candidates. He admitted that he did not handover the finger print equipment to the police and he does not have any personal knowledge about the present case except his role. He further admitted that he had not brought any document to show that he was on duty on the fateful day.
9. SI Rajkumar (PW9) is the IO in the present case, who Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 8 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:49:10 +0530 stated that on 08.03.2014, he received DD no. 21A regarding the incident. When he went to the spot alongwith other police officials, PW2 met him there and handed over a complaint and one admission card for written test recruitment of temporary Constable (male) in Delhi Police. He made endorsement and FIR was registered. During investigation, he seized the admission card, ASI Ramesh Kumar seized the DL, photograph and pen of the accused Roshan. ASI Ramesh Kumar arrested A-1, he also conducted the personal search of the accused and recorded the statement of the accused. The articles were handed over to the witness. 9.1 During the cross-examination, SI Rajkumar (PW9) stated that he is not aware whether A-1 had sat for the written examination in the concerned examination hall or not. He admitted that prior to entering the examination hall, the candidate has to clear the biometric by giving thumb impression. He admitted that neither he seized the biometric machine nor he took any photograph of the same. He denied the suggestion that he did not visit the spot and all the documents were prepared while sitting in PS.
10. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
11. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused were recorded without oath under Section 281 read with Section 313 CrPC. They stated that they are Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 9 of 23 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:49:15 +0530 innocent and have been falsely implicated in the present case. Further, the accused persons stated that they do not wish to lead D.E. ARGUMENTS -
12. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
13. It is argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the A-1 was caught red handed and the recovery of the documents pertaining to A-2 proves conspiracy and the offence of cheating. The accused had entered the premises and the offence had fructified as soon as he entered by cheating the officials at the entry.
He contends that the documentary evidence when viewed alongwith the ocular evidence, amply proves the offences beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the story of the prosecution is full of deficiencies. The equipment was not seized and the expert testimony also points towards the fact that there are many other reasons for authentication errors in biometric machines. It is argued that the prosecution has failed to discharge the burden cast upon it. Ld. counsel has also relied upon the judgment passed by the Ld. Predecessor Court in a similar case titled State vs. Ranvir, FIR No. 318/2014, date of decision 20.03.2018, in order to augment his Digitally Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 10 of 23 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:49:20 +0530 contentions. As such, it is prayed that the accused persons be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
15. The accused persons have been charged for the offences of cheating by impersonation (S. 419 IPC), cheating and dishonestly inducing delivery of property (S. 420 IPC) and criminal conspiracy (S. 120B IPC) in the present case. For the offence of cheating by impersonation, it has to be proved that the accused Roshan knowingly represented himself to be Ajay Kumar Meena, in order to commit cheating. Further, the essential ingredients of the offence of cheating, as punishable under Section 420 IPC were recently culled out by the Hon'ble Supreme Court in Prof. R.K Vijayasarathy Vs. Sudha Seetharam (2019) 16 SCC 739, in the following terms-:
"16. The ingredients to constitute an offence of cheating are as follows:
16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:
16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
18. Section 420 of the Penal Code reads thus: "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 Digitally signed by Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 11 of 23 DEV DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:49:31 +0530 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."
19. The ingredients to constitute an offence under Section 420 are as follows:
19.1. A person must commit the offence of cheating under Section 415; and 19.2. The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
For the offence of criminal conspiracy under Section 120 A IPC, it has to be proved that the accused persons agreed upon committing the offence or any illegal act. An act besides the agreement to commit the illegal act should also take place. Criminal conspiracy is punished under Section 120B and the punishment of the offence is similar to that of abetment of the offence charged. Therefore, the burden is on the prosecution to prove the aforesaid ingredients of the offence.
16. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
IMPERSONATION -
17. The case of the prosecution hinges on proving that A-1 impersonated himself as A-2, for the purposes of appearing in the exam. The star witness of the prosecution is PW2, who has deposed that on the date of incident, he was assigned the duty to verify the Digitally Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 12 of 23 signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:49:37 +0530 biometrics of the candidates appearing in the exam. He took 10-15 candidates for verification and the verification of A-1 did not match. The accused then disclosed to the witness that he is appearing for some other candidate. The witness has duly identified A-1 from the dock as the same person who was caught by him, on the fateful day. The witness has stood his ground in the cross examination.
18. The version of this witness is duly corroborated by the Invigilator of the exam, PW4, who has stated that PW2 approached him and informed that A-1 had come to the exam centre in place of A-2. Thereafter, the witness directed PW2 to take the accused for biometric verification again. However, the same did not match again and thereafter, the police was called and the IO came to the spot. This witness has also identified A-1 as the person who was caught on the date of incident. The witness has not been cross examined on any point. PW1 and PW9 were the first responders on the spot, who have also supported the version of the prosecution.
19. Ld. counsel for the accused has argued that despite there being presence of many independent witnesses, i.e., the students appearing for the examination, no one was joined in the investigation of the case. However, it is settled law that non-joining of independent witnesses cannot be sole ground to throw out the case of the prosecution (Refer: Appabhai vs. State of Gujarat AIR 1988 SC 696). The testimony of all the official witnesses in the present case has remained unshaken. Had the version of the official witnesses not inspired confidence, testimony of an independent witness would have gained significance. Except for the fact that they are police officials, the defence has not pointed out any circumstance to disbelieve the officials. However, mere fact that the Digitally Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 13 of 23 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:49:43 +0530 witnesses are police officials is not sufficient to doubt their testimonies. Recently, a Constitution Bench of the Hon'ble Apex Court in Mukesh Singh vs. State (Narcotic Branch of Delhi) (2020) 10 SCC 120, has observed, inter alia, as under :-
"11. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh vs. State(NCT of Delhi) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal Singh vs. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor."
It is also to be kept in mind that the place of occurrence is an examination centre, where the persons present were candidates, who were focused on taking the exam rather than joining an investigation and getting statements recorded. The examination was being conducted in a scheduled manner and it is unjust to expect aspirants to leave their examination to join in the investigation. Therefore, non-joining of public witnesses has no effect in the present case.
20. Therefore, it stands established that A-1 was caught on the date of incident at the examination centre. However, mere fact that he was caught at the examination centre is not enough, unless it is also proven that at the time he was caught, he was impersonating another person, in order to cheat.
21. In this regard, it is first proved on record that A-2 was a candidate in the scheduled examination. Ex. PW5/A or Ex. P1 is the admission card of A-2, for the written test of Temporary Constable (Executive) written examination scheduled on 08.03.2014. Ex. PW8/A is the attendance sheet which mentions the name of A-2.
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2021.11.01 13:49:48 +0530 This documentary evidence is sufficient to establish that A-2 was a candidate scheduled to appear in the said examination.
22. Next, it is proved on record that A-1 was carrying the documents of A-2, at the time when he was apprehended. PW2 has deposed that recovery of admission card belonging to A-2, Ajay Kumar Meena, was made from the accused Roshan. The witness correctly identified the said admission card, Ex. P1. PW1 has deposed that the photographs and driving license, collectively Ex. P2, pertaining to A-2, were also recovered from A-1. PW2, who apprehended the accused, has also identified the documents as those recovered from the accused. PW4 also identified the said documents. Ex. PW1/A and PW1/B are the seizure memos of the documents. The said seizure is not under any cloud of doubt. Therefore, it stands established that the admission card, driving license, photographs of A-2 were seized from A-1, on the date of incident, at the time he was caught.
23. From the above discussion, it is amply proved that - (1) A-2 was a candidate for the test scheduled on 08.03.2014, (2) A-1 was caught at the test centre on the said date, and (3) A-1 was in possession of the admission card and other documents of the original candidate A-2, at the time when he was caught on the said date.
ATTEMPT -
24. Once the above facts stand established, it is to be ascertained whether the offence was committed. The fact that A-1 was representing to be A-2 is cogently proved. No identification or other documents pertaining to A-1 himself were recovered from his possession. Ex. PW1/D is the personal search memo of A-1, Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 15 of 23 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.11.01 13:49:54 +0530 according to which only a watch was recovered from him. Thus, he was only carrying the documents of A-2 with him.
25. Ld. counsel for the accused has laid great stress on the fact that even if A-1 was caught at the spot, he had not attempted any question paper and had not even sat in the examination hall. As such, he contends that there can be no cheating or even attempt to cheat, in such circumstances. Per contra, ld. APP for the State has refuted the said contention by arguing that the accused had long passed the realm of preparation and the offence was completed as soon as he entered the examination centre.
26. In the considered opinion of this Court, the contention of the ld. counsel for the accused is liable to be rejected. Any offence consists of four stages, viz-
In tentio n Preparatio n Attem p t O ff en ce Mere intent to commit an offence is not punishable, unless something tangible is done to fulfil that intent. Preparation is also not punished except for certain offences. In the scheme of the IPC, attempt is punishable under some sections specifically and generally under Section 511 IPC. If the attempt is successful, the offence is complete and is punished accordingly. The fact that the accused A-1 in the present case presented himself at the examination centre and was caught during the biometric verification, having presented himself before the official for the same, cannot be termed as mere preparation for the offence.
27. It is not the case that the accused changed his mind before entering the examination centre and went back. In Malkiat Singh vs. State of Punjab AIR 1970 SC 713, the Hon'ble Apex Court observed, inter alia, as under -: Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 16 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:49:59 +0530 "The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless."
Therefore, in terms of this doctrine of locus poenitentiae, preparation would not amount to attempt if the person of his own accord changes his mind before things go out of his control. Nothing on record proves towards this fact in the present case. It was not required that the accused sits in the examination hall and starts writing in the answer sheet. In State of Maharashtra vs. Mohd. Yakub AIR 1980 SC 1111, the Hon'ble Apex Court observed, "13. Well then, what is an "attempt"? Kenny in his OUTLINES OF CRIMINAL LAW defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control". This definition is too narrow.
What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case.
"Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be "criminal" need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar [AIR 1961 SC 1698 :
(1962) 2 SCR 241 : (1961) 2 Cri LJ 822] there is a distinction between "preparation" and "attempt". Attempt begins where preparation ends. In sum, a person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
Accordingly, any act reasonably proximate to the intended result is Digitally signed by Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 17 of 23 DEV DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:50:05 +0530 sufficient to put the act of the accused in the realm of attempt for an offence.
28. In the present case, the accused reached the venue of the examination centre and entered the same. He then voluntarily participated in the process for verification of candidates before they were allowed to enter the examination hall. The police official on duty took a batch of 10-15 candidates for biometric verification and A-1 participated in the said process, in hope that he would clear the same. Therefore, the sequence of events definitely points towards the intent of the accused. The act of the accused in participating the process has crossed the stage of preparation. The fact that the accused was caught in the verification process was a circumstance out of his control and the offence would have completed had he cleared the verification process and had taken the exam. The arguments of the ld. counsel for the accused is thus rejected.
29. The accused, representing himself to be a candidate for the exam, participated in the verification process, after entering the venue, and attempted to intentionally induced the on service police official, who represented the Delhi Police Department, to allow him to sit for the exam. He thus attempted to cause harm to the reputation of the said Department. The offence of attempt to commit cheating simplicitor and attempt of cheating by impersonation are clearly proved in the present case. However, it is evident from the document Ex. PW8/B, which the OMR sheet of accused, that he did not sit in the exam. Ex. PW8/C mentions that the said person was disqualified to appear in the exam. PW5 has also admitted in his cross examination that biometric verification is done prior to commencement of the examination. Since the accused A-1 failed the Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 18 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:50:10 +0530 said verification, he was not allowed to sit in the exam. Therefore, there is no delivery of property in form of the OMR sheet to the accused. Hence, offence under Section 420 IPC is not made out.
DEFICIENT INVESTIGATION -
30. Ld. counsel for the accused has next argued that the IO did not seize the biometric machines and further did not collect the fingerprints of the accused for FSL examination. He further contends that PW6 and PW7 have also deposed that the biometric machines are not always accurate. He contends that these circumstances are enough to exonerate the accused. Per contra, Ld. APP for the State has contended that these circumstances have no effect on the merits of the case and tainted investigation is no ground for acquittal.
31. IO PW5 has admitted in his deposition that he did not seize the dossier of A-2, biometric record and the biometric equipment to verify the attendance of the accused. The IO also admitted not sending the finger prints of the accused to FSL. Without doubt, this is lapse on the part of the investigating officer. Further, PW6, while not deposing particularly about the present case, deposed that test is repeated 2-3 times if the finger prints shows no match. This is possible due to wear and tear. If despite repetition, the status remains as 'no-match', the operator informs Delhi Police. PW7, who was on duty at the date of incident, has deposed similarly. He also did not remember this particular incident but deposed that no match may occur due to weather conditions, wear and tear etc. He further stated that even for genuine candidates, no-match may occur due to technical problems. He stated that he Digitally signed by DEV Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 19 of 23 DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:50:15 +0530 had not handed over the finger print equipment to the police.
32. In so far as the lapses of the IO are concerned, it is settled law that defective investigation is not a ground for acquittal as this would tantamount to playing into the hands of the investigator. Reliance is placed on Karnel Singh vs. State of M.P. 1995 (5) SCC 518 in this regard. As such, this Court has to ascertain if regardless of this defective investigation, there is sufficient material to implicate the accused persons, keeping in mind the testimonies of PW6 and PW7. In this regard, the fact that the biometric machines were not seized and the possibility that machines may also show no match even for genuine candidates, is of no help to the accused in the present case. Had the case been that there was only one accused, who had contended that although his biometric authentication failed, he was the same candidate as reflected in the admit card, the biometric data would have assumed significance. In the present case, there are two separate accused persons, whose identity is not disputed. It is proved on record that A-1 was present on the date of incident, and A-2, who was the original candidate, is different. PW3 has deposed that A-2 had surrendered in Court, much later, on 27.02.2015 and he alongwith IO PW5 has identified A-2 in Court. In such a scenario, the biometric data would not be of much relevance, since the purpose of the same was only to verify the identity. It is not the case of the defence that A-1 was also a candidate in the said exam and was present to participate as his own.
CRIMINAL CONSPIRACY -
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33. The accused persons have been charged for the offence under Section 120B IPC, alongwith the main offences. In this regard, Section 120A defines that the offence of criminal conspiracy is made out when the conspirators agree to commit an offence, or an illegal act while also taking a step in pursuance of the said conspiracy. With regard to the proof of conspiracy, the observations of Hon'ble Apex Court in Pratapbhai Hamirbhai Solanki v. State of Gujarat, (2013) 1 SCC 613 are relevant. The same are reproduced under :-
"23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
In the present case, it is proved that A-1 was found in possession of the documents including the identity card (DL), photographs and admit card of A-2. Under Section 106 of the Indian Evidence Act, 1872, onus to prove as to how the documents pertaining to A-2 were found in possession of A-1, was that of A-1 himself, he being in special knowledge of the fact. Similarly, A-2 was to explain as to how his admit cards and other documents were in possession of A-1. No material to explain the said circumstance is on record and in the statement of the either accused under Section 313 CrPC, there is no explanation except bare allegation of false implication. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
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34. Therefore, the accused persons have failed to discharge the onus fastened on them and are liable to be convicted for the offence of criminal conspiracy as well. Ld. counsel has also relied upon State vs. Ranvir supra, in support of his contentions. However, the said judgment is not binding on this Court and is not applicable, given the difference in the factual matrix of both cases.
CONCLUSION -
35. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The testimony of official witnesses is coherent and directly implicates the accused. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. Even though there are deficiencies in the investigation done in the present case, but the same when viewed in light of the other evidence on record, are immaterial. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
36. Resultantly, the accused Roshan Kumar and Ajay Kumar Meena are hereby found guilty for offences under Sections 417/419 read with 511 and further under Section 120B read with 417/419 of the Indian Penal Code, 1860 and are convicted accordingly. However, they are acquitted of offence under Section 420 IPC. Let the convicts be heard separately on sentencing.
Digitally
signed by
DEV
DEV CHAUDHARY
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+0530
ORDER -: CONVICTED
Pronounced in open court on 01.11.2021 in presence of accused persons.
This judgment contains 23 pages and each page has been signed by the undersigned. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.11.01 13:50:36 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 01.11.2021 Cr. Case No. 423966/2016 STATE VS. ROSHAN KUMAR & ANR. Page 23 of 23