Delhi District Court
State vs . Dhiraj Kumar on 12 April, 2022
IN THE COURT OF MS. BHARTI GARG, METROPOLITAN
MAGISTRATE09 SOUTHWEST DISTRICT, DWARKA
COURTS, NEW DELHI
STATE Vs. Dhiraj Kumar
FIR No. 81/18
PS Domestic Airport
Under Section 417/447/465/468/471 IPC
Cr. Case no. 6657/2019
CNR no. DLSW020082502019
IN THE MATTER OF:
State ...........Prosecution
Vs.
Dhiraj Kumar
S/o Late Bipin Bihari Sahay
R/o H. no.402, Plot no.F8,
Gautam Budh Nagar, Sagar Presidency,
Sector50, Noida U. P. ...............Accused
1. Name of complainant : Arvind Kumar,
Inspector/Exe. CISF
2. Name of accused : Dhiraj Kumar
3. Offence complained of : Under Sections 417/447/
465/468/471 of Indian Penal
Code, 1860.
4. Plea of accused : Not guilty
5. Date of commission of offence : 30.08.2018
6. Date of institution of case : 19.02.2019
7. Date of reserving judgment : 28.02.2022
8. Date of pronouncement : 12.04.2022
9. Final judgment : Acquitted
State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.1/15
Digitally signed
BHARTI by BHARTI GARG
GARG Date: 2022.04.12
15:34:01 +0530
JUDGMENT
1. The present case pertains to prosecution against accused in respect of offences punishable offence U/s 417/447/465/468/471 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. In nutshell, the case of the prosecution is that on 30.08.2018 at about 03:00 pm, the accused entered into the Airport terminal building through departure gate no.3 by showing the edited ticket. Upon confirmation with Indigo Airlines, the said ticket PNR no. AIFD2P for Indigo Airlines flight no.6E959 from Delhi to Lucknow was found fake. In this manner, the accused gained wrongful entry to a high security restricted public place. The Indigo staff namely Gaurav Malhotra handed over the accused to complainant Arvind Kumar, Inspector/Exe. CISF who was deputed as Departure Incharge at that time. Thereafter, the complainant apprehended the accused and took him to police station where he filed a written complaint. The FIR was registered and the accused was interrogated. The accused disclosed that he had edited the original ticket of his close relative Jyoti in his own name using his mobile phone and entered the Airport to see off his close relative as she was not familiar with the security procedure at Airport. During the course of further investigation, the print outs of the original and edited tickets retrieved from the mobile phone of accused were seized. The arrest of accused was deferred and the statements of witnesses under Section 161 Cr. P. C were recorded. After the completion of investigation, the chargesheet was filed against the accused in court.
State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.2/15 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.04.12 15:34:22 +0530 3. Cognizance of the offences under Sections
417/447/465/468/471 of IPC was taken against the accused and the copy of chargesheet was supplied to him in compliance with Section 207 of Cr. P. C.
4. On the basis of material filed along with chargesheet, charge was framed against the accused for offences u/S 417/419/447/468/471 IPC to which he pleaded not guilty and claimed trial. The accused admitted in his statement under Section 294 of Cr. P. C. the genuineness of FIR registered on 30.08.2018 marked as Ex. A1.
5. In order to prove its case, the prosecution examined two witnesses in all. PW1 Sh. Arvind Kumar (the complainant) deposed that on 30.08.2018, he was deputed as Departure Incharge at Domestic Terminal1D, New Delhi and at about 03:00 pm, the Indigo staff namely Gaurav Malhotra handed over the accused to him as he was found without ticket. On being inquired, the accused stated that he had entered in the terminal building through departure gate no.3 on an edited ticket Ex.PW1/C to see off his wife. After confirming from the Airline Staff vide request letter Ex.PW1/D, the PNR of said ticket was confirmed as fake vide report Ex.PW1/E. Thereafter, an apology letter Ex.PW1/B was written by the accused. The accused was handed over at the police station and a written complaint Ex.PW1/A was filed. He identified the accused correctly in court. The said witness was not crossexamined by the accused despite opportunity given to him.
6. PW2 SI Manoj Kumar (the IO) testified as to the investigation conducted by him. On receiving the complaint State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.3/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:34:42 +0530 Ex.PW1/A, he prepared the tehrir Ex.PW2/A and got the FIR registered. The tehrir was endorsed by the duty officer HC Balwan vide endorsement Ex.PW2/B. He retrieved the original ticket Ex.PW2/D and edited ticket Ex.PW2/E from the mobile phone of accused and seized these vide seizure memo Ex.PW2/C. The accused gave the undertaking which is Ex.PW2/F and copy of his ID proof is Mark B.
7. In his crossexamination, PW2 SI Manoj stated that he did not seize the mobile phone of accused from which the original and edited tickets were retrieved as there was no requirement of the phone. He could not tell the make of said mobile phone. He could not recall if it was a smart phone or not. He further could not remember if it was dual sim or not. He stated that he had recorded the mobile number of accused during investigation but the same is not mentioned on record. He did not check the IMEI number of phone. He also did not check if the data was retrieved from the phone memory or memory card of phone. He stated that the data was recovered from the gallery folder and it was in photo format and not the PDF format. He denied the suggestion that the original and edited tickets on record were not retrieved from the mobile phone of accused.
8. On account of the admission of genuineness of FIR Ex.A1 by the accused under Section 294 Cr.P.C, PW HC Balwan was dropped from the list of prosecution witnesses and his examination in that regard was dispensed with. Digitally signed by BHARTI BHARTI GARG Date:
GARG 2022.04.12
15:34:57
+0530
State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.4/15
9. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against him in the evidence were put to the accused. The accused abjured his guilt and stated that he has been falsely implicated in the present case. He further stated that he had gone to the Airport to see off the mother of colleague. He did not have any smart phone then and had only shown his Aadhar card to enter the Airport but did not make any fake ticket. When he was coming out of the Airport, an Airline official intercepted him and when he could not show his flight ticket, CISF official was called at the spot. He was asked to write the apology letter by CISF official on the pretext that he shall be let off and forgiven by the Senior Commandant. However, they took him to the police station and filed this case falsely.
10. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The statements of both prosecution witnesses corroborate each other and there is no material discrepancy occurring in their evidence. The recovery of forged ticket from the mobile phone of accused is also proved and the accused himself admitted in his apology letter about committing the alleged offence. Therefore, it is prayed that the accused be convicted of alleged offences.
11. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on multiple grounds. He has argued that the recovery of tickets is not proved beyond all reasonable doubts as the mobile phone has not been seized by IO. It is contended that the State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.5/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:35:20 +0530 accused was made to write the apology letter forcefully as the CISF staff had allowed him to enter the Airport merely on the basis of Aadhar card without looking at his ticket. The alleged forged ticket has been planted upon him in order to cover up the error committed by the CISF official. Lastly, it is asserted that the basic elements of the alleged offences are also not fulfilled in the present case as the prosecution failed to prove any criminal intention on the part of accused.
12. Arguments heard. Record perused. Considered.
13. Before delving into merits, it is pertinent to give a brief outline of the offences alleged against the accused. For the offence of cheating under Section 417 IPC, it has to be proved that the accused deceived the official at the entry gate of Airport terminal building by showing a forged flight ticket and thereby intentionally induced the official to allow him to enter the terminal building. For proving Section 419 IPC, it must be brought on record that the accused cheated by pretending himself to be some other person. The offence of Section 468 IPC shall be attracted by proving that the accused forged the flight ticket in his name for the purpose of cheating, whereas for section 471 IPC, it has be shown that the accused had fraudulently or dishonestly used such forged ticket as genuine knowing or having reason to believe that it was forged. The charge of Section 447 IPC shall succeed by proving that the accused unlawfully entered the terminal building with an intention to commit offence or to intimidate, insult or annoy any person therein. Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:35:42 +0530 State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.6/15
14. At the outset, the testimony of PW1 Arvind Kumar qua the fact that the accused was intercepted while he was coming out of Airport terminal building on 30.08.2018 without any flight ticket is corroborated by the admission of accused to that effect in his statement under Section 281 read with Section 313 Cr.P.C. Thus, it is not in dispute that the accused had entered the terminal building without carrying any flight ticket on 30.08.2018. It is of common knowledge that one cannot ordinarily enter the Airport terminal building without having a flight ticket or an Airport Entry Pass. The crucial point that falls for determination of present case is whether the accused had prepared a forged flight ticket and used it at the entry gate to gain entry into the building.
15. It is evident from record that none of the witnesses cited by prosecution themselves saw that the accused had prepared the forged ticket or that he had used that ticket at the entry gate to enter into the building. The mainstay of the evidence of PW1 Arvind Kumar is the statement made by the accused before him. In other words, there is no eyewitness to the occurrence and the entire prosecution case hinges on the circumstantial evidences.
16. There is no gainsaying that in cases founded on circumstantial evidences, the inference of guilt of accused must be cogently established. The following are five golden principles which must be considered for the adjudication of guilt of accused in cases based on circumstantial evidences, as enunciated by Hon'ble Supreme Court in Sharad Birdhichand Sards Vs. State of Maharashtra (1984) Digitally signed 4 SCC 116: BHARTI by BHARTI GARG GARG Date:
2022.04.12 15:35:50 +0530 State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.7/15 "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency,
4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
17. Adverting to the case at hand, the prosecution has mainly relied on the circumstances viz. (a) extra judicial confession of accused and (b) recovery of forged flight ticket. It has to be examined in light of abovestated principles if the prosecution has proved these circumstances by compelling evidences and whether such circumstances unerringly point towards the guilt of accused.
18. Extrajudicial confession: 18.1 PW1 Arvind Kumar stated that the accused had disclosed before him during enquiry that he had entered into the building through departure gate no.3 using an edited ticket Ex.PW1/C to see off his wife and an apology letter Ex.PW1/B was written by him in that regard. It is additionally mentioned in the apology letter that he had created the forged ticket by photoshop in order to accompany his wife Jyoti till the boarding pass counter as she was not familiar with security procedure at the Airport. Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.12 15:35:58 +0530 State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.8/15 18.2 Notably, the nature of this statement made by accused qualifies as an extra judicial confession, as it contains an admission by the accused suggesting an inference that he committed the offence of cheating, forgery and criminal trespass. The precepts in respect of evidentiary value of an extrajudicial confession have been summarised by the Hon'ble Supreme Court in the case Sahadevan & Anr. Vs. State of Tamil Nadu (2012) 6 SCC 403: "(i) The extrajudicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extrajudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
18.3 Therefore, the court must be circumspect in basing the conviction on extrajudicial confession unless it is corroborated by other evidences on record. Applying these principles of law to the instant case, the extrajudicial confession has been made before a CISF official on duty after he was caught by Airline staff without ticket. It may be emphasized here that the accused stated in his defence that he was made to write the apology letter on the pretext that he would be forgiven. Thus, the possibility of such statement having been made by accused under pressure with an intent to avoid further detention by CISF officials at the Airport cannot be ruled out. In such an event, it State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.9/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:36:11 +0530 cannot be said that such extrajudicial confession was made by the accused voluntarily.
18.4 Another ground which makes the said confession dubious is that it is materially incoherent with the undertaking Ex.PW2/F allegedly made by accused at the police station. In the said undertaking, the person Jyoti who he had gone to see off at the Airport, has been mentioned as the close relative of accused. However, it is not common to use the words 'wife' and 'close relative' interchangeably with such levity in any parlance. Such an expression is ludicrous, so to say. Moreover, the accused has not revealed in his confession about the mode of photoshopping the flight ticket, although he stated in his undertaking that he had edited the ticket of Jyoti on his mobile phone and then taken its screenshot. In this manner, the confession is conspicuously silent about the modus operandi adopted by accused in forging the ticket. The omission of this significant fact further comprises a material discrepancy in the confession, thereby warranting the need for corroboration by other evidences before it can be relied upon to convict the accused.
19. Recovery of forged ticket:
19.1 As per the version of PW1 Arvind Kumar, the edited ticket was got verified by him from the Indigo Airlines and it was reported to be fake vide letter Ex.PW1/E. Be that as it may, the witness has not stated anywhere as to how the said ticket was obtained by him from the possession of accused. A cursory glance at forged ticket Ex.PW1/C reflects that it is a photocopied document. Nonetheless, it is not clear State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.10/15 Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.12 15:36:45 +0530 whether the ticket was produced by the accused before the complainant in the form of hardcopy as such photocopied document or it was procured from the mobile phone of accused. The complainant did not prepare any seizure list of the ticket. This is inevitably a glaring loophole in light of the fact that the IO has seized not the photocopied ticket Ex.PW1/C vide seizure memo Ex.PW2/C, but the soft copy of ticket from the mobile phone of accused in the form of print out Ex.PW2/E. In view thereof, the testimony of PW1 Arvind Kumar suffers from serious infirmities as regards the fact of seizure of forged ticket from the possession of accused.
19.2 Furthermore, as per the seizure memo Ex.PW1/E, the IO had checked the internal memory of phone of accused and retrieved the forged eticket from the screenshot folder, whose print out Ex.PW2/E was taken via data cable. However, the print out of ticket is not supported with the mandatory certificate under Section 65B of The Indian Evidence Act, 1882 which makes it inadmissible in evidence altogether. Besides, the mobile phone of accused from which the ticket was allegedly retrieved is not seized by the IO and he also failed to recount the basic details of the mobile phone, which otherwise could have lent credence to the veracity of recovery proceedings. It is not proved by any shard of evidence that the alleged forged ticket placed on record by prosecution was recovered from the possession or mobile phone of accused. In the totality of circumstances, one cannot deny the possibility that the forged ticket was planted upon the accused, thereby rendering the entire recovery proceedings doubtful.
Digitally signed by BHARTI BHARTI GARG
GARG Date:
2022.04.12
15:36:53 +0530
State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.11/15
20. Moving further, there are other lacunae apparent from record which discredit the prosecution story. The Airline staff official namely Gaurav Malhotra who had handed over the accused to PW1 Arvind Kumar has not been examined by IO for reasons best known to him. As per the version of prosecution, Gaurav Malhotra was the first person who had caught the accused without ticket at the airport, but the fact of edited ticket was brought to light by accused before PW1 Arvind Kumar and not Gaurav Malhotra. This seems absurd for the reason that had the accused intended to cheat by the use of forged ticket, he would have reasonably shown the ticket to Gaurav Malhotra in the first place and not run the risk of being enquired at the hands of police officials. In these circumstances, the nonexamination of Gaurav Malhotra shrouds the prosecution story with greater suspicion.
21. Further, there is no admissible evidence on record to establish the manner in which the accused forged the ticket. The undertaking Ex.PW2/F is the only material produced by prosecution in that regard, but it is inadmissible in evidence as against the accused being hit by Section 26 of The Indian Evidence Act, 1882. Even if one were to assume the possession of forged ticket by accused in his mobile phone as true, it would fall short of entailing penal liability in respect of the offence of forgery for lack of compelling evidence on record to prove that the forged ticket was prepared by the accused.
22. Likewise, the act of accused of entering the terminal building by the alleged use of forged ticket cannot be said to have been established by the mere possession of forged ticket without procuring the evidence of the official before whom the accused had purportedly State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.12/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:37:21 +0530 flashed the ticket to secure entry inside the building. The failure of IO in identifying and examining the said official leads to the only reasonable conclusion that the accused managed to have a free ride into the terminal building on that day, oblivious of the agony that was destined to cost his time and money for next three years in the form of criminal trial. The best evidence, in the form of oral testimony of said official, to prove the offence of cheating has not been adduced which adversely affects the credibility of prosecution case. Further, there is no allegation on record about the accused having pretended himself to be some other person.
23. It transpires from the material on record that the two primary circumstances on which the prosecution laid the foundation of its case are insufficient to constitute a cogent chain linking the accused with the forged ticket. The extra judicial confession is not corroborated by any other evidence on record. The prosecution has miserably failed to establish the recovery of forged ticket from the possession of accused. The IO has kept from record the version of two material witnesses as discussed, which raises an adverse inference against the prosecution that their evidence would have been unfavourable to its case. As discussed hereinabove, the offences of cheating under Section 417 and 419 IPC are clearly not made out and as a corollary, the ingredients of forgery for the purpose of Section 468 and 471 IPC are also not fulfilled.
24. Lastly, the offence of criminal trespass is not established for want of mens rea on the part of accused. Since the charge of cheating and forgery has failed to be established, it is not the case that State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.13/15 Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.04.12 15:37:36 +0530 the accused entered into the building without a valid ticket for committing any offence. In that situation, it was imperative for the prosecution to show that the accused intended to intimidate, insult or annoy any person at the Airport. The only fact that is brought to surface is that he had entered into the terminal building to see off his close relative and help her out in clearing the security procedure at Airport. It is amply clear that there is no intention to intimidate, insult or annoy any other person at the Airport, rather to accompany his relative at the Airport. At the most, the element of knowledge could be imputed on accused that he might annoy the officials at the Airport by unlawfully entering the terminal building, but intention is a mental state of graver degree and ought not be slightly inferred. Mere unauthorized occupation of premises without the requisite criminal intention may be a trespass but not criminal trespass. Guidance in that regard is sought from the judgment of Kanwal Sood Vs. Nawal Kishore (1983) 3 SCC 25. Hence, culpability under Section 447 IPC is not proved.
25. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond the shadow of reasonable doubts and the benefit of such reasonable doubt must necessarily accrue to the accused. Several reasonable doubts have emerged in the narrative put forth by prosecution as analysed hereinabove and the evidence of prosecution witnesses does not inspire confidence as regards the culpability alleged against the accused. Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.04.12 15:37:44 +0530 State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.14/15
26. The upshot of the discussion in foregoing paragraphs is that the prosecution has failed to prove the charges under Sections 417/419/447/468/471 IPC against the accused beyond all reasonable doubts. The inescapable conclusion is that the accused is entitled to benefit of doubt. Resultantly, the accused Dhiraj Kumar S/o Late Bipin Bihari Sahay R/o H. no.402, Plot no.F8, Gautam Budh Nagar, Sagar Presidency, Sector50, Noida U. P. is hereby acquitted of the offences punishable under 417/419/447/468/471 of The Indian Penal Code, 1860.
Pronounced in open court in the Digitally signed
by BHARTI
presence of accused on 12.04.2022. BHARTI GARG
GARG Date:
2022.04.12
15:37:50 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/12.04.2022
It is certified that this judgment contains fifteen pages and each page has been signed by the undersigned.
Digitally signed BHARTI by BHARTI GARG
GARG Date: 2022.04.12
15:37:56 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/12.04.2022
State Vs. Dhiraj Kumar CNR no. DLSW020082502019 Page no.15/15