Delhi District Court
State vs Nasir Hafiz Khan on 6 November, 2023
IN THE COURT OF MS. NEETIKA KAPOOR, MM-02, WEST DISTRICT, TIS
HAZARI COURTS, DELHI.
DLWT02-008153-2017
FIR Number : 178/2017
P.S. : Rajouri Garden
U/s : 420/468/471/474//411 r/w 34 IPC
STATE VS. NASIR HAFIZ KHAN @ SAMEER ALI @ IRANI & ORS.
a) Cr. no. of the Case : 68188/2016
b) Name & address of the Complainant : Ramesh Kumari Verma
W/o Subhash Chander
Sharma, R/o H. No.
J-/143, Rajouri Garden
c) Name & address of accused : (1) Nasir Hafiz Khan @
Sameer Ali @ Irani S/o
Hafiz Khan, R/o H. No.
48, 2nd Floor, Masjid Lane
Bhogal, Delhi & T-73,
Basti Nizamuddin, Delhi
& Permanent R/o H. No.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 1 of
29, Irani Basti, Patil
Nagar, Ambivali, Tehsil
Kalyan, District Thane,
Mumbai, Maharashtra.
d) Date of Commission of offence : 09.04.2017
e) Offence complained of : 420/468/471/474/411 r/w
34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Accused Nasir Hafiz
Khan @ Sameer Ali @
Irani is acquitted for u/s
420/468/471//474/34 IPC
but convicted for offence
u/s 411 IPC.
Date of registration of FIR : 09.04.2017
Final arguments heard on : 25.07.2023
Judgment Pronounced on : 06.11.2023
JUDGMENT
1. The accused Nasir Hafiz Khan @ Sameer Ali @ Irani is facing trial for the commission of offences punishable under Sections 420/468/471/474/411 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 178/2017 registered at P.S. Rajouri Garden.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 2 of
2. Briefly stated, the case of the prosecution is that on 09.04.2017 at about 9:30 am, complainant Ramesh Kumari Verma and her husband Subhash Chander Verma were going to cast their vote in a rickshaw and as soon as they reached House No. J-5/23, Rajouri Garden, they saw two persons standing near a motorcycle. Both of them asked her to remove her gold articles i.e. one ring and two bangles and put them in her pocket as some incident had taken place ahead. Hearing this, complainant removed her articles and gave them to both the persons who wrapped the articles in white paper and handed over the same to her husband who kept the same in his pocket. After reaching the place where they had gone to cast their vote, complainant and her husband checked the articles but found the same to be fake as they had been replaced by those two persons. Feeling aggrieved complainant and her husband visited PS Rajouri Garden where she gave a written complaint and handed over the fake jewellery articles to the IO. Based on her complaint, rukka was prepared and consequently present FIR was registered and SI Sumer Singh was appointed as Investigating officer of the case.
3. During investigation, IO seized the fake jewelery articles handed over by the complainant. On 14.04.2017 at about 7:00 am, IO received an information regarding two persons namely Asu and Nazir residing in Bhogal and based on this information, IO constituted a raiding party consisting of SI Sandeep Dabas, ASI Dilbagh, ASI Dipender, HC Vikas, HC Rupesh, Inspector S.S. Sandhu, Ct. Amit, Ct. Yogesh, Ct. Pardeep, Ct. Sunny and himself. Vide DD No. 4 raiding team (in civil dress) left the office at about 8:00 am in a private gypsy bearing No. DL2CAK 5289, one private car and two private motorcycles for House No. 48, 2 nd Floor, Masjid Lane, Bhogal, Delhi where secret informer informed the party that members of Irani Gang reside inside who will be leaving the house at about 1:00 pm for committing crimes. Thereafter, raiding party went ahead and took their positions. Secret informer identified the members of Irani gang namely Asu and Nasir and their two associates. Raiding team apprehended all four members of Irani gang namely, State vs. Nasir Hafiz Khan. FIR no.178/17 Page 3 of Nasir, Asu, Barkat Ali and Zafar Abbas Amjad Sheikh. During personal search of accused Nasir, a blue and grey colored bag was found which contained two ID Cards of Delhi Police in the name of SI Avinash Tiwari with the seal mark of the ACP, three ID cards of Police Mitra with name of Sameer Ali, Yadav Rao having photograph of accused Nasir on police Mitra card in the name of Sameer Ali. All these cards were seized and kept in a plastic sheet sealed with the seal of 'SS'. Aadhaar Card and Pan Card with the name of Sameer Ali bearing photograph of accused Nasir were also seized. Some artificial jewelry was also found in the bag which was also seized by the IO. Three other ID Cards in the name of Om Prakash Anand, Vimlesh Anand and Kawaljeet were also found in possession of accused Nasir. Motorcycle bearing No. DL3SDE 3664 along with its key was also seized by the IO. Apprehended accused persons were taken to office of Special Staff, West District. Site Plan of apprehension was prepared by the IO. One ID card of Delhi police was also recovered from accused Asu. Later, further investigation was marked to ASI Dipender qua role of accused Barkat Ali and Zafar Abbas. Accused Nasir and his associate Asu were interrogated and formally arrested in office of Special Staff. Their interrogation and confession reports were prepared. On 15.04.2017, three days police custody of accused persons was granted by the court and consequently again on 16.04.2017, interrogation and confession reports of accused Nasir and Asu were prepared. On 17.04.2017, the two stolen gold bangles, belonging to the complainant, were recovered at instance of accused Nasir from the almirah in his bed room and same were seized by the IO. Site plan of recovery was prepared. On 19.04.2017, both accused persons were sent to Judicial Custody. During police remand, accused Nasir had disclosed that he had sold the stolen jewellery articles to Rahul Verma and thereafter, on 19.04.2017, accused Rahul Verma was arrested from Alwar. On 21.04.2017, at instance of accused Rahul Verma, a gold ring (belonging to the complainant) was recovered from his jewellery shop and same was also seized. Case property was deposited in Malkhana which was later duly identified by the complainant in the court and same was released to her on State vs. Nasir Hafiz Khan. FIR no.178/17 Page 4 of superdari. Statement of witnesses were recorded and based on material collected, final report in the form of a charge-sheet u/s 420/468/471/474/411 r/w 34 IPC was filed against accused Nasir Hafiz Khan @ Sameer Ali @ Irani, Asu Shahjman Saiyad @ Asu and Rahul Verma.
4. On finding sufficient material on record against accused persons, they were summoned before this court and on their appearance, copies of the challan and other documents were supplied to them in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. During the course of proceedings, accused Asu Shahjman Saiyad @ Asu had failed to appear before the court despite repeated summons and warrants and was subsequently declared an absconder on 29.04.2019.
6. Further, during the course of proceedings, offence u/s 411 IPC disclosed against the accused Rahul Verma was compounded by complainant Ramesh Kumari Verma and statutory acquittal in favor of accused Rahul Verma was pronounced by the court.
7. Thereafter, on finding a prima-facie case against the accused Nasir Hafiz Khan @ Sameer Ali @ Irani under Sections u/s 420/468/471/474 read with 411 and 34 IPC, charge was framed to which he pleaded not guilty and claimed to have a defense to make.
8. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 07 witnesses.
9. PW-1 Ramesh Kumari Verma is the complainant who stepped into the witness box and deposed that on 09.04.2017, she and her husband Subhash Chander Verma were going on a rickshaw to cast their vote in J-13 Block and as soon as they reached near J-5/23, Rajouri Garden, they saw two persons standing State vs. Nasir Hafiz Khan. FIR no.178/17 Page 5 of near a motorcycle. Both of them asked her to remove her gold articles i.e. one ring and two bangles as some incident had taken place due to which she removed her articles and gave the same to two boys who wrapped the articles in a white paper and handed them over to her husband who kept the articles in his pocket. Later, on checking the wrapped articles, they found the same to be fake and exchanged by those two boys. Thereafter, she along with her husband and his friend visited PS Rajouri Garden and narrated the entire incident to police. Her statement was recorded which is Ex.PW1/A. She handed over the fake articles to the IO which were seized vide seizure memo Ex.PW1/B. Witness correctly identified the gold articles belonging to her from the photographs which are Ex. P1. Witness also identified the two fake brass bangles handed over by her to the IO. Witness also identified the remaining case property in the court. During her cross-examination, she failed to identify the accused Nasir due to her old age and health problems. She further failed to identify the bangles that had been changed by the accused due to her old age and health problems. She further failed to recollect the date and time of the alleged incident. She denied the suggestion that alleged incident had not taken place and case property had been planted upon the accused. Witness was examined by Ld. APP for the State on the point of identity of accused Nasir, however, she again deposed that she cannot identify the accused as being a senior citizen she is suffering from various health and old age-related problems. She denied the suggestion that she was deliberately not identifying the accused in the court as she had been won over by the accused or had been criminally intimidated by the accused.
10. PW-2 Retd. SI Gurcharan Singh stepped into the witness box and deposed that on 09.04.2017, he was posted as SI at PS Rajouri Garden on emergency duty and was going back to PS along with HC Sanjeev after attending an emergency call when they met complainant Ramesh Kumari who told them that two persons had fraudulently taken her gold bangles and ring and had handed over fake jewelry articles instead. Witness recorded her statement which is State vs. Nasir Hafiz Khan. FIR no.178/17 Page 6 of already Ex.PW1/A. Witness prepared rukka which is already Ex.PW1/B which was handed over to HC Sanjeev for registration of FIR. Later, further investigation was marked to SI Vikram Singh. In his cross-examination by Ld. Defense counsel, he deposed that he had seen the complainant along with her husband at the spot. No public persons were present at the spot. He further deposed that complainant had informed him that she had been cheated by accused but at that time, no clue of accused persons was found. He denied the suggestion that neither was he present at the spot nor had he witnessed the alleged incident.
11. PW-3 SI Vikram Singh stepped into the witness box and deposed that on 09.04.2017, he was posted as SI at PS Rajouri Garden and the case file was marked to him and next date i.e. 10.04.2017, investigation of the case was transferred to Special Staff, West District by order of DCP, West. He was not cross-examined despite opportunity.
12. PW-4 SI Dilbagh Singh stepped into the witness box and deposed that on 14.04.2017 he was posted as ASI at Special Staff, West District wherein on directions of Inspector Surender Sindhu, a raiding team was constituted consisting of Inspector Surender Sindhu, SI Sandeep, SI Sumer Singh, HC Vikash, ASI Dipender Singh, HC Rupesh, Ct. Pradeep, Ct. Sunny, Ct. Amit and Ct. Yogesh. The raiding team (in civil dress) left the office vide DD No. 4 at about 8:00 am which is Ex.PW4/A on a private Gypsy bearing No. DL-2CAK-5289, one private car and two private motorcycles. Raiding team reached Rajdhani College Bus Stand where IO SI Sumer Singh asked public persons to join the raiding party, however, no one joined and left the spot without disclosing their names and addresses. No notice was given to them to join investigation due to paucity of time. Thereafter, raiding team reached Safdarjung Bus Stand where the IO again requested public persons to join raiding party but in vain. Thereafter, raiding team reached Bhogal at about 9:00 am and took their respective positions around H. No. 48, Masjid Lane, Bhogal, Delhi. At about State vs. Nasir Hafiz Khan. FIR no.178/17 Page 7 of 12:50 pm, four persons came outside and two of them sat on a motorcycle and two sat on a scooty and were about to leave when they were surrounded by the members of the raiding party. Out of four persons, three were apprehended at the spot while the 4th person came down from the motorcycle and tried to run away by running towards the stairs of the house where he was apprehended by SI Sandeep and HC Vikash. On enquiry, all three persons disclosed their names as Asu Shahjman Saiyad @ Asu, Barkat Ali and Zafar Abbas Amjad Sheikh. Fourth person disclosed his name as Nasir Hafiz Khan @ Sameer Ali @ Irani (witness correctly identified the accused in the court). Witness further deposed that accused Nasir was carrying a blue-grey colored bag containing two fake Delhi Police Identify cards having name SI Avinash Tiwari PIS No. DP/24016/07. The bag also contained two Identity cards of Mitra Police of which one was in the name of Nazir Khan with his photograph and address 110/2, Bharlar Kampaund, Narayan Park, Kalyan and the second Identity car having the name Yadav Rao. One PAN card of Income Tax Department having name of Sameer Ali and photograph of accused Nasir, one Aadhaar Card and Voter ID Card in the name of Sameer Ali having photograph Nasir were also found. Same were seized vide seizure memo Ex.PW4/B. Further, two fake ID Cards of Delhi Police having name SI Avinash Tiwari and seal of ACP, three ID Cards of Mitra Police out of which one was of Crime Report Nasir Khan with his photo, the second was Crime Reporter Yadav Rao without his photo and third ID Card which was not legible were also seized vide seizure memo Ex.PW4/C. Thereafter, some artificial jewellery kept in a transparent box and closed with doctor's tape was also found in the bag which was seized and sealed with seal impression 'SS' vide seizure memo Ex.PW4/D. The seal was handed over to the witness thereafter. IO also seized motorcycle bearing No. DL3SDE 3664 of accused Nasir and Asu, of make Yamaha FZS with its key vide seizure memo Ex.PW4/E. On checking on Zipnet, motorcycle was found to be having a fake number plate. Original number was found to be DL3SDC 3664. At about 3:15 pm, they came back to their office with all four accused and case properties. One khakhi colored cap State vs. Nasir Hafiz Khan. FIR no.178/17 Page 8 of along with 3 ID cards in the name of Vimlesh Anand, Om Prakash and Om Prakash Anand, one Aadhaar Card in the name of Kawaljeet were also found in the bag but accused Nasir disclosed that the cards were found in a bag of one woman. All the said cards were seized vide seizure memo Ex.PW4/F. Bag along with the cap was seized vide seizure memo Ex.PW4/G. Both accused Nasir Hafiz Khan and Asu were arrested vide arrest memos Ex.PW4/H and Ex.PW4/I and personally searched vide personal search memos Ex.PW4/J and Ex.PW4/K. Thereafter, disclosure statements and supplementary disclosure statements of both accused were recorded which are Ex.PW4/L, Ex.PW4/M, Ex.PW4/N and Ex.PW4/O. One ID card having seal of ACP was also seized vide seizure memo Ex.PW4/P. Interrogation of other two accused persons Barkat Ali and Zafar Abbas Amjad Sheikh was conducted by ASI Dipender separately. Witness identified the case property i.e. blue and grey coloured bag containing one grey cap, two gold plated bangles in a separate white pullanda with seal of "SS", one motorcycle key, one fake number plate sealed with seal 'SS' and one transparent folder sealed with doctor's tape with seal 'SS' in the court which is Ex. P2. Witness also identified the seized fake ID cards in name of SI Avinash Tiwari which are Ex. P3. Witness also correctly identified the case property consisting of two ID Cards in the name of Sameer Ali Ex. P4. Witness correctly identified the artificial jewellery from the photographs which is Ex. P5(colly). Witness was not cross-examined despite opportunity.
13. PW-5 ASI Vikas stepped into the witness box and deposed that on 14.04.2017, he was posted as HC in Special Staff, West and at 8:00 am, he was instructed to accompany SI Sumer for investigation and thereafter he along with the other members went to Bhogal Lane, Delhi and reached the spot at around 9:50 am. Secret informer informed them that four persons, ( involved in cheating senior citizen by taking away their original gold jewellery articles and handing over artificial jewellery to them), live inside H. No. 48 will come out around 1:30 pm. Witness along with raiding team waited at the spot. Witness further narrated State vs. Nasir Hafiz Khan. FIR no.178/17 Page 9 of the entire chain of events that led to the raid and apprehension and arrest of all accused persons and seizure of entire case property i.e. fake artificial jewellery and ID cards from the accused Nasir. Witness further deposed that confession reports and interrogation reports of accused Nasir and Asu were prepared on 16.04.2017 which are already Ex.PW4/M and Ex.PW4/O. On 17.04.2017, two gold bangles were also recovered from iron almirah situated in the bed room of the accused Nasir which was seized vide seizure memo Ex.PW5/G. Again on 18.04.2017, accused Nasir and Asu were interrogated and interrogation reports were prepared which are Ex.PW4/P. Confession report and interrogation report of accused Nasir were also prepared which is Ex.PW5/B and Ex.PW5/C. During police custody, accused Nasir had disclosed about involvement of accused Rahul Verma and on 19.04.2017, accused Rahul Verma was apprehended from Alwar. Thereafter, his interrogation report which is Ex.PW5/D and confession report which is Ex.PW5/E were prepared. Thereafter, accused Rahul Verma was formally arrested and produced before the court wherein his police custody was taken and at his instance, a gold ring embedded with few diamonds was recovered from the jewellery shop of accused Rahul Verma which was seized vide seizure memo Ex.PW5/H. All the seized articles were seized in presence of the witness. Witness correctly identified the case property in the court. Witness correctly identified the seized articles and artificial jewellery in the court. Witness was not cross-examined despite opportunity.
14. PW-6 Retd. SI Sensar Pal stepped into the witness box and proved endorsement on Tehrir which is Ex.PW6/A, based on which present FIR was registered which is Ex.PW6/B(OSR) and certificate u/s 65B Indian Evidence Act in support thereof is Ex.PW6/C. Witness was not cross-examined despite opportunity.
15. Lastly, PW-7 Retd. SI Sumer Singh, being the Investigating Officer, stepped into the witness box and narrated the entire chain of State vs. Nasir Hafiz Khan. FIR no.178/17 Page 10 of events that led to constitution of raiding party and subsequent apprehension of accused persons and seizure of the case property. After arrest of all accused persons and seizure of case property, case property was deposited in Malkhana. Witness duly proved all the seizure memos Ex.PW4/B......................Ex.PW4/P, all bearing his signatures at point B. Site plan was prepared by witness which is Ex.PW7/D. Verification of the fake ID cards recovered from accused persons was gotten done by the witness which were found to be fake. Report in this regard is Ex.PW7/E. Witness also got verified the fake election card from the office of Assistant Electoral Registration Officer, Lajpat Nagar, Delhi wherein it was informed that the said voter ID card was issued in the name of Sameer Ali and not Nasir Ali. Report in this regard is Ex.PW7/F. Witness also got verified the Aadhaar Card from the office of UIDAI wherein it was informed that the information would be provided on the order of the court not below the rank of District Judge. Report in this regard is Ex.PW7/G. On completion of investigation, charge-sheet was filed by the witness. Witness correctly identified the case property and the documents seized during investigation. Witness was not cross-examined despite opportunity. This is the entire evidence on record.
16. Thereafter, statement of accused u/s 294 r/w 281 CrPC was recorded wherein accused Nasir Hafiz Khan @ Sameer Ali @ Irani admitted TIP proceedings of case property which is Ex. A1, TIP of accused Nasir and Asu which is Ex. A2, TIP of case property which is Ex. A3, reply regarding Voter ID Card verification of Electoral Registration Officer which is Ex. A4 and reply regarding Aadhaar Card verification given by Section Officer, UIDAI which is Ex. A5. This is the entire evidence on record. Thereafter, PE was closed.
17. Thereafter, statement u/s 313 Cr.PC of the accused Nasir was recorded wherein he denied the case of the prosecution and claimed to have been falsely implicated in the present case. He denied his presence at the spot on the date and time of the alleged incident and further denied that no recovery had been State vs. Nasir Hafiz Khan. FIR no.178/17 Page 11 of made from him. He further stated that although Nasir was his birth name but he had adopted Sameer Ali as his name post his marriage. He opted not to lead any evidence in their defense. Thereafter, final arguments were heard.
18. I have heard Mr. Aditya Trehan, Ld. APP for State and Ms. Surbhi Bhasin, Ld. LAC for the accused and have gone through the records carefully.
19. It is argued by the Ld. APP for the State that all the ingredients of the offences are fulfilled in the present case. Identity of the accused is not disputed and occurrence of the offence is established. As such, it is prayed that the accused be punished for the said offences.
20. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. She has contended that there are inconsistencies in the version of complainant and no public witnesses have been examined to corroborate the version of the complainant. Thus, it is asserted that prosecution has failed to prove his case beyond reasonable doubt. As such, it is prayed that the accused be acquitted for the said offences.
21. Based on evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on 09.04.2017 at about 9:30 am in front of J-5/23, Rajouri Garden, accused Nasir along with co-accused Asu Shahjman Saiyad @ Asu (declared PO) in furtherance of their common intention induced the complainant Ramesh Kumari Verma asked her to deliver her jewelry i.e. gold ring and bangles to him and exchanged them with fake jewelry articles, as alleged?
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 12 of
2. Secondly, whether on the aforetasted time, date and place, accused Nasir in furtherance of his common intention along with his co-accused Asu (declared PO) impersonated himself to be a police official and showed forged ID cards to the complainant for the purpose of cheating her and fraudulently and dishonestly used forged ID cards knowingly or having reason to believe the same to be a forged document for the purpose of cheating, as alleged?
3. Thirdly, whether on 14.04.2017 at unknown time at H. No. 48, Second Floor, Masjid Lane, Bhogal, accused Nasir was found in possession of forged ID cards of Delhi police, Mitra police, Aadhar and voter Id-Cards intending the same to be used as genuine, as alleged?
4. Fourthly, whether on 17.04.2017 at an unknown time at H. No. 48, Second Floor, Masjid Lane, Bhogal, Delhi, two gold bangles belonging to complainant which were stolen on 09.04.2017 at 9:30 am, were recovered at instance of accused Nasir who had received or retained, knowingly or having reason to believe the same to be stolen property, as alleged?
5. Final order.
22. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: NO State vs. Nasir Hafiz Khan. FIR no.178/17 Page 13 of Point No. 2: NO Point No. 3: NO Point No. 4: YES Final order: Accused Nasir Hafiz Khan @ Sameer Ali @ Irani is acquitted for offences u/s 420/468/471/474 r/w 34 IPC but convicted for offence u/s 411 IPC. REASONS FOR FINDINGS POINT NO. 1, 2, 3 and 4
23. All these points being inter-linked and inter-connected are taken up together for sake of brevity.
24. It is trite that in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points unerringly towards the guilt of the accused. The evidence in the case at hand, is to be weighed keeping in view these legal standards. Therefore, the burden is on the prosecution to prove the ingredients of the afore-said offences.
25. It is the case of the prosecution that on 09.04.2017 at about 9:30 am in front of J-5/23, Rajouri Garden, accused Nasir along with co- accused Asu (declared PO), in furtherance of their common intention, had induced and deceived complainant Ramesh Kumari Verma to deliver her property i.e. two gold bangles and one gold ring and had taken away her real gold jewelry articles and returned fake jewelry articles in a white paper to her and subsequently, said stolen two bangles were subsequently recovered at his instance on 17.04.2017, which he had received or retained, knowingly or having reason to believe the same to be stolen State vs. Nasir Hafiz Khan. FIR no.178/17 Page 14 of property and additionally, on 14.04.2017 accused Nasir was found in possession of forged ID cards of Delhi police and Mitra Police and Aadhaar and Voter ID Card in the name of Sameer Ali which he had used or intended to have used as genuine for purpose of cheating, and thereby committed offences punishable under sections 420, 468,471, 474 and 411 read with 34 IPC.
26. The major assertion of Ld. LAC for the accused is that no independent witnesses were joined by the police during the whole investigation and same is doubtful. Although non-joining of independent witness cannot be a sole ground to discard the evidence of police witnesses, however, in the present case, as per the version of the members of the raiding party, the spot of the raid conducted on 14.04.2017 when accused Nasir was arrested, was a crowded place i.e. a residential area but no public persons were present at the time of raid. Admittedly, no notice was issued to public persons in and around the spot of raid to join investigation. PW-4, PW-5 and PW-7, being members of the raiding party, have deposed that on 14.04.17, the raiding team had left the office of Special staff at about 8.00 AM and had reached the spot i.e. H. No. 48, Bhogal Lane, Delhi at about 9.50 AM where they met secret informer who informed them that members of Irani gang resided inside the premises who had been involved in various crimes and in order to apprehend them members of the raiding party took their positions and waited till 12.50 PM when the suspects came out of the house and were apprehended by the raiding party. PW-4 further deposed that they had returned to Office of Special Staff at about 3.15 PM with accused and the seized case property. The time of raid is about 12.50 - 1.00 PM in a busy area i.e., Bhogal lane, which is usually full of public persons and police officials were not hard pressed for time. As per documentary evidence there was ample time. The raiding party had left office of Special Staff, West at about 8.00 am and after reaching the spot at about 9.50 am, had taken their positions and waited till 12.50 pm when the raid was conducted and police officials had returned to the office at around 3.15 PM. Evidently, police officials were not hard pressed for time, however, despite being at the spot for State vs. Nasir Hafiz Khan. FIR no.178/17 Page 15 of around 5-5.5 hours, they could not join any independent witness. Inevitably all the police officials deposed that accused persons were present at the spot which being a residential area, was itself a crowded place full of public persons which in itself points towards presence of public persons. The fact that despite availability, no public person was joined in approximately 05 hours, casts doubt on the version of the prosecution. No sincere attempts were made by the police to join witnesses in the raid or the present case and no cogent explanation has been furnished by the prosecution in this regard.
27. However, even if, for sake of arguments, the afore-
stated lacunae in the investigation are kept aside and the prosecution story regarding the events that led to raid and the apprehension of accused and seizure of case property is accepted, the same is not sufficient to prove the case beyond reasonable doubt as clear and cogent must have been brought on record to establish that on 09.04.2017, accused Nasir Hafiz Khan @ Sameer Ali @ Irani along with co-aacused Asu (declared PO) had induced and deceived the complainant Ramesh Kumari Verma to deliver her property i.e. gold jewellery and had returned fake jewelry articles to her and stolen gold bangles were subsequently recovered at his instance on 17.04.2017 and additionally, on 14.04.2017, accused Nasir was apprehended with a bag containing forged and fabricated documents i.e. Identity Cards of Delhi Police, Mitra Police and Aadhaar and voter Id Cards in the name of Sameer Ali bearing his photograph which he had used or had intended to use as genuine for purpose of cheating.
28. At the outset, accused Nasir has been charged for the offences of cheating and dishonestly inducing delivery of property (S. 420 IPC). 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-:
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 16 of "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. "
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.
Section 420 IPC 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 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.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 17 of
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
29. Therefore, the burden is on the prosecution to prove the aforesaid ingredients of the offence. In order to prove the offences charged against the accused Nasir, the prosecution has relied upon the testimony of 07 witnesses. Out of the said witnesses, the testimony of PW1 Ramesh Kumari Verma, being the complainant, is of prime importance for the prosecution. Her testimony is to be evaluated in light of the legal principles mentioned above. From the overall appreciation of the testimony of the star witness PW-1, this Court is of the opinion that the same cannot be relied upon beyond reasonable doubt. PW-1, though in her testimony has supported the prosecution story but only to a limited extent by deposing that on 09.04.2017, she and her husband were going on a rickshaw to cast their vote when two persons had asked them to remove her gold articles as some incident had taken place and consequently, she gave her articles to both the persons who wrapped them in a white colored paper and returned the same to her husband which was later found to be fake. However, pertinently, testimony of PW-1 with regard to presence of accused Nasir at the spot suffers from inconsistencies as she failed to identify accused Nasir in the court. In her statement and the FIR, the complainant has stated that on the date of incident, two boys had stopped her on the road and asked her to remove her jewelry articles and had wrapped the same in a white paper and had fraudulently returned fake jewellery articles to her, however, when the complainant took the stand as PW1, she failed to depose about the presence of accused Nasir on the spot.
Therefore, the version of the star witness in this regard suffers from contradictions and is not sufficient to establish the presence of the accused on the spot at the time of alleged incident and thus, is not reliable on the point as to whether accused Nasir was the one who had dishonestly induced the complainant to deliver her real gold jewellery articles to him and had handed over fake jewellery articles to her on the date of alleged incident.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 18 of
30. It is apposite to mention at this juncture that the evidence of the prosecution witness on this point is significant in this case as it is the case of the prosecution that after the initial inducement by the accused Nasir and co- accused Asu (declared PO) by asking her to remove her gold jewellery articles, the complainant had parted with her property (gold jewellery). Therefore, the evidence on the point as to who was present on the date of inducement and delivery of property assumes significance in the present matter. However, it is seen that PW1 has failed to depose about the presence of accused Nasir or the fact that he was one of the boys who were present at the spot on the day of the alleged incident.
31. No other public witness has been examined to establish the identity of the accused on the spot on the day of the incident beyond reasonable doubt. Even though PW-2 has deposed to have met the PW-1 and her husband on the day of the alleged incident but the said witness also failed to disclose about the involvement of accused in the present matter and simply deposed that boys involved in the alleged incident were not found at the spot by him. There is no other witness to establish the presence of the accused on the spot at the time of alleged incident as rest of the witnesses being police witnesses had admittedly reached the spot after registration of FIR and could only explain the factum of investigation carried out by them but could not narrate the factual matrix of the alleged incident. As such, nothing has been brought on record to establish the presence of accused Nasir and dishonest inducement on his part on the day of the alleged incident beyond reasonable doubt. Thus, in view of the above discussion, it is safe to conclude that testimony of PW-1, in absence of any corroborative material, is not sufficient to attract offence u/s 420 IPC against the accused Nasir.
32. Moving forward, accused Nasir has also been charged for offence of forgery for purposes of cheating (S. 468 IPC) and using as genuine a forged document or electronic record (S. 471 IPC) and having a forged document in State vs. Nasir Hafiz Khan. FIR no.178/17 Page 19 of his possession knowing it to be forged or intending it to be used genuine (S. 474 IPC) in the present case. The allegations in this regard are that on the day of the alleged incident i.e. 09.04.2017, accused Nasir had impersonated himself to be a police officer in front of complainant Ramesh Kumari Verma by showing forged ID Cards of Delhi police in order to commit cheating upon her and subsequently, on 14.04.2017, accused Nasir was found in possession of one grey-blue coloured bag containing forged documents such as Identity cards of Delhi Police bearing seal of ACP concerned and fake Aadhaar and Voter ID Cards which he had retained knowing to be forged or intending to use them as genuine. The forgery is alleged with respect to the identity cards of Delhi police, Mitra Police and Aadhaar and Voter ID Cards etc. found in possession of accused Nasir. Section 468 IPC prescribes punishment for forgery for the purpose of cheating where Section 471 prescribes punishment for using as genuine a forged document or electronic record and Section 474 prescribes punishment for having possession of document described in Section 466 or 467 knowing it to be forged and intending to use it as genuine. All these Sections are reproduced hereinbelow:
"468. Forgery for purpose of cheating--Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
474. Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it genuine--Whoever has in his possession any document or electronic record, knowing State vs. Nasir Hafiz Khan. FIR no.178/17 Page 20 of the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the descriptions mentioned in section 466 of this Code, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with imprisonment for life, or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine."
33. The term 'forgery' used in Section 468 IPC has been defined in under Section 463 IPC. The basic elements of the offence of forgery, as per Section 463 IPC, are listed in the authoritative pronouncement of Hon'ble Supreme Court in Sushil Suri vs. Central Bureau of Investigation 2011 (5) SCC 708 in the following words:
(1) The making of a false document or part of it and (2) Such making should be with such intention as is specified in the section, viz.,
(a) To cause, damage or infringe to (i) the public, or (ii) any person
(b) To support any claim or title;
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed
34. Thus, it is the maker of a false document, having the intention as specified in the Section, who can be said to have committed the offence of forgery and no one else. {Refer: Sheila Sebastian vs. R. Jawaharaj, Criminal Appeal Nos. 359-360 OF 2010, decided on 11.05.2018, where the Hon'ble Supreme Court held that a charge of forgery cannot be imposed on a person who is not the maker of the same}. It is thus, imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. The definition of "false document" is a part of the definition of State vs. Nasir Hafiz Khan. FIR no.178/17 Page 21 of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
35. As per Section 464 IPC, a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. In the case in hand, there is not even an iota of evidence on record to suggest that accused charged under Section 468 IPC has made the documents i.e., Identity cards of Delhi police, Police Mitra, Aadhaar and Voter ID cards etc. that have been seized by the IO at the time of raid. It is significant to note that no witness has been examined by prosecution to prove that any of the documents recovered from the possession of the accused Nasir were actually forged by accused himself. No doubt, a report has been obtained by IO from the concerned Office of Dy.
Commissioner, West regarding verification of Identity Card which states that centralized, non-cloneable Identity Cards project was started in the year 2010 with bar code and Identity Card mentioned in the photocopy is not prepared and issued by this office however, same is not sufficient to hold that ID card had been forged by the accused Nasir. Moreover, reply from Office of Assistant Electoral Registration Officer, Food and Supply Office Complex, Jal Vihar Road, Lajpat Nagar-2, New Delhi which is Ex A-4, only confirms that Voter ID card bearing no. XHC1907995 sent for verification had been issued in the name of one Sameer Ali but does not state the same to be forged. Report from UIDAI Regional office which is Ex. A-5, regarding verification of Aadhar Card recovered from the accused also does not establish the document to be forged by the accused. As such, nothing has been brought on record by prosecution to suggest that the said documents i.e. Voter ID Card, Aadhaar card or Delhi police Identity Cards were not genuine and had been forged by accused Nasir.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 22 of
36. So far as the charge u/s 471 IPC is concerned, the accused has been charged under the said section on account of alleged use by him of the aforesaid forged documents i.e. ID Cards etc. as genuine having knowledge or reasons to believe the same to be forged. For conviction of the accused u/s 471 IPC , it was incumbent upon the prosecution to prove the use of aforesaid forged documents by the accused persons knowing or having reason to believe that the same were forged. Coming to the charge u/s 474 IPC, the accused has been charged for the offence u/s 474 IPC having been found in possession of various forged documents including identity cards, Aadhaar card and voter ID cards intending to use the same dishonestly as genuine. It was, thus, imperative for the prosecution to establish that accused had the intentionally used as genuine these forged ID cards or had them in his possession knowing or intending the same to be used as genuine.
37. In this regard again testimony of PW-1 is critical to the case of the prosecution. It is evident that PW1 in her statement simply stated that two persons were standing near the motorcycle who came to her and asked her to remove her gold jewelery articles as some incident had taken place but nowhere stated that two boys had pretended themselves or had impersonated to be police officials and had showed fake ID cards to the her in order to induce or deceit her. It is also evident that forged documents were not recovered from the spot on the day of the alleged incident but after few days from the day of the incident. Pertinently, none of the prosecution witnesses have deposed about the use of these documents by the accused on the alleged incident but simply stated that same had been recovered at the time of raid. Prosecution has failed to establish the use of the aforesaid documents by the accused as admittedly, the alleged incident took place on 09.04.2014 whereas the said documents i.e. Identity cards were recovered at the time of raid on 14.04.2017 which were simply kept in a grey-blue bag belonging to the accused and nothing has been placed on record to suggest that same had been used or intended to have been used by accused Nasir. None of the police witnesses including members of the raiding party State vs. Nasir Hafiz Khan. FIR no.178/17 Page 23 of i.e. PW4, PW-5 and PW-7 have deposed about the use of such documents by the accused. Thus, in absence of any substantial evidence to corroborate that said documents were forged and had been used by the accused or had been intended to have been used as genuine, ingredients of sec 471/474 IPC cannot be said to be attracted. Thus, in view of the above discussion, it is safe to conclude that testimonies of all prosecution witnesses, in absence of any corroborative material, are not sufficient to attract offence u/s 468/471/474 IPC against the accused.
38. Lastly, accused has also been charged for offence u/s 411 IPC. Section 411 IPC is reproduced herein below:
"411. Dishonestly receiving stolen property--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
39. In order for the prosecution to successfully prove the offense under section 411, the following elements must be established:
1. The property must have been stolen;
2. The accused must have received, retained, bought or sold the stolen property;
3. The accused must have known or had reason to believe that the property was stolen;
4. The act of receiving, retaining, buying or selling the stolen property must have been done dishonestly.
40. It is important to note that the mere receipt of stolen property is not enough to attract the provisions of section 411 IPC. The accused must have the knowledge or reason to believe that the property was stolen, and must have acted dishonestly in receiving, retaining, buying or selling it.
41. It has been established that on 09.04.2017, State vs. Nasir Hafiz Khan. FIR no.178/17 Page 24 of complainant Ramesh Kumari Verma was deceived and induced by two boys to part with her property i.e. two gold bangles and one gold ring and the stolen two gold bangles were recovered later on 17.04.2017, during police remand of accused Nasir at his instance from the almirah in bedroom of his house and thus, in this regard, testimonies of police officials who had accompanied the accused during recovery become crucial.
42. Evidently, it has been reiterated by PW-4, PW-5 and PW-7 that on 17.04.2017 during police custody of accused Nasir, two gold bangles belonging to complainant were recovered which were later duly identified by her in TIP proceedings of case property. The seizure memo of recovery of two gold bangles prepared by PW-7 SI Sumer Singh bears left thumb impression of accused Nasir and signatures of PW-5 HC Vikash at point A and stands duly proved. The simplicitor plea taken by the accused is that no recovery was made from him but nothing has been brought on record by the accused to falsify the claim of the IO that the case property was neither in his possession nor was recovered at instance of accused on 17.04.2017. Accused has not cross-examined the IO or any of the other members of the raiding party or witnesses of the seizure memo in this regard in order to raise any doubt or suspicion on the aspect of recovery of stolen two gold bangles from him and in absence of the same, the seizure memo prepared by the IO stands duly proved bearing left thumb impression of accused Nasir which has not been refused or rebutted by him at any point during trial. Also, considering that stolen articles had been duly identified by the complainant/victim during TIP proceedings clearly establishes that property did not belong to the accused Nasir and was infact stolen but no plausible explanation has been furnished by him as to how and why the said stolen property had come into his possession. Thus, In the opinion of this court, essential ingredients of offence u/s Section 411 IPC have been duly proved against accused.
State vs. Nasir Hafiz Khan. FIR no.178/17 Page 25 of
FINAL ORDER:
43. Accordingly, in view of the above discussion, accused Nasir Hafiz Khan @ Sameer Ali @ Irani is Convicted for offence punishable u/s 411 IPC and since the prosecution could not prove the guilt of accused for commission of offences punishable under sections 468, 471, 474 of IPC, beyond reasonable doubt, he is acquitted of the offences punishable under Sections 420, 468, 471 and 474 r/w 34 of IPC.
44. Announced in the open court on 06.11.2023. Judgment shall continue. To be heard on point of sentencing separately.
(NEETIKA KAPOOR) MM-02, WEST, THC, DELHI 06.11.2023 **It is certified that this judgment contains 26 pages, and each page bears my signature** State vs. Nasir Hafiz Khan. FIR no.178/17 Page 26 of