Delhi District Court
State vs Devender Kumar on 20 December, 2023
1 of 24 IN THE COURT OF MS. VASUNDHRA CHHAUNKAR, ACMM (NORTH-WEST) ROHINI COURTS, DELHI FIR No.55/2002 PS: ADARSH NAGAR U/s. 420/467/468/471/472/473/120B IPC State Vs. DEVENDER KUMAR & ANR. Unique ID no. of the case : 532263/2016 Date of commission of offence: 18.02.2002 Name of complainant : SI J.S. Mishra Name and address of accused : 1. Devender Kumar S/o Nirrotam Dass R/o- Y-770 Mangol Puri. Delhi. 2. Arjun Singh S/o late Shri Mangat Singh R/o D-3/144, Sector-20 Rohini, Delhi. (Proceedings against accused Arjun Singh already abated vide order dated 31.05.2014) Offences complained of : U/S 420/467/468/471/472/473 /120B IPC Plea of accused persons : Not guilty Date of Institution of case : 15.05.2002 Date of Judgment reserved : 21.10.2023 Date on which Judgment pronounced: 20.12.2023 FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 2 of 24 BRIEF FACTS:
1. The accused persons have been sent to face trial under Section 420/467/468/471/472/473/120B of Indian Penal Code (hereinafter called as IPC), on the allegations that on 18.02.2022 accused Devender Kumar and Arjun Singh entered into a criminal conspiracy to cheat person at large by supplying forged driving licence on consideration at different places, thereby committed an offence punishable U/s 420/120B IPC. Further both the accused persons in furtherance of criminal conspiracy prepared forged driving licence in the name of different person for the purpose of cheating and handed over to one such forged licence in the name of Mahender Kumar to HC Mahender Singh for a sum of Rs.500/- and committed an offence punishable U/s 468 IPC read with Section 120B IPC. Further both the accused persons were found in the possession of counterfeit seal of different transport authorities intending the same shall be used for preparation of forged driving licence for the purpose of cheating and committed an offence U/s 473 read with Section 120 IPC.
2. Charge-sheet was filed against both the accused persons for the above offences. The accused persons were formally charged for the offence U/s 420/468/473 read with Section 120- B of I.P.C. Both the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 3 of 24 evidence. Prosecution examined twelve witnesses:-
3. PW-1 ASI Vijay Kumar was examined and deposed that on 18.02.2022 on receipt of secret information qua preparing forged driving licence in various states by charging Rs.200/- to Rs.500/- for each licence and the same is being operated from Azadpur Mandi. On receipt of information, a raiding party was formed consisting of ASI Vijay Kumar, Inspector N.K. Sharma, SI J.S. Mishra, SI Anil Samota, HC Mhonder, Constable Narinder. They proceeded from the office of crime branch at about 2.30 p.m and reached Subzi Mandi Azadpur at about 3.30 p.m near Punjab & Sind Bank where some public persons were asked to join the raiding party but none came forward by disclosing their personal problems and left from there without disclosing their names and addresses. Thereafter HC Mahinder was made a decoy customer and PW-1 was made a shadow witness. HC Mahinder was handed over a currency note of Rs.500/- and handing over memo was prepared bearing the signatures of PW-1 at point A. The witness did not remember the number of the currency note. The witness deposed that he was instructed to make a signal towards the raiding party after finalization of the deal. At about 4 p.m. accused Devender came there and he told HC Mahender that Rs.500/- would be charged for issuance of driving licence. HC Mahinder gave his one small photograph and after about 15-20 minutes, accused Devender FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 4 of 24 returned and handed over the driving licence to HC Mahinder.
Thereafter he made a signal to the raiding party and raiding party reached at the spot and accused Devender was apprehended. The licence was handed over by HC Mahender to the I.O which was taken into possession vide memo Ex.PW1/B and driving licence of Mahender is Ex.PW1/ and thereafter currency note of Rs.500/- was produced by accused which was taken into possession vide memo Ex.PW1/C. During investigation accused Devender disclosed that he got typed the licence from Mangol Puri. At that time accused Devender was having a raxin bag of black colour which was having 17 driving licences and out of the same 16 driving licence were typed of different names, 165 blank driving licence, stamp pad, one stamp, one scissor, two gel pen and some other articles were recovered. All the said case property were kept in the parcel and the same was sealed with the seal of BST and was taken into possession vide memo Ex.PW1/D which bears the signatures of the witness at point A. A rukka was prepared by the I.O and the same was sent through Ct. Narinder for registration of the F.I.R. after getting the case registered, copy of rukka and F.I.R were handed over to SI Manoj for further investigation. Rough site plan was prepared and identified the case property i.e. two driving licence in the name of Ranjit Singh and Raj Kumar Ex.P2 and P3, 11 driving licences without photographs were proved Ex.P4 to Ex.P14. Black colour bag Ex.P15, plastic covers Ex.P16, Two pens FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 5 of 24 Ex.P17 and Ex.P18, One pad Ex.P19, quick fix Ex.P20, scissor Ex.21 and one more photographs Ex.P22. The witness was recalled for further examination on 17.04.2012 and he proved the typewriter Ex.P-23 which was recovered from the office of accused Arjun situated at Mangol Puri. On 22.10.2018 the witness was further recalled and he proved various stamps without handle Ex.P-24 (colly). On 29.04.2019, the witness was again recalled for examination-in-chief and he identified the currency note of Rs.500/- bearing No.9FA 464 360 and the same was Ex.P-25. The witness also identified the accused Devender.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 29.04.2019.
4. PW-2 HC Narender Pal was examined and he deposed on the same lines of PW-1. He proved the arrest memo qua accused Devender Ex.PW2/A and personal search memo Ex.PW2/B. He deposed that accused Devender Kumar was interrogated who disclosed that one person resident of Ghaziabad used to procure blank driving cards for him and he recorded the disclosure statement and proved the same as Ex.PW2/B-1. On 19.02.2022 at the instance of accused Devender he arrested another accused Arjun Singh vide memo Ex.PW2/D and conducted personal search vide memo Ex.PW2/E. He took into the possession one typewriter vide memo Ex.PW2/C which was being used for filling/typing the FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 6 of 24 blank driving licence cards. He deposed that the matter was got typed with the help of same typewriter on three sheets and proved the same as Ex.PW2/1 to Ex.PW2/3. All the other articles were produced by the MHC(M) and the witness identified already exhibited articles Ex.P15 to Ex.20. The witness stated that the typewriter was recovered from the possession of accused Arjun. He identified the seal impression and currency note of Rs.500/- which was recovered from the possession of accused Devender. The Court observed that the seal impression were stuck with each other and were broken during the time of separating the seal impression due to which at 12 number of seal impression could not be found.
The witness was cross examined at length by the Ld. Counsel for the accused Devender.
5. PW-3 Shri Sultan Singh, ADC from Palwal, Haryana was examined and he deposed that the police officials took his specimen signatures with specimen seal impression of Transport Authority Sonepat vide memo Ex.PW3/A to Ex.PW3/C, Ex.PW3/D and Ex.PW3/E. He deposed that the driving licence in the name of accused Mahender Singh does not bear his signatures. After seeing the record of licence No.45678 dated 20.06.2001, Transport Authority, Sonepat, he deposed that no such driving licence was issued from the aforesaid Transport Authority. The witness was not cross examined by Ld counsel FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 7 of 24 for the accused Devender Kumar despite opportunity.
6. PW-4 Shri Sunil Kumar, was examined and he deposed that he is working in the office of Assistant office of Transport Commissioner,Chandigarh, Haryana and deposed that he had verified the driving lience of Ranjeet Kumar and the same was not issued from his office and further deposed neither the signature nor seal on the said licence was of his office and proved the driving licence bearing No.5432 daed 15.06.2001 Ex.PW4/A. The witness was cross examined by Ld. Counsel for both the accused persons.
7. PW-5 Shri Jitender Kumar, Secretary RTA, Faridabad Haryana appeared and stated that in the year 2002 he was posted as SDM Faridabad. He deposed that one police official from Delhi came to his office and shown him one driving licence of Shri Raj Kumar which was not bearing his signatures. He deposed that he cannot tell about the stamp but after checking it was found that the said D/L was not issued from the Faridbad Transport Office. The witness was cross examined by the Ld. APP and counsel for the accused persons.
8. PW-6 Shri Jagdeep Singh, HCS, Chief Administrative Officer, Panchkula was examined and deposed that on 06.05.2002 he was posted as District Transport Officer, FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 8 of 24 Faridabad. He deposed that on 06.05.2022 one police official came from Delhi to his office and shown him two driving licences, one of Ranjeet Singh and accused Raj Kumar and after checking the record it was found that there was no entry showing issuance of aforesaid driving licences. He further deposed that the driving licence of Ranjeet Singh does not bear his signatures and the signatures on the same was forged. Even the stamp on the said driving licence was also forged. He was also shown from the court record the driving licence of accused Ranjeet Singh and after seeing the same, he deposed that the licence reflects his fake signatures with forged fake stamp and the stamps are not genuine. He deposed that I.O obtained his specimen signatures and he identified the signature sheet S-20 to S-22.
The witness was cross examined by the Ld. Counsel for both the accused persons.
9. PW-7 Shri Suraj Mal, erstwhile Record Clerk, Licence Authority, Sonepat was examined and produced the summoned record qua issuance of driving licence to the applicant i.e. Ashok Kumar. After seeing his record he deposed that one driving licence bearing No.045678 dated 23.7.1999 was issued to one Ashok Kumar S/o Shri Raghunath Arora for driving the scooter and the car and the same was valid upto 22.07.2004. He further deposed that the aforesaid licence was never issued in the name FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 9 of 24 of Shri Mahender Singh Son of Shri Maha Singh. He proved the relevant entry of the register against which the licence was issued to one Shri Ashok Kumar S/o Shri Raghunath Arora as Ex.PW7/A. He further deposed that no entry exists at serial No.045678 dated 20.06.2001 in their record. He further deposed that one licence at serial No.49952 dated 15.06.2001 was issued in the name of Shri Rajiv Jain S/o Shri P.C. Jain, thereafter on the aforesaid date i.e. 20.06.2001 no other licence was issued. He further deposed that entry at serial No.49953 dated 21.06.2001 one driving licence was issued in the name of Shri Shepali Singh D/o Shri Rajinder Singh. He further deposed that there is no entry No.4567 dated 20.06.2001 in their record. He proved the copies of aforesaid two entries dated 15.06.2001 and 21.06.2001 as Ex.PW7/B. From the judicial record, he was shown one licence bearing No.45678 dated 20.06.2001 allegedly issued in the name of accused Mahender Singh S/o Maha Singh and after seeing the same he deposed that the said licence was never issued by the Transport Authority, Sonepat.
The witness was not cross examined by accused Devender Singh despite opportunity.
10. PW-8 ASI Kamaljeet Singh was examined and proved the entry of register No.19 containing entry at serial No.2589/2002 dated 18.02.2002 as Ex.PW8/A. He deposed that on 18.02.2002 he was posted as MHC(M). SI Manoj Kumar and FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 10 of 24 SI J.S. Mishra deposited currency note with copy of seizure memo. They further deposited 17 driving licences in unsealed condition and one raxin bag with seal of VSC containing articles mentioned in the seizure memo.
The Ld. Counsel for the accused Devender cross examined the witness.
11. PW-9 Inspector Manoj Kumar appeared and deposed that on the direction of ACP he reached at the spot and SI J.S. Mishra handed over him copy of rukka, seizure memos and sealed parcels. Accused Devender was produced before him and he was informed that accused Devender was indulged in issuing fake licence. He interrogated him and arrested vide memo Ex.PW2/A and recorded his disclosure statement Ex.PW2/B1. At the instance of SI J.S. Mishra, he prepared the site plan Ex.PW9/A. He recorded the statements of police officials who were present at the spot and were members of the raiding party. On the pointing out of accused Devender, he apprehended the typist Arjun Singh who typed the fake driving licence. He took samples of typing on the sheets through the typewriter of accused Arjun Singh and proved the same Ex.PW9/B (S8 to S11 collectively). He arrested the accused Arjun Singh vide memo Ex.PW2/D and prepared the site plan of the said place i.e. Kamal Medical Store at Mangol Puri and proved the same as Ex.PW9/C. He also obtained the specimen handwriting and FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 11 of 24 signatures of accused Devender on the sheets S1 to S7 and proved the same as Ex.PW9/D. Thereafter he seized the typewriter make Facit which was recovered from the possession of accused Arjun Singh vide seizure memo Ex.PW9/E. He had correctly identified the typewriter which was shown to him and the same was proved as Ex.P-23. It was observed that the Typewriter was produced in a torn cloth and DD entry about the same was already recorded in the Roznamcha.
The witness was cross examined by Ld. Counsels for the accused persons.
12. PW-10 ASI Azad Singh deposed that on 18.02.202 he was posted as HC at PS Adarsh Nagar and was performing his duty as Duty Officer and his duty timings were from 5 p.m. to 1.00 p.m. He further deposed that at about 5.55 p.m on receipt of rukka he registered the F.I.R No.55/02 U/s 420/467/468/471/472/473/120-B IPC which is in his handwriting and he also made endorsement on the original rukka. He proved the carbon copy of the said F.I.R as Ex.PW10/A and endorsement as Ex.PW10/B. An opportunity to cross examine was given to the accused.
13. PW-11 Inspector J.S. Mishra deposed that on 18.02.2002 he was posted as SI at LBR Section of EOW Cell and on receipt of information qua forged driving licences he went to the spot FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 12 of 24 and prepared the tehrir/rukka and proved the same as Ex.PW- 11/A. He deposed on the same lines of PW-1 ASI Vijay Kumar (since retired), therefore, the version of PW-11 is not repeated here for the sake of brevity.
The witness was cross examined and discharged.
14. PW-12 ASI Mahender Singh deposed that on 18.02.2002 he was posted as HC in LBR Section of EOW (Crime Branch) and on that he was made as a decoy customer and HC Vijay was made a shadow witness. I.O took his personal personal search and his belongings were also taken. The I.O handed over One Currency Note of Rs.500/- bearing No.9FA 464 360 and his one photograph were handed over to him. His personal search and handing over of currency note memo was prepared and proved the same as Ex.PW1/C. He stated that I.O directed him to meet the person with forged driving licences and to ask him to prepare his driving licence. On the said date at about 4 p.m. one person accused Pappu came there and the witness asked him to prepare his driving licence and he agreed for the same and he gave Rs.500/- currency note and his photograph to the said accused. Again at 4.20 p.m. accused came there and handed over one driving licence bearing No.45678 dated 20.06.2001 valid upto 19.05.2004 to him. On the said driving licence the photograph and his name was written on it. The witness gave signal to the raiding party and accused Devender was apprehended by the FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 13 of 24 members of the raiding party. The witness handed over the forged driving licence to the I.O SI J.S. Mishra and took personal search of the accused and from the pocket of his shirt, the aforesaid currency note was recovered. The driving licence was seized vide seizure memo Ex.PW1/B. The witness has correctly identified the accused Devender. The witness also identified the currency note which was seized from the accused and the same was proved as Ex.P25. The witness also identified the forged driving licence which the accused Devender handed over to him and proved the same as Ex.P-26.
The witness was cross examined and discharged.
15. Thereafter the case was listed for statement of accused Devender Kumar and his statement U/s 313 Cr.P.C was recorded. In his statement he has stated that he has been falsely implicated in the present case and he was never involved in any such work as alleged against him. He stated that he is innocent and he used to manage parking in Azadpur Mandi. He further stated that some dispute occurred with some persons regarding parking and he has been falsely implicated in the present case.
16. No defence evidence was led by the accused. Accordingly, the matter was posted for final arguments.
17. Final arguments were advanced by the accused and the Ld. FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 14 of 24 APP for the State. Ld. APP submitted that the accused be convicted as the prosecution has been successful in proving the ingredients of the offences for which the accused has been charged. Further accused has not led any defence evidence and the prosecution has proved the case beyond reasonable doubt against accused Devender Kumar.
On the other hand Ld. Counsel for the accused Devender Kumar argued that the accused has been falsely implicated. The recovery shown was planted upon the accused and the police has conducted the investigation in fair manner. No public witnesses were examined by the police and the recovery shown from the accused was planted upon him. Ld. Counsel has prayed for acquittal of the accused Devender Kumar.
Reasons and Decision
18. The accused Devender Kumar has been charged for offence U/s 420/468/473 read with Section 120-B IPC. It is pertinent to mentioned here that the co-accused Arjun has already passed away and proceedings against him were abated vide order dated 31.05.2017 and accordingly, the Court has to sift the evidence produced by the prosecution against accused Devender Kumar only.
19. To bring home the guilt of the accused Devender Kumar under the above mentioned offences, the prosecution has FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 15 of 24 examined 12 witnesses. It is alleged against the accused Devender Kumar that he alongwith co-accused Arjun (since deceased) had conspired to cheat and made forged driving licence of different persons by using counterfeit seals of different transport authorities.
20. The witnesses examined by the prosecution are police witnesses and all the witnesses have almost deposed on the same lines that a raiding party was formed of six police officials who reached Azadpur Subzi Mandi in the afternoon. HC Mahender Singh was made a decoy customer and was handed over currency note of Rs.500/-. He was approached by accused Devender who told him that he will charge Rs.500/- for preparing the driving licence. HC Mahender thereafter handed over Rs.500/- to him and after 20 minutes the accused Devender returned and handed over a driving licence to HC Mahender. The accused was thereafter arrested and the case property i.e. a raxine bag of black colour having 17 driving licences, 165 blank driving licences, stamp pad, stamp, gel pens etc. were recovered from him and the case property was sealed. Thereafter, one typewriter was seized from accused Arjun who allegedly typed the contents of the forged driving licence. The sequence of events deposed by the witnesses persuade the court to believe the version of the prosecution. However, there are numerous loopholes as the court deeply digs into the testimonies and cross FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 16 of 24 examination of the witnesses. The offences U/s 420/468/473 read with Section 120-B IPC are being separately dealt with as follows:
i) Section 420 IPC:
For bringing home the guilt of the accused for offence U/s 420 IPC, it should have been proved by the prosecution that there was a deceitful or fraudulent inducement by the accused Devender of the persons for whom he had issued forged driving licences. The prosecution recovered many forged driving licences from the possession of accused Devender. However, the prosecution has failed to examine any public witness for whom the driving licences were issued to prove that they were induced to deliver valuable security for making forged driving licence by accused Devender. It is a fact of common knowledge that the driving licences are issued by the concerned RTOs and not by any private person like accused Devender and any person approaching accused Devender for a licence would be aware of the same. They themselves were part of wrongful act for getting forged driving licence made by accused Devender. The persons contributing to illegal acts cannot be said to have been fraudulently induced by accused Devender. Further PW HC Mahender was a decoy witness as per the prosecution case and he cannot be said to have been cheated by accused Devender as police witness was already aware of the modus operandi of accused Devender and he intentionally handed over Rs.500/- to FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 17 of 24 accused Devender. For proving the offence of cheating by the accused it must be shown that the accused practiced deception on the public persons and those public persons were induced to deliver any valuable property. The forged driving licences of the public persons recovered, themselves had a dishonest intention of generating a forged driving licence from accused Devender to avoid the legal process of generating a genuine driving licence from the concerned RTO. The essential ingredient for the offence U/s 420 IPC is that the representation made by the accused was false and that the accused knew that the representation made by him was false at the very time when he made it with this dishonest intention to deceive the person to deliver any property to him. In the present case, the accused, as alleged, knew that he was making false driving licences without any authority. However, the person approaching the accused were also aware that the licence made by accused Devender was not genuine. When both the parties i.e. the public person and the accused had dishonest intention, the offence U/s 420 IPC is not proved against the accused Devender. It is pertinent to note that no public person (to name of few are Ranjeet Kumar and Raj Kumar) whose forged licences were recovered from the accused Devender were traced or examined by the prosecution.
21. The accused Devender is also charged for the offence U/s 468 and 473 read with Section 120-B IPC on the allegations that FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 18 of 24 he had forged the driving licence and handed over one such forged licence to the decoy witness HC Mahender Singh and he was also found in possession of counterfeit seals of different transport authorities. PW-3 from Haryana Transport Authority, PW-4 from DDO Office, Faridabad, Haryana, PW-5 SDM Faridabad, PW-6 Faridabad Transport Authority and PW-7 Transport Authority Sonepat were examined by the prosecution to prove that the seized licences from accused Devender were forged as all the said witnesses deposed that the signatures and the seals on the seized licences (Ex.P1, Ex.PW4/A, Ex.PX, Ex.PY) were forged. Though the witnesses proved that the licence seized from accused Devender were not issued by the Transport Authority, however, the manner of recovery of seizing the forged licences from accused Devender raises serious questions upon the fairness of the same in the light of the following points:
i) The seizure memo and the seal of the IO:
The joint depositions of the testimonies of PW1, PW2, PW-11 and PW-12 reveals that PW11 had seized the currency note, 17 filled driving licences, 165 blank licences, one stamp pad, 16 rubber stamps, lamination sheets, two gel pens etc. vide seizure memo Ex.PW1/D and he sealed the object with the seal of VST. It is reflected in their testimonies that the tehrir was sent for registration of FIR after the sealing the case property. The witnesses have stated that the case property was sealed and FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 19 of 24 seized prior to the registration of the FIR, however, the seizure memo Ex.PW1/D bear the FIR number of the case. The prosecution has failed to provide any reason as to how the FIR number was known to the witnesses prior to its registration to have been mentioned on the seizure memo. Ordinarily the FIR number should not find any mention as the documents came into existence before the registration of the FIR. The FIR number appears to have been mentioned in continuity and same ink as rest of the content of the documents. There is no suggestion put by the prosecution as to whether any space was left on the documents for mentioning the FIR number after its registration. The Hon'ble High Court of Delhi has observed in para 4 of 'Mohd. Hashim Vs. State', 82 (1999) DLT 375 that "the prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid seizure memo, which was allegedly prepared on the spot. This gives right to two inferences that either the FIR was recorded prior to the alleged recovery of the contra band or number of the said FIR was inserted in seizure memo after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contra band in the manner alleged by the prosecution".
The above ruling of the Hon'ble High Court squarely applies to the facts in hand and a dent the prosecution case.
Coming further, PW-11 had not taken as to whom he had hand over the seal to after the seizing of the case property. No handing over memo was prepared by the IO at the time of FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 20 of 24 handing over the seal and depositing in the Malkhana creating a doubt as to whether the case property was actually sealed on the spot or in the police station. The seal was also not handed over to any independent witness and as the seal remained with the police officials of the same police station, the possibility of tampering with the case property cannot be ruled out.
22. The MHC(M) produced the seized seal impression and the typewriter in the court on 17.04.2012. It is to be noted that the court had observed that the initials of the seal were not legible and the cloth parcel in which the seal was produced was also torn. Further the bag that was produced on 17.04.2012 did not contain the currency note of Rs.500/- and the rubber stamp. On 22.10.2018, the rubber stamp was produced which was without any handle. PW-8 deposed that he was posted as MHC(M) at PS Adarsh Nagar and SI Manoj and SI J.S. Mishra deposited 17 driving licences in unsealed condition in the malkhana. The casual manner in which the properties were seized and produced before the Court also cast a doubt upon the case of the prosecution. The police officials should have taken utmost care of seizing and sealing the case property in proper manner as the case of the prosecution solely revolves around the said case property being seized from accused Devender.
23. Non-joining of public witnesses:
FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 21 of 24 No public witness has been joined by the prosecution at the time of investigation despite the availability of the public person in the afternoon at Azadpur Mandi as revealed from the testimony of witnesses i.e. PW-1, PW-2, PW-11 and PW-12.
The witnesses stated that the public witnesses refused to join the investigation. The Court fails to understand as to why no action was taken by the IO against the refusing public person as the IO is empowered to take steps against them under law. The availability of independent witnesses is not denied by the police witnesses. At least, he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice should be given to him. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of prosecuting agency.
In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we.....".
It has come in evidence that no public person was joined in the investigation despite their availability at the spot. The efforts allegedly made by the IO are not enough to qualify the criteria of sincere efforts. The Court is aware of the hardships during the investigation faced by the police officials in joining FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 22 of 24 the public witnesses and the non-joining of the public witnesses cannot be sole ground for giving benefit to the accused, however, since the case of the prosecution is already doubtful as observed in above mentioned para 21 and 22 of independent witnesses would have provided necessary corroboration to the prosecution case with respect to the recovery of the forged licences from the accused Devender.
24. The accused Devender has also been charged for the offence U/s 120-B IPC for hatching criminal conspiracy with accused Arjun (since deceased) for committing cheating and preparing forged driving licences. The Apex Court has ruled in "Parveen Vs. State of Haryana, (2021) that finding a person guilty for offence under Section 120B IPC requires evidence of conspiratorial agreement for an illegal act and in "Ram Sharan Chaturvedi Vs. State of M.P (2022)" held that mere suspicion or conjecture cannot suffice to prove the existence of a criminal conspiracy. The offence of criminal conspiracy is a distinct offence and constitutes an agreement between two or more persons to do or caused to be done, an illegal act or legal act by illegal means. Generally conspiracy is hatched in secrecy and the prosecution relied upon circumstantial evidence. In the present case, it is alleged that accused Arjun (since deceased) used to type the matter for the forged licences with the help of the seized typewriter P-23 make "Facit". It is revealed from the testimonies that accused Arjun was not arrested on the same day as that of FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 23 of 24 the raid. PW-1, PW-, PW-2, PW-11 and PW-12 have deposed that accused Devender had come to decoy witness HC Mahender on the day of the raid and charged Rs.500/- for issuing the driving licence. After about 15-20 minutes, the accused Devender had returned and handed over the forged driving licence to HC Mahender. Thereafter, the decoy witness made signal to the raiding party and raiding party reached at the spot and accused Devender was arrested. After arrest of accused Devender he disclosed that he used to get the contents typed from accused Arjun. The next day accused Devender led the I.O to the arrest of accused Arjun from whom the typewriter was recovered. It is to be noted that the typewriter was also produced in an unsealed condition from a cloth parcel on 17.04.2012. Further the I.O did not send the typewriter and the forged licences to FSL that could have established that the contents in the forged licences were typed from the seized typewriter. No public witness was joined at the time of seizing the typewriter from accused Arjun. The evidence produced by the prosecution is not strong enough to suggest any criminal conspiracy between the accused persons. There is a big question mark on the fairness of the recovery made from the accused persons and the prosecution has failed to provide unimpeachable circumstantial evidence to prove that there was criminal conspiracy hatched by the accused persons. If there are circumstances compatible with the innocence of the accused persons, the prosecution cannot be FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar 24 of 24 said to have proved the offence U/s 120-B IPC against the accused persons.
25. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is a well settled legal preposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused merely on the basis of testimonies of the police officials. As the prosecution case is laden with weak evidence, it cannot be ruled out that the case property was planted upon the accused persons.
26. In view of the above discussion, reasons and well settled legal proposition, the prosecution has failed to prove its case against accused Devender Kumar beyond reasonable doubt as per criminal jurisprudence. Accordingly, accused Devender Kumar acquitted in the present case.
File be consigned to record room after due
compliance. Digitally signed
by
VASUNDHARA VASUNDHARA
CHHAUNKAR CHHAUNKAR
Announced in open Court Date: 2023.12.20
on 20.12.2023 16:18:36 +0530
(VASUNDHRA CHHAUNKAR)
ACMM, NORTH-WEST DISTRICT
ROHINI COURTS, DELHI/20.12.2023
FIR No.55/2002 State Vs. Devender Kumar & Anr. PS: Adarsh Nagar