Delhi District Court
State vs . Manoj Kumar & Anr. on 22 July, 2014
IN THE COURT OF SHRI PAWAN KUMAR: MM01
(SOUTHEAST):SAKET COURTS:NEW DELHI
State Vs. Manoj Kumar & Anr.
FIR No. 438/95
U/s 419/420/468/471/511 IPC
P. S. Lodhi Colony
1.Serial No. of the case : 252/12
2.Date of commission of offence : 05.11.1995
3.Name of the Complainant : Shri D T Barde
Dy. Commissioner of Police
3rd Battalion, DAP.
4.Name of the accused and his
parentage & residence address : Manoj Kumar
s/o Shri Rattan Lal
r/o VPO, Kaliavas, Garhi
Hassaru, Gurgaon, Haryana.
2) Beer Singh S/o Sh. Suraj
Bhan, R/o V.P.O. Nandram
Purbas, Riwari, Haryana.
5.Date when judgment reserved : 09.07.2014
6.Date when Judgment pronounced: 22.07.2014
7.Offence Complained of or proved :Section 419/420/468/471/511 IPC
8.Plea of accused : Pleaded not guilty
9.Final Judgment : Accused Beer Singh acquitted and
accused Manoj Kumar is convicted.
JUDGMENT
1. In the present case, accused namely Manoj Kumar and Beer Singh are facing the trial on the charges of offences 420/468/471 IPC. The present case FIR was registered on the written complaint of Sh. D.T. FIR No. 438/1995 P.S. Lodhi Colony Page No. 1 of 14 Barde. The contents of the complaint are as follows:
"It is stated that during the written test held on 05.11.1995 at Jawahar Lal Nehru Stadium for recruitment of constable one Manoj Kumar S/o Rattan Lal, R/o Village Kaliavas, District Gurgaon (Haryana) entered in the stadium on admit card bearing roll no. 34480written test roll No. 198329. However, the invigilator of the sector did not find the name of Manoj Kumar in the list provided by the Computer Centre. Actually at this roll number name of another candidate i.e. Yash Pal S.o Sh. Pratap Singh, R/o WZ105, Village Palam, New Delhi was seen. Therefore, Manoj Kumar was turned out by the invigilator.
Manoj Kumar approached Recruitment Cell Office at the stadium for verification. On checking name of one Yash Pal Sh. Pratap Singh, R/o WZ105, Village Palam, New Delhi, was seen at the roll number 34480. Yash Pal had qualified himself in the physical test but had not collected new roll number for written test.
Further enquiry revealed that Manoj Kumar had neither applied for a post of constable in Delhi Police nor appeared and qualified the physical test. As stated by Manoj Kumar one Beer Singh R/o village Nandram Purbas, District Riwari (Haryana) who is working in Delhi Police Traffic Cell had given him the aforesaid admit card with new roll number 198329. Obviously, he attempted to appear in the written test on the basis of manipulated admit card. He had attempted to appear in the written test knowingly that the admit card is bogus. Therefore, it is request to take action against Manoj Kumar as per law."
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. After considering the charge sheet and hearing both theparties, charge was framed U/s 419/420/468/471 read with Section 34 IPC against both the accused to which they pleaded not guilty and FIR No. 438/1995 P.S. Lodhi Colony Page No. 2 of 14 claimed trial.
4. Prosecution examined fourteen witnesses in order to prove their case.
PW4 D T Barde is the complainant in this case. He deposed that on 05.11.1995, he was posted as DCP, 3rd Battalion and was incharge of Recruitment Cell of Delhi Police made. They had started the process of recruitment of constable in Delhi Police. On 05.11.1995 the test was being conducted at Jawahar Lal Nehru Stadium. On that day one Manoj Kumar entered into the stadium on Admit Card No. 34480 and written test roll no. 198329. He was turned out by the invigilator as his name was not found against that roll no. He approached Recruitment Cell office for verification. On checking, it was seen that name of Yashpal was recorded against that roll no. All the aforesaid facts were brought into the notice of witness by the concerned clerk of Recruitment office. On enquiry from the accused Manoj, he disclosed that one Beer Singh, who is working in Delhi Police, Traffic Cell, had given him the admit card to appear in the written test. On checking and verification, the admit card was found to be fake and forged. The witness made written complaint to DCP (South) and same is Ex. PW4/A. On being enquired, the accused Manoj had disclosed that neither he had applied for the post of constable nor appeared in physical test. It is further deposed that accused attempted to appear in written test with forged and fabricated admit card.
PW3 Ct. Yashpal deposed that he applied for the post of constable in Delhi Police in the year 1995 and qualified the physical test on 01.08.1995. As per the instructions he was supposed to collect his new roll no. for written test. In the meantime, he qualified physical, FIR No. 438/1995 P.S. Lodhi Colony Page No. 3 of 14 written, medical and interview test on 07th to 09th October 1995 in the open recruitment at Gurgaon. That is why, he had not collected his roll no. for written test for which he had qualified physical test on 01.08.1995. He was informed by the IO that some other person had appeared in the examination on his roll no. He joined the investigation in this case on 26.07.2000.
PW10 Rajender deposed that accused Beer Singh is his neighbour and his brother in law (jija). The other accused Manoj is his saala. The accused Beer Singh informed him that he will arrange job for the accused Manoj in Delhi Police as Constable and for that a sum of Rs. 50,000/ has to be paid. He informed to his wife Sudesh and accused Manoj and arranged the said amount and gave to accused Beer Singh. The accused Beer Singh got filled up the form for the post of Constable of Delhi Police. After some time, the accused Beer Singh gave a card ex.PW8/B to accused Manoj Kumar. When the accused Manoj had gone to appear in the exam, he was caught for the reasons that the said admit card is fake. On being informed, he approached accused Beer Singh and questioned him. After some time, the accused has returned Rs. 50,000/.
PW11 is the wife of PW10 and sister of accused Manoj PW12 is the father in law of PW10 and father of accused Manoj. They deposed the similar facts as stated by the PW10 in his testimony and the same are not repeated for the sake of brevity.
PW13 SI Ram Niwas is the Investigating Officer. He deposed that during investigation he obtained the specimen handwriting of accused Manoj vide memo Ex.PW5/A1 to Ex. PW5/A12, and of the accused Beer Singh vide memo ex. PW1/A1 to Ex. PW1/A15. He also seized the documents vide memo Ex. PW13/A and sent the FIR No. 438/1995 P.S. Lodhi Colony Page No. 4 of 14 questioned documents to CFSL for expert opinion.
PW8 SI R D Pandey is one of the investigating officer and deposed that on 26.10.1998 the accused Manoj surrendered himself before the court. After interrogation, the accused was arrested vide arrest memo Ex.PW8/E and personal search was conducted vide memo Ex. PW8/F. He recorded his disclosure statement Ex. PW8/G. On 11.1.1999 he seized original application form and original admit card Ex.PW8/A and Ex. PW8/B vide memo Ex.PW8/C and Ex. PW8/D. Accused Manoj was arrested vide memo Ex. PW8/E. He recorded the disclosure statement of accused Ex. PW8/G. PW9 HC Surya Bhan Singh brought the copy of the documents pertaining to this case from the recruitment cell. The copy of admit card bearing the name of the accused Manoj Ex. PW8/B and an application written by Manoj Ex. PW9/A and one application form for the post of Constable in Delhi Police bearing roll no. 34480 of one Yashpal vide Ex. PW8/A available on judicial file and the copies of the same are kept in the recruitment cell for the purpose of record.
PW2 HC Bhagirath Parsad deposed that on 21.11.1995 he received a rukka produced by ASI Lal Chand and on the basis of which he recorded FIR No. 438/95, PS Lodhi Colony. Copy of FIR Ex. PW2/A. He made endorsement on the rukka Ex. PW2/B. PW1Ct. Dev Kumar deposed that he was working as DD writer from 4 pm to 12 midnight. On 25.07.2000 SI Ram Niwas obtained the signatures of accused Beer Singh on 15 pages in his presence.
PW5 Ct. Krishan Kumar deposed that on 15.09.2000 he joined the investigation with the IO. On that day specimen hand writing of accused Manoj were taken on 12 pages which are Ex. PW5/A1 to Ex.
FIR No. 438/1995 P.S. Lodhi Colony Page No. 5 of 14PW5/A12. All the 12 pages were taken into police possession vide memo Ex. PW5/B. PW6 Ct. Anil deposed that on 26.07.2000 he joined the investigation with IO. He alongwith IO went to Village Mundela, Delhi to enquire about Yashpal and thereafter they went to Village Salodha, Haryana to enquire about Yashpal and from there they came to know that he has been working as Ct. in Delhi Police and was posted at Jharodha PTC. They thereafter went to PTC Jharodha Kalan where Ct. Yashpal met them. He was examined by the IO and thereafter they went to Dharuhera, Haryana to enquire about Beer Singh and from there they learnt that Beer Singh was residing at Gurgaon and from there they came back to PS. Next day he alongwith IO went to Kaliawas, Garhi Harsroo, Haryana to enquire about Manoj but Manoj did not meet them there and from there they came back to PS. PW7 ASI Rishi Kumar brought the summoned record of HC Beer Singh have seen in judicial file the application dated 16/4/99 bearing OB No. 723/99 which is an application for leave written by Beer Singh. Same is part and partial of their record. Original application is Ex. PW7/A. PW14 Sh. Vinod Kumar, Govt. Examiner of Questioned Document, CFSL. He deposed on behalf of Sh. V G S Bhatnagar, Deputy Government Examiner, who has retired and Late Sh. I S Rao, who examined the questioned document alongwith specimen handwriting and signature and gave the opinion. He has worked with Sh. VGS Bhatnagar and Late Sh. I S Rao and identified their handwriting and signatures. The report is Ex. PW14/A and was prepared by both the aforementioned officials.
FIR No. 438/1995 P.S. Lodhi Colony Page No. 6 of 145. After exhausting the list of prosecution witnesses, prosecution evidence was closed. The statements of both the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused persons for explanation. The accused persons opted not to lead defence evidence.
6. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 420:
Whoever, dishonestly induces by way of cheating to deliver any property to any person or to make alter or destroy the whole or any part of the valuable property is liable to be punished. Essential ingredient of Section 420 are:
Cheating and dishonest inducement to deliver any property.
Section 415 defines cheating in following terms: Anything done with an intent to defraud but not otherwise. In substance, the ingredients of offence of section 420 are:
(i) There should be fraudulent or dishonest inducement of a person by deceiving him.
(ii) The person so deceived should be induced to deliver any property to any person or the person so deceived 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.
Section 468 provides for 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 a term which may extend to seven years, and shall also be liable to fine.
Section 463 defines forgery Whoever makes any false documents or false electronic record or part f a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery.
Section 464 defines make of false documents - A person is said to make a false document or false electronic record FIR No. 438/1995 P.S. Lodhi Colony Page No. 7 of 14 First - who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any (electronic signature) on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [ electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [ electronic signature ] was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed executed or affixed; or Secondly - who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration.
Section 471 provides for 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].
7. In order to attract the provisions of section 468 and 471 IPC, the sine qua non is an act of forgery.
8. In the light of above mentioned provisions, I am going to appreciate the evidence adduced and submissions made by both the parties.
9. The allegations in brief against the accused Manoj is that on 05.11.1995 he appeared in the written test for the recruitment of constable on the roll number alloted to some other person namely Yashpal. The alleged roll number was alloted to the candidate who qualified the physical examination test, but the accused Manoj has not qualified the said test. The allegation against the accused Beer Singh are that he had been working with Delhi Police and took money from the FIR No. 438/1995 P.S. Lodhi Colony Page No. 8 of 14 relative of the accused Manoj in order to arrange appointment in Delhi Police. It is further alleged that the accused Beer Singh provided the alleged admit card to the accused Manoj and asked him to appear in the exam. On the basis of the aforesaid allegations, the charge under Sections 419/420/468/471/34 IPC was framed .
10. It is established from the testimony of PW3 that he had qualified the physical test for the post of constable in Delhi Police on 01.08.1995 and as per instructions he was supposed to collect new roll number for the written test. However, in the meantime he got selected in the open recruitment and had not collected the above said roll number. It is also came on record that the roll number 198329 was alloted in the name of Yashpal. During the cross examination of the witnesses, this fact has not been contradicted that original roll number was alloted in the name of Yashpal and not in the name of accused Manoj Kumar.
11. The main defence of the accused Manoj is that the accused Beer Singh got filled his form and provided him the alleged admit card to appear in the exam. He stated in his reply while recording his statement under section 313 Cr.P.C. that coaccused Beer Singh promised him to get appointed as Constable in Delhi Police for sum of Rs.50,000/. Thereafter, he got filled his form and provided the admit card. On his assurance, he appeared in the exam. It is also stated that he appeared in the physical test however, there is no such record or document to show that he appeared or qualified the physical test.
12. PW4 is the complainant and narrated the incident as mentioned in his complaint Ex. PW4/A. He categorically stated that the accused Manoj appeared in the written test with the admit card having roll number 198329, which on verification found to be alloted in the FIR No. 438/1995 P.S. Lodhi Colony Page No. 9 of 14 name of Yashpal. He further stated that on verification the alleged admit card was found to be fake and forged. In his cross examination, he stated that the accused was not handed over to the police on the same day as they were verifying the record and required to 45 days to collect the complete record. He could not remember the name of the invigilator and police officer present on duty. The complaint remained un contradictory and unimpeached on the material part of the testimony. The testimony of the complainant is reliable and trustworthy.
13. The alleged admit card Ex. PW8/B and hand written application alleged to be written by accused Manoj Kumar Ex. PW9/A and the so called confessional statement of the accused Manoj Kumar were sent to FSL for the opinion of the handwriting expert alongwith the specimen and admitted signatures and handwriting of both the accused. As per the opinion of the handwriting expert Ex. PW14/A the handwriting on the admit card (Q3) and the statement (Q6) is attributed to the accused Manoj Kumar. The fact of filling the application form by the accused Manoj Kumar is not denied or disputed by the defence.
14. The case of the prosecution qua accused Beer Singh is that he was working in Delhi Police and assured the relative of the accused Manoj Kumar that he can arrange the appointment in Delhi Police for his brother in law on the payment of Rs.50,000/. After negotiation, the aforesaid sum was paid to the accused Beer Singh. He got filled the application form from the accused Manoj Kumar. After sometime, he handed over one admit card to the accused Manoj Kumar and asked him to appear in the written exam. The alleged admit card was found to be forged and alloted in the name of one Yash Pal.
FIR No. 438/1995 P.S. Lodhi Colony Page No. 10 of 1415. PW 10, PW11 & PW12 are brothers in law (Jeeja), sister and father of accused Manoj Kumar. In nutshell, they deposed that the accused Beer Singh is brother in law of PW10. On his assurance, a sum of Rs.50,000/ was paid by PW10 for the appointment of accused Manoj Kumar in Delhi Police. They further deposed that he got filled the application form from the accused Manoj Kumar and handed over him the alleged admit card to appear in the written exam. On appearance in the examination centre, the admit card was found to be fake and the accused Manoj was not allowed to appear in the exam. The said money was returned by the accused Beer Singh.
16. The defence of the accused Beer Singh is that he has been falsely implicated at the instance of accused Manoj Kumar and he is not concerned with the present case. It is argued on behalf of accused Beer Singh that the aforesaid prosecution witnesses are close relatives of accused Manoj Kumar and therefore, they deposed against him in order to save the accused Manoj Kumar.
17. It has been laid down in the judgment of "Kulamani Sahu Vs. State of Orissa 1994, Cri LJ 2245" and "Sahedavan Rajan Vs. State of Kerala, 1992 Cri LJ 2049" of Hon'ble Supreme Court that "it is trite law that when the label of hostility or interestedness is attached to a witness the Court is not to start with the presumption that the evidence is tainted and has to be discarded. What is required is a deeper scrutiny of the evidence. If on elaborate analysis and deeper scrutiny, the Court finds the evidence to be cogent and credible same can be basis for conviction" and "all that is necessary with scanning the evidence of an interested witness is that the Court must bestow extremely careful attention and should scrutinise it from every angle. On such scrutiny of FIR No. 438/1995 P.S. Lodhi Colony Page No. 11 of 14 the testimony of a witness who is related to the deceased is found acceptable, conviction can be based on it."
18. In the guiding light of the aforesaid judgment, I would appreciate the testimonies of said prosecution witnesses. PW10, PW11 & PW12 deposed in their testimonies that the accused Beer Singh got filled the application form of the accused Manoj Kumar. However, in the cross examination of PW10 & PW11, they stated that the application was not filled in their presence. In contradiction to that PW12 stated that the form was filled up by the accused Beer Singh in his own handwriting in his presence. He further stated that his daughter Sudesh/PW11 and son in law Rajender/PW10 were also present at that time. However in the later part of his cross examination, he said that the form was not filled up in his presence.
19. The PW10, PW11 & PW12 failed to remember the time, date and year when the negotiation was taken and also when the money was handed over to the accused Beer Singh. They also failed to recollect the time when the money was returned back by the accused Beer Singh.
20. PW10 deposed that the accused Beer Singh gave a card Ex. PW8/B to the accused Manoj Kumar and he had shown the said card to him. However in his cross examination, he failed to remember as to when the said admit card was given. PW11 stated in his cross examination that the admit card was handed over to her husband. Further in contradiction to PW10 & PW11, PW12 stated in his cross examination that the admit card was given to him by the accused Beer Singh in the presence of Rajender/PW10.
21. The testimonies of material prosecution witnesses qua accused Beer Singh are contradictory to each other. As far as the case of FIR No. 438/1995 P.S. Lodhi Colony Page No. 12 of 14 the prosecution qua accused Beer Singh is concerned, PW10, PW11 & PW12 are the only material prosecution witnesses. Nothing incriminating could be revealed in the investigation of this case. The deposition of the aforesaid witnesses is not reliable and trustworthy. Hence, on the basis of aforesaid testimonies, the prosecution miserably failed to establish the guilt of accused Beer Singh beyond reasonable doubt. The charge has been framed against the accused Beer Singh under Section 419/420/468/471 read with Section 34 IPC. There is no evidence to establish that the accused Beer Singh acted in furtherance of common intention with the accused Manoj Kumar. In order to bring home the conviction under Section 34 IPC, the commonality of purpose and design must be proved. There must be prior meeting of mind between the persons. Hence, the prosecution could not establish the charge against accused Beer Singh and he is accordingly acquitted of the alleged charges.
22. So far as accused Manoj Kumar is concerned, it is established that he entered into the written examination centre and attempted to appear in the exam on the basis of an admit card. The roll number of the said admit card was alloted to another person namely Yashpal. It is also established that the accused Manoj Kumar has not cleared the physical examination of Delhi Police. The roll number for the written examination was alloted only to the candidates who had qualified the physical examination. Even in the defence, the aforesaid fact has not been disputed or denied by the accused Manoj Kumar. The alleged admit card was found to be forged.
23. On the basis of the aforesaid discussion, it is proved that the accused Manoj Kumar attempted to cheat the concerned department by FIR No. 438/1995 P.S. Lodhi Colony Page No. 13 of 14 dishonestly inducing them to allow him to appear in the examination on the basis of the forged admit card. He also found guilty of using the forged admit card knowing or having reason to believe the same to be the forged one. Hence, the prosecution successfully established his case against accused Manoj Kumar beyond reasonable doubt and accordingly, he is convicted for commission of offences under Section 420 read with Section 511 IPC and Section 471 IPC.
24. Put up for argument on sentence on 13.08.2014.
Announced in the Open Court
On 22.07.2014 ( Pawan Kumar )
Metropolitan Magistrate01(SouthEast):
Saket Courts: New Delhi.
FIR No. 438/1995
P.S. Lodhi Colony Page No. 14 of 14