Delhi District Court
State vs . Kamal Kant on 19 December, 2017
IN THE COURT OF SH. GAGANDEEP JINDAL :
METROPOLITAN MAGISTRATE :09 : SOUTH EAST
DISTRICT : SAKET COURT : NEW DELHI
State vs. Kamal Kant
FIR NO. 799/200
PS Defence Colony
U/s. 420/468/472/471/473/120B IPC & 12 PP Act
Date of Institution of Case : 20.12.2000
Judgment Reserved for : 15.12.2017
Date of Judgment : 19.12.2017
1. CIS NO. : 86138/2016
2. The date of offence : 24.10.2000
2. Name of the complainant : SI Gurdev Singh, Special Cell,
Lodhi Colony, New Delhi
3. Name of the accused, : Kamal Kant S/o Late Darshan
parentage & residential Kumar Kashyap R/o WZ139,
address Sant Gargh, Tilak Nagar, New
Delhi.
4. Offence complained of or : U/s. 468/473 IPC & 12 (1)(b)
proved Passport Act
5. Plea of the accused : Pleaded not guilty and claimed
trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 19.12.2017
State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 1 of 16
JUDGMENT
1 It is the case of the prosecution that on 24.10.2000 on receiving secret information that accused Rattan Singh and Kamal Kant were preparing forged documents to get the Visa of USA from the persons and charging Rs. Ten lacs per head, Insp. H.S. Gill contacted the accused persons as decoy customer. A raiding team was made. Accused persons called Insp. H.S. Gill alongwith Rs. 5,000/ and to show documents. Raiding team reached at the spot near Police Service Road, Police colon, Andrews Ganj, New Delhi. At about 8:00 PM, both accused reached there and had shown the documents regarding income tax, FDR to Insp. H.S. Gill and he gave Rs. 500/ to them. Thereafter, both accused were apprehended and forged documents were seized. Thereafter, accused Kamal Kant got recovered 62 stamps of different departments and offices from his house. During the investigation all the documents and stamps seized from the possession of accused persons were found forged and fabricated.
2 After completion of investigation and necessary documentation, chargesheet was filed in the Court. Copy of the chargesheet was supplied to both accused. 3 Vide order dated 29.10.2014, accused Rattan Singh State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 2 of 16 was discharged. Charge u/s. 468/473 IPC and u/s. 12(1)(b) Passport Act were framed against accused Kamal Kant to which he pleaded not guilty and claimed trial. 4 Prosecution has examined following witnesses to prove its case:
4.1 PW1 Insp. Gurdev Singh was the member of raiding team. He had seized Rs. 500/, photocopy of passport of Insp. H.S. Gill vide seizure memo Ex.PW1/X. He seized other documents, income tax return, FDR in the name of H.S. Gill vide seizure memo Ex.PW1/Y. He prepared rukka Ex.PW1/A and handed over same to SI Nand Lal for registration of FIR. The copy of FIR and original rukka was handed over to ASI Janak Raj for further investigation. He is witness to the arrest memo, personal search memo Ex.PW1/B and Ex.PW1/C, disclosure statement of accused persons Ex.PW1/D and Ex.PW1/E, site plan Ex.PW1/F. He is also witness to the recovery of 62 stamps and other documents from the house of accused Kamal Kant vide seizure memo Ex.PW1/G. He correctly identified the case property in his testimony.
4.2 PW2 SI Nand Lal was also member of raiding team and is witness to the seizure of documents from the accused persons on the spot. He is witness to the recovery State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 3 of 16 of documents and stamps from the house of accused Kamal Kant. He is witness to the arrest memo Ex.PW2/A and Ex.PW2/B, personal search memo Ex.PW1/B and Ex.PW1/C. He is also witness to the seizure memo Ex.PW1/Z. He deposed that IO seized documents i.e. 6 passport, blank papers of confirmation of deposit Standard Chartered Bank, Blank FD Dena Bank from the suitcase of Kamal Kant vide seizure memo Ex.PW2/C. 4.3 PW3 Retired ACP H.S. Gill was the decoy customer who had contacted the accused persons after receiving the secret information.
4.4 PW4 Ravi Babbar, Chief Manager Retired, Punjab National Bank, Kavi Nagar Branch, Ghaziabad, UP proved that FDR No. 7869 Sl. No. 44278 dated 08.9.2000 in the name of Harjinder Singh Gill was not issued by the Branch office Kalkaji, New Delhi. He proved that letter dated 06.11.2000 Ex.PW4/A. 4.5 PW5 A.K. Rastogi deposed that he gave report regarding the stamp impression on the paper Ex.PW5/A. 4.6 PW6 C.L. Bisherwal deposed that he was chief manager, SBI Vasant Vihar Branch during the period 19992000 and proved the letter dated 18.11.2000 Ex.PW6/A wherein it is mentioned that no stamp of cash receiving has been stolen from their branch.State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 4 of 16
4.7 PW7 D.P. Ghosh was working as superintendent, Regional Passport Office, Bhikaji Cama Place in the year 2000. He proved his report Ex.PW7/A for verification of impression of stamp in the letter MarkX1. He also proved report Ex.PW7/B for verification of passport No. A1747679.
4.8 PW8 Gurbachan Singh proved that accused Kamal Kant was his tenant in the year 2004.
4.9 PW9 L.K. Sood deposed that he was working as Head of Inspection and Control Division, PNP, Rajender Nagar, New Delhi. He proved his report Ex.PW9/A. 4.10 PW10 Ms. Deepa Gadi was working as Chief Officer, General Operation Department and Zonal Office, Bank of India, in the year 2000. She deposed that the bank deposit certificate produced by the IO were found fake and her report is Ex.PW10/A. 4.11 PW11 Subhash Chandra was working as Office Assistant, Regional Passport Office, Chandigarh. He produced the record of passport No. T766085 dated 25.1.1995 issued in the name of Harpal Singh and the documents produced by Harpal Singh alongwith his passport application form which are Ex.PW11/B. He deposed that he cannot identify the signature on the report Mark PW11/A1. He proved the certificate Ex.PW11/C State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 5 of 16 issued by Rakesh Agarwal, Regional Passport Officer, Chandigarh to prove that record of passport applications upto 2012 has been weeded out.
4.12 PW12 Harpal Singh turn hostile during his cross examination by Ld. APP for State. He deposed that he applied for passport vide application form Ex.PW11/B. He deposed that passport No. T766085 MarkPW12/Y does not bear his photograph. He failed to identify accused Kamal Kant and denied the suggestion that accused Kamal Kant assured him to sent abroad in lieu of Rs. Ten lacs.
4.13 PW13 HC Pradeep Kumar from FRRO Office, R.K. Puram deposed that record for the period from 1995 to 31.12.2001 had been weeded out on 04.02.2005. 4.14 PW13 SI George Masih was duty officer on 24.10.2000 in PS Defence Colony. He registered the present FIR on receiving DD No. 27A Ex.PW13/A and proved the FIR as Ex.PW13/B. 4.15 PW14 SI Satya Narain was posted as MHCM at PS Defence colony on 24.10.2000 and deposed that case property Ex.P1, Ex.P2 and Ex.P3 was deposited in Malkhana vide entry No. 1896 Ex.PW14/A on 24.10.2000.
4.16 PW15 Amol Mishra proved his authority letter State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 6 of 16 Ex.PW15/A to depose in the Court. He produced certified copy of record of passport No. A4765773 Ex.PW15/B (colly.) and certificate u/s. 65B of Indian Evidence Act Ex.PW15/C. He deposed that passport No. A4765773 was issued to Daljeet Singh and passport No. A4795373 was not issued by Passport office Jalandhar. 4.17 PW16 Balender Kumar, Lab. Assistant, FSL, Rohini deposed that FSL report Ex.PW16/A was prepared by Sh Harshvardhan and he identified his signature.
other witness was examined by the prosecution. 5 After completion of prosecution evidence, the accused Kamal Kant was examined u/s 313 Cr.P.C. Accused has stated that no recovery was effected from his possession. He has stated he has been falsely implicated in the present case at the instance of Insp. H.S. Gill because he has refused to fulfill his illegal demand.
6 Accused did not lead any defence evidence. 7 I have heard the arguments of Ld. APP for State and Ld. Defence Counsel and have gone through the case file. 8 Ld. APP for State has stated that all the witnesses have fully supported the case of prosecution and therefore, accused should be convicted.
9 Ld. Defence counsel has stated that accused had been falsely implicated at the instance of the then Insp. H.S. Gill.
State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 7 of 16No public witness was asked to join the investigation at the time of recovery from the accused. Arrest memo of accused was prepared two hours before registration of present FIR. The entire case property allegedly seized from the accused Kamal Kant had not been produced. Whatever the case property had been produced during the evidence in unsealed pullanda which further dent the case of prosecution. Therefore, accused is entitled to be acquitted in the present case.
10 It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
11 After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds. 12 It is the case of the prosecution that on 24.10.2000, the then SI Gurdev Singh Special Cell, Lodhi Colony received secret information that Rattan Singh and accused Kamal Kant were preparing forged document to get US Visa for State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 8 of 16 various persons and charge Rs. 10 lacs per person. The said information was shared with Insp. H.S. Gill who contacted the accused persons as decoy customer on the same day. Accused persons asked Insp. H.S. Gill to meet them alongwith Rs. 5000/ and to show documents at 8:00 PM, Andrews Ganj, New Delhi.
13 The IO/ASI Janak Raj had expired, therefore, he was not examined in evidence. PW1 Insp. Gurdev Singh deposed in crossexamination that Insp. H.S. Gill did not inform him as to how he contacted the accused person as decoy customer. PW3 Retired ACP H.S. Gill was confronted with his statement recorded u/s. 161 Cr.PC Ex.PW3/D1 and admitted that he did not inform how he contacted the accused for deal of visa for USA. PW3 failed to disclose the mode of communication used by him to contact with the accused persons being a decoy customer. Furthermore, it is alleged by the prosecution that on 24.10.2000 at 8:00 PM, ITR Form No. 2 of H.S. Gill, challan form of income tax in the name of H.S. Gill, intimation u/s. 143(1)(8) Income Tax Act in the name of H.S. Gill and FDR of maturity amount Rs. 2.40,000/ dated 8.9.2000 in the name of H.S. Gill were recovered from the possession of accused Kamal Kant and was seized vide seizure memo Ex.PW1/Y. None of the witness disclosed at what time the said information was State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 9 of 16 received on 24.10.2000, at what time Insp. H.S. Gill had contacted accused persons as decoy customer and when and how Insp. H.S. Gill disclosed his particulars to prepare forged documents in his name for application of Visa for USA. All these incidents had happened on the same day on 24.10.2000. It is very hard to believe that accused persons prepared the all documents as mentioned in seizure memo Ex.PW1/Y in the name of Insp. H.S. Gill within short span of period especially in absence of any public witness of recovery and material discrepancies as mentioned above. 14 Secondly, the raiding team was prepared under the guidance of the then ASI Gurdev Singh to apprehend the accused persons red handed when they would meet to Insp. H.S. Gill decoy customer. Admittedly, no departure or arrival entry was made by the raiding party before leaving the police station in the Roznamcha register. Prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that raiding team had left the police station to apprehend the accused by producing DD entry for the same.
15 As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under: "Chapter 22 rule 49 Matters to be entered in Register State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 10 of 16 no. II. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
16 In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, when they left PS to conduct raid. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 11 of 16 attributes oblique motive on the part of the prosecution."
17 Thirdly, the next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution not joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. The place of recovery i.e. service lane near Police Colony, Andrews Ganj, New Delhi was busy road and second place of recovery i.e. house of accused Kamal Kant was residential area. Therefore, it cannot be said that no public person would have been available at the spot. Even, if the prosecution has not the public witnesses, it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the pat of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 12 of 16 the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), 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 find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
18 In "Roop Chand Vs. The State of Haryana 1999 (1) C.L.R, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 13 of 16 witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
19 Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 14 of 16 followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
20 Fourthly, as per seizure memo Ex.PW1/4, Ex.PW1/G, Ex.PW2/C, plethora of documents and seals were recovered at the instance of accused Kamal Kant but during the evidence only unsealed suitcase, one unsealed polythene bag containing 62 stamps of different offices/departments and 5 notes of Rs. 100/ were produced. No other document as seized vide seizure memo was produced by the prosecution for the reasons best known to it. Even the above mentioned case was produced in unsealed pullanda/polythene which further demolish the case of prosecution because tampering with the case property cannot be ruled out. 21 Fifthly, the present FIR was registered on 24.10.2000 at 10:10 PM. PW13 SI George Masih deposed that SI Nand Lal produced the complaint and rukka sent by SI Gurdev Singh at about 10:00 PM on 24.10.2000. PW13 had given the copy of FIR to ASI Nand Lal after 10:30 PM. However, as per arrest memo accused Rattan Singh Ex.PW2/A and arrest memo of accused Kamal Kant Ex.PW2/B, they both were arrested in the present FIR at 8:00 PM on 24.10.2000. The prosecution has failed to explain how the accused persons were arrested in the present FIR before registration State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 15 of 16 of present FIR. None of the witness had explained this discrepancy in the arrest memo. Therefore, I find merits in the arguments of Ld. Counsel for accused that all the proceedings were conducted by police official in the PS without falling the due procedure to falsely implicate the accused persons.
22 The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused in the hands of the police. The benefit always goes to the accused.
23 On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt that forged documents, seals of various departments and forged passport was recovered from the possession of accused. Hence, the accused Kamal Kant is acquitted of the offence u/s 468/473 IPC and u/s. 12(1)(b) Passport Act.
Announced in the open Court
on 19.12.2017 (GAGANDEEP JINDAL)
MM09/SED/ND/19.12.2017
State Vs. Kamal Kant FIR NO. 799/00 PS Defence Colony CIS NO. 86138/2016 Page 16 of 16