Delhi District Court
State vs . Rajesh Kumar on 7 September, 2013
IN THE COURT OF MANISH KHURANA METROPOLITAN
MAGISTRATE NORTH:ROHINI COURTS:DELHI
STATE VS. RAJESH KUMAR
PS: Prashant Vihar
JUDGEMENT
(a) The FIR No. of the case : 186/02
(b) Police Station : Prashant Vihar
(c) The date of commission of offence : 23.04.2002
(d) The name of complainant : Suresh Kumar Jindal,
S/o Sh. Chandgi Ram Jindal,
R/o BU97, Pitam Pura, Delhi.
(e) The name of accused : Rajesh Kumar,
S/o Sh. Kanta Singh
R/o B47, Prem NagarI,
Kirari Road, Nangloi, Delhi.
(e) The offence complained of : U/s 406 IPC
(f) The plea of accused persons : Pleaded not guilty
and claimed trial.
(g) Date of Institution : 11.12.2002
(h) The date on which
judgment was reserved : 07.09.2013
(i) The final order : Acquitted
(j) The date of such order : 07.09.2013
(k) The Unique Identification Number : 02401R0185472002
State Vs. Rajesh page 1
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Brief statement of the reasons for the decision:
1. The prosecution story in brief is that on 23.04.2002 at about 6 am in room no. 115 of St. Margrett, Sr. Sec. School, D Block, Prashant Vihar, Delhi within the jurisdiction of PS Prashant Vihar, accused Rajesh was entrusted the answer sheet of B.Com, IInd year of the examination of English (A) and the accused ran away with the said answer sheet which was entrusted to him and committed criminal breach of trust by the said act and have thereby committed the offence punishable u/s 406 IPC. The accused was arrested and chargesheeted for the offence.
2. The matter was investigated by the police and a charge sheet was filed against the accused.
3. From the material on record, charge u/s 406 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution was directed to adduce evidence and seven witnesses were examined by the prosecution.
5. PW1 Prem Chand brought the original documents/record of admission form bearing the prospectus no. 41990 and the registration/SOL No. 99 B.Com (pass) 22040 which is Ex.PW1/A. He also proved the exemption form as Ex.PW1/B bearing the signatures of Deputy Registrar.
6. During his crossexamination by Ld. defence counsel, he admitted that the document Ex.PW1/A did not bear his signatures and he was not present at the time when the said document was prepared or verified.
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He also stated that he did not know anything about the document Ex.PW1/A.
7. PW2 HC Virender Kumar joined the investigation of this case and went along with HC Satyawan to arrest the accused and he deposed that the accused Rajesh was arrested at his residence. He further stated that the accused was arrested vide memo Ex.PW2/B and was personally searched vide memo Ex.PW2/C.
8. During his cross examination, he stated that he did not remember the DD number of the entry in roznamcha register and he also stated that the main gate of the house of accused was in the west side. He denied that he did not go at the spot or prepared all the documents at the police post.
9. PW3 HC Rajiv Kumar is the formal witness who along with IO HC Satyawan went to the spot and met the complainant. He also deposed that the IO prepared a rukka and he went to the PS and got the FIR registered. This witness was not cross examined by defence counsel.
10.PW4 Sanjay Kumar could not tell the exact date or time of the incident but he stated that about ten years ago, he was working as a invigilator of the class in St. Margrett Public School, Prashant Vihar where the examination of English was going on and the timing of the examination was from 3 pm to 6 pm. He further deposed that at 6 pm when the examination was over and he was collecting the answer sheets, one boy slipped out of the room and ran away with the answer sheet. He further stated that he informed the Superintendent of State Vs. Rajesh page 3 of 9 Examination Sh. S K Jindal who came at the spot and made the PCR call. He could not identify the accused in the court. During his cross examination by Ld. APP, he could not tell as to whether the incident took place on 23.04.2002. He denied that the name of accused was Rajesh and his roll number was 740066 or that he was the student of B.Com, 2nd Year. The attention of the witness was drawn towards accused Rajesh, present in court but this witness failed to identify the accused. He denied that he was giving a false statement in collusion with the accused or that he was not identifying the accused just to save him.
11.During his crossexamination, he deposed that he did not have the appointment letter vide which his duty was fixed as invigilator in room no. 115 of the said school. He also stated that he could not produce any document to show that on that day the examination of English (A) was going on. He admitted that he had not stated in his statement to the police u/s 161 Cr.P.C. that he could identify the accused.
12. PW5 HC Satyawan was the IO who conducted the investigation of this case, recorded the statement of witnesses, seized the documents and arrested the accused.
13. During his cross examination, he admitted that there was an over writing in the date in site plan Ex.PW5/B. He denied that the accused was not arrested from his house or that accused was called in the PS for his arrest and all the proceedings were conducted while sitting in the PS. State Vs. Rajesh page 4 of 9
14.PW6 Retired ASI Bheekha Bhai was the Duty Officer who proved the FIR as Ex.PW6/A and endorsement on rukka as Ex.PW6/B. During his cross examination, he admitted that in column no. 7 of the FIR, the roll no. of Rajesh Kumar is mentioned as 770066 B.Com, 2nd Year. He also admitted that IO did not attest the signatures of Sh. S K Jindal or that of Sh. Sanjay Kumar.
15. PW7 Sh. S K Jindal, the complainant deposed that on 23.04.2002, he was posted as Superintendent of Examination at St. Margrett School, Prashant Vihar and he was told by the invigilator Sh. Sanjay Kumar that a student, namely, Rajesh Kumar having roll number 740066 had ran away with the answer sheet from the room no. 115 and the alarm was raised and he reported the matter to the police and he gave the complaint Ex.PW7/A in writing. He also handed over the photocopy of attendance sheet to the police but the original attendance sheet of the said class could not be produced as the same had already been destroyed as per the University record.
16. This witness was cross examined at length by Ld. Defence counsel during which he could not tell as to what was the number of answer sheet given to the accused and he also admitted that after one hour of the start of the examination, the examinee could leave the room. He also stated that he did not tell in his statement to the police that he had seen the accused Rajesh. He also stated that he saw the accused for the first time in the classroom while he was appearing for examination. He also deposed that he was in the control room when State Vs. Rajesh page 5 of 9 he was told that one candidate had run away with the answer sheet and after that he did not see the accused. He could not tell as to whether there were examinations on 01.05.2002 and 11.05.2002 and he stated that accused might have appeared in the said examinations dt. 01.05.2002 and 11.05.2002 of Accountancy and Economics respectively. He also deposed that police used to remain at the gate and he could not tell as to how the accused escaped from the examination centre. He also stated that he did not try to see the accused on 01.05.2002 and 11.05.2002. He also stated that two roll numbers were mentioned in his complaint Ex.PW7/A. He did not bring or produce the duty register to show the duty of the staff posted in room no. 115 and he stated that the record had been sent to the University. He did not know as to when the accused was arrested by the police. He also stated that he identified the accused because he saw him in the court last time when he came for his examination. He denied that accused handed over the answer sheet to the invigilator during the half time and left and he also denied that the answer sheet of the accused was misplaced and hence to save himself he had deposed falsely.
17. Thereafter, PE was closed and statement of accused u/s 313 Cr. PC was recorded in which he pleaded innocence and denied the allegations and he stated that he duly returned his answer sheet to the invigilator and he had been falsely implicated. He denied for leading defence evidence and the case was fixed for final arguments.
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18.I have heard Ld. Counsels for the accused as well as Ld. APP for the State.
19. In this case, the prosecution is required to prove that accused was appearing in the examination of English on 23.04.2002 and was given the answer sheet and he ran away from the examination centre with the said answer sheet which was to be delivered to the class invigilator. However, the invigilator of the class in which the accused Rajesh was allegedly appearing could not identify the accused as the person who was appearing in the examination and he denied that the name of the accused was Rajesh or his roll number was 740066 or that he was the student of B.Com 2nd Year. During his cross examination, he stated that he did not have the appointment letter vide which he was performing his duty as invigilator in room no. 115 of the said school and he also could not produce any document to show that on that day the paper of English was going on. He also admitted that he had not stated in his statement u/s 161 Cr.P.C. to the police that he could identify the accused.
20. In this case, the complainant S K Jindal deposed that he came to know from the class invigilator PW4 Sanjay Kumar that one boy, namely, Rajesh Kumar with roll number 740066 had run away with the answer sheet from room no. 115. The complainant S K Jindal had not seen the accused as the accused had already left the examination centre as per his testimony and he also stated during his crossexamination that he had seen the accused for the first time in the Court when he State Vs. Rajesh page 7 of 9 appeared for his deposition. The case of the prosecution is based on the testimony of PW4 Sanjay Kumar and that of the complainant S K Jindal. So far as the deposition of PW4 Sanjay Kumar is concerned, he has categorically stated that accused Rajesh, present in court was not the same person who was appearing in the examination or who left the examination centre along with answer sheet. As per the testimony of the complainant S. K. Jindal, the alarm was raised when the accused ran away with the answer sheet and he also deposed during his cross examination that police used to remain at the main gate of examination centre and he also stated that he did not know as to how accused escaped from there. Perusal of the complaint Ex.PW7/A reveals that two different roll numbers i.e. 740066 and 770066 of accused Rajesh have been mentioned thereupon and the copy of the attendance sheet dt. 23.04.2002 Ex.PW7/B bears the roll number 066 against the name of Rajesh. Therefore, the prosecution has failed to prove that accused Rajesh was appearing in the examination of English (A) on 23.04.2002.
21. Ld. Defence counsel has also put specific questions to the complainant as to whether there were examinations on the dates subsequent to the date of alleged offence and the complainant has stated during his cross examination that accused might have appeared in the said examination of Accounts and Economics respectively and he also stated that he did not try to see the accused on said dates. In this case, the alleged offence was committed on 23.04.2002 and the State Vs. Rajesh page 8 of 9 accused was arrested on 25.11.2002 for which no explanation has been provided by the prosecution and the complainant also did not make any effort to see as to whether the accused appeared on 01.05.2002 and 11.05.2002 which casts doubts over the testimony of the complainant. Further, as per the testimony of the complainant, he raised an alarm when the accused allegedly escaped from the examination centre but no one tried to apprehend him. It also casts a shadow on the case of the prosecution.
22. Further the said answer sheet which is stated to have been taken away by the accused could not be recovered or produced before the court. The accused has taken the defence that he handed over the said answer sheet to the class invigilator during the half time which was misplaced by him and only to save the complainant, the accused has been falsely implicated. The testimony of class invigilator Sanjay Kumar who has failed to identify the accused Rajesh and the fact of nonrecovery of said answer sheet gives credibility to the defence raised by the accused.
23. In view of the above said discussion, I am of the considered opinion that prosecution has miserably failed to prove its case beyond doubts. Hence, accused Rajesh is hereby acquitted for the offence u/s 406 IPC. Announced in the open court (MANISH KHURANA) on 07 day of September, 2013 METROPOLITAN MAGISTRATE th ROHINI COURTS : DELHI State Vs. Rajesh page 9 of 9