Delhi District Court
State vs . : Om Prakash on 8 December, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. : OM PRAKASH
FIR No : 29/2001
U/S : 419/420/468/471 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 277/2
2. Unique ID of the Case : 02401R0279312001
3. Date of Commission of Offence : 02.02.2001
4. Date of institution of the case : 21.04.2001
5. Name of the complainant : Sh. Phool Singh
6. Name of accused, parentage & : Om Prakash
S/o Sh. May Ram
R/o A1/46, Chankya Place, C1,
near Janak Puri, Delhi.
7. Offence Complained U/S : 419/420/468/471 IPC
8. Offence Charged with : 419/420/468/471 IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 08.12.2011
J U D G M E N T
1 The Prosecution filed a Chargesheet against the accused with the allegation that the accused on 2.2.2001 at about 11 a.m., he was found FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 1/16 traveling in a DTC bus bearing registration no. DL1P0487 of route no. 879. When the said bus reached at Kesho Pur bus stand, the DTC ticket checking staff asked him for the bus ticket and he shown to them a fake identity card of Delhi Police. On suspicion, the police was called. The FIR was registered and investigation was undertaken against him. After the completion of the investigation, a charge sheet u/s 419/420/468/471 IPC was filed against him. 2 Vide order dated 21.04.2001, my Ld. Predecessor took cognizance of the offence and summoned the accused. After the accused had appeared in the Court, in compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to accused. 3 Later on, vide Order dated 18.05.2004 charge for offences under sections 419/420/468/471 IPC was framed by my Ld. Predecessor Sh. Rajesh Kumar Singh, the then Ld. MM to which accused pleaded not guilty and claimed trial.
4 In order to prove its case against the accused, the Prosecution examined five witnesses in all.
FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 2/16 5 PW1 Phool Singh was the complainant in this case. However, a
perusal of his testimony would reveal that he has not supported the case of the prosecution in its material particulars. He deposed that on 2.2.2001, he along with PW2 Dharam Pal was checking the tickets of the passenger in bus route no. 879 and Kesho Pur Depot Manager called the police, who had apprehended one passenger without ticket. He was declared hostile by the Ld. APP for the State. In his cross examination, he could not say if he was checking the bus no. DL1P0487. He denied that near Peera Garhi, he asked the passenger about the ticket, who showed him ID card no. 305/89 of Delhi Police. He further denied that the accused told him that he was staff of Delhi Police. He further denied that he called the police on suspicion. He could not tell whether the person who had shown the forged I card was present in the Court or not. He could not admit or deny the accused as the person who had shown the forged I card. He admitted having made his statement, Ex. PW1/A but he also stated that the same was made by him at the instance of Depot Manager. He could not admit or deny, whether the I card Ex. P1 was recovered from the possession of accused. He was not cross examined by the Ld. counsel for the accused.
6 PW2 Dharam Pal also did not support the case of the FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 3/16
prosecution. In its material particulars. He was also cross examined by Ld. APP. In his cross examination, he could not admit or deny, if they were checking tickets in bus no. DL1P0487. He also could not admit or deny, if the accused produced forged I card of Delhi Police or the I card Ex. P1 was recovered from the accused or not. However, he admitted that Phool Singh had asked the passenger to show his ticket who could not show his ticket rather had shown the I card of Delhi Police.
7 PW3 ASI Rajinder Singh was Duty Officer in this case who registered the FIR and proved the same as Ex.PW3/A. He also proved the endorsment on the rukka as Ex. PW3/B. He was not crossexamined by the Ld. Counsel for the accused.
8 PW4 SI Jagdish Prasad appeared along with the record of I card of Satya Pal 1613/E dt. 29.11.1989. He deposed that one Satya Pal was newly appointed and undergoing training at PTC and he was withdrawing salary from department. He further deposed that no temporary I card was issued by his department to Satya Pal. He further deposed that his record must have been lying with DAP, 3rd batalion, Vikas Puri. He deposed that Satya Pal expired on 11.7.2004.
FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 4/16 9 PW5 HC Rajinder Singh was involved in the investigation with
the IO i.e. W ASI Satyawati. He deposed about the investigation in this case. He proved the arrest memo of accused, Ex. PW5/A. He was cross examined by the Ld. counsel of the accused at length.
10 In his statement U/s 313 Cr.PC the accused denied that he used the forged I Card of Delhi Police in the DTC bus. He claimed to be innocent and to have been falsely implicated in this case by the police. 11 I have heard the arguments as advanced by the Ld. APP for the State and the Ld. Counsel for the accused.
12 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
13 On the other hand, the Ld. Defence Counsel has argued that no FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 5/16
incriminating material has come on the record against and the prosecution has miserably failed to prove the case beyond reasonable doubt. It has been further submitted that in this case, the prosecution has failed to prove the essential ingredients of the offences as alleged against him. 14 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
LEGAL ISSUES:
STANDARD OF PROOF:
15 In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 6/16 under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC ss377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted). "
Beyond Reasonable Doubt 16 In the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 Supreme Court, the Hon'ble Supreme Court observed as FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 7/16 under:
"21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v.
Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
17 The accused in the present case has been charged with offence under Section 419/420/468 and 471 IPC. The essential ingredients of the offences are as under:
The Essential Ingredients of Offence U/S 419 of IPC (1) There was deception by the accused;
(2) The accused fraudulently or dishonestly induced the complainant;
FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 8/16
(3) It was intentional;
(4) The accused thereby cheated the complainant;
(5) He did so by pretending to be some other person.
18 The offence of Cheating has been defined U/s 415 of IPC.
Section 415 IPC reads as under:
Cheating. Whoever, by deceiving any person, fraudulently or dishoneslty induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act omission causes or is likely to cause damage or harm to that person in body, mind,reputation or property, is said to "cheat".
19 The offence of Cheating by personation has been defined U/S 416 of IPC. Section 416 IPC reads as under:
Cheating by personation. A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
20 Section 471 IPC reads as under:
Using as genuine a forged document. 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).
FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 9/16 21 Section 468 IPC reads as under:
Forgery for purpose of CheatingWhoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
22 Forgery has been defined under Section 463 of IPC which reader as under:
ForgeryWhoever makes any false documents or false electronic record or part of 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.
23 Making a false documents has been defined U/S 464 of IPC.
24 Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which would warrant the conviction of the accused in the aforesaid Sections for which the accused has been charged with. It is to be further seen whether the Prosecution has brought the evidence on the record on the basis of which the accused can be convicted on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt.
FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 10/16 25 Henceforth, I shall discuss chargewise, whether the
Prosecution has been able to prove the case against the accused. Let me first discuss the charge against the accused U/S 419 IPC. To prove the case against the accused under this section the Prosecution was supposed to prove on the record that firstly, there was deception of a person by the accused by making a false or misleading representation or by other action or omission, secondly, fraudulent or dishonest inducement to that person to either deliver any property or to consent to the retention by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceive and which act or omission causes or he is likely to cause or damage or harm to that person in body, mind, reputation or property. Further, to cover the case U/S 419 IPC the Prosecution is required to prove that the accused committed the cheating by pretending himself to be some other person whether the individual impersonated is a real or imaginary person.
26 Now, it is to be seen whether the prosecution has brought such evidence on the record which would warrant the conviction of the accused U/S 419 IPC. In my considered opinion the Prosecution has miserably failed to FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 11/16 prove the case against the accused U/S 419 IPC. The prosecution has examined PW1 and 2 in support of the allegations that the accused used a forged ICard while traveling in DTC Bus which was issued in the name of Satya Pal having the knowledge that he was not the Satya Pal and he pretended to be Satya Pal. However, the evidence led by the prosecution on the record would reveal that the complainant PW Phool Singh and PW2 Dharam Pal have not support the case of the prosecution in this regard. PW1 denied the suggestion of Ld. APP that one passenger has shown him the I Card No. 350/89 of Delhi Police and further that accused told him to be the staff of Delhi Police. He could not tell whether the person who had shown the forged ICard, was the accused or not present in the Court. He stated that he had not asked the passenger about the ticket and only the Depot Manager for the ticket which is in contradiction to the complaint given by him to the police.
He could not admit or deny that accused had shown the forged ICard to the Depot Manager. He further stated that he filed the complaint because the Depot Manager had no authority to check the tickets. He could not admit or deny whether the ICard Ex. P1 was recovered from the possession of the accused. Similarly, PW2 also stated that he cannot admit or deny whether ICard Ex. P1 was recovered from the possession of the accused. In his crossexamination by the Ld. APP, he admitted that PW1 Phool Singh FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 12/16 checked the tickets of the passengers and that such passenger shown the I Card of Delhi Police when he was produced before the Depot Manager. Since, the complainant PW1 and PW2 have not supported the case of the prosecution in its material particulars visavis the charge U/S 419 IPC is concerned, in my considered opinion, the Prosecution has failed to prove the charge against the accused U/S 419 IPC. Hence, I conclude that the prosecution has failed to prove the offence U/S 419 IPC. 27 Similar would be my conclusion regarding the charge U/S 420 IPC. Since, both the prosecution witnesses have not supported the case and have not identified the accused using the forged ICard, accordingly, it has not been brought on the record that accused had cheated the DTC by using the forged ICard of Delhi Police, so that he could have avoided the payment of traveling expenses to DTC. Hence, I have no hesitation in holding that the prosecution has failed to prove the case U/S 420 IPC as well against the accused.
28 As far as Section 471 IPC is concerned, to prove the charges against the accused, the prosecution was require to prove that the accused fraudulently or dishonestly used a document or a electronic record as genuine FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 13/16 and further that the accused knew or have reason to believe the same to be a forged one. What amounts to forgery has been defined in section 463 IPC which says that a person is said to commit forgery if he makes a false document or false electronic record of part of the same with intend to do things as mentioned in said section. Section 464 IPC defines when a person can be said to make a false documents or false electronic record. Unfortunately, in the present case, the prosecution has not been able to prove on the record that the ICard Ex. P1 was a forged document which the accused used the same as genuine knowing the same to be a forged one. The reason being that firstly both PW1 and PW2 who recovered the ICard from the accused have not supported the case and not confirmed the recovery of the same from the accused. In fact they have no identified the accused in the Court. Secondly, PW4 deposed that the original record of Ct. Satya Pal would have been lying in Third Battalion, DAP, Vikas Puri but the prosecution has not proved the same on the record. Thirdly, as per the FSL Report lying on the record, it was opined that the document Mark X1 which was the ICard was tampered with in as much as that the original photograph has been removed and new photograph was pasted by using the gum, but unfortunately the prosecution has not proved the said FSL Report on the record as the author of the report has not been examined in the Court. The said report was FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 14/16 not per se admissible as per Section 293 Cr.P.C. In view of the aforesaid discussion, in my considered opinion, the prosecution has miserably failed to prove the case under Section 471 IPC against the accused. 29 To prove the charges against the accused for commission of offence U/S 468 IPC, the Prosecution must prove that the accused committed the forgery for the purpose of cheating. Forgery has been defined under Section 463 IPC and making a false document has been defined under Section 464 IPC which have already been discussed herein above. To prove the case U/S 468 IPC against the accused, the prosecution was supposed to prove that it was the accused who committed forgery which false either in 463 IPC or 464 IPC. However, none of the witnesses examined by the prosecution has said nothing about the forgery being committed by the accused. No scientific evidence has been led on the record which shows that it was the accused who committed the forgery. Not a figment of the evidence has come on the record in this regard. Accordingly, I have no option but to give my finding that the prosecution has also failed to prove the offence U/S 468 IPC against the accused.
30 From the above said discussions, I am of the opinion, that the FIR No. 29/2001 STATE V/s OM PRAKASH PAGE No. 15/16
prosecution has miserably failed to prove the case against the accused on the record. Therefore, accused Om Prakash is hereby acquitted of offences U/S 419/420/468 and 471 IPC, he has been charged with. He be set at liberty forthwith. His bail bonds are canceled. Surety bond is discharged. However, B/Bs furnished by the accused in view of the mandate of section 437A of Cr.P.C shall remain enforceable for a period of six months from today. Original documents, if any, be returned to the concerned parties after the cancellation of the endorsements, if any, after the confirmation of their identity. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 8 DECEMBER, 2011 MM09:WEST:THC
TH
08.12.2011
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