Delhi District Court
Accordingly vs State on 4 May, 2012
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE,
TIS HAZARI COURTS, DELHI
F.I.R. No. 482/90
Police Station: Rajouri Garden
under Section 466/474/120B IPC
(a) Computer ID of the case : 02401R0003401991
(b) Date of commission of the : 24.06.1990
offence
(c) The name of the complainant : ASI Dharam Pal
(d) The name of the accused : 1) Surender Singh S/o Sh.
persons, their parentage and NIranjan Singh R/o H.
residence No. W2336/127, Chand
Nagar, Tilak Nagar, Delhi
(Proclaimed Offender).
2) Pritam Singh S/o Sh.
Teja Singh R/o Village
Bandal Baid, PS Dilwa,
District Kapurthala,
Punjab.
3) Harbhajan S/o Sh.
Niranjan Singh R/o
Mustafapur, PS Kartar,
District Jaldhar, Punjab
(Proclaimed Offender).
4) Jasvir Singh S/o Sh.
Bakshi Singh R/o Village
Dhariwal, PS Dilwa,
District Kapurthala,
Punjab.
FIR No. 482/90 PS Rajouri Garden Page 1 of 28
(e) The offence complained of : Under Section 474 and 466
r/w Sec.120B IPC.
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Accused Pritam convicted
for offence u/s. 474 IPC
and acquitted for offence
u/s 466 r/w 120B IPC
Accused Jasvir - acquitted
for all offences.
(h) The date of such order : 04.05.2012
Police case was instituted on: 02.04.1991
Final arguments were advanced on: 01.05.2012
Judgment is announced on: 04.05.2012
JUDGMENT
In the present case, the final report under Section 173 Cr.P.C. was filed against aforesaid four accused persons. During the course of trial, the accused no.1 and 3 were declared proclaimed offenders. Accordingly, this judgment is passed in respect of accused Pritam and Jasvir only. The present case is one of the identified cases as per the list of 20 oldest cases in compliance to the direction of the Hon'ble High Court of Delhi.
FIR No. 482/90 PS Rajouri Garden Page 2 of 28Brief facts of the case:
2. It is the case of the prosecution that on 24.05.1990 at 3.30 PM at Najafgarh Road, Tagore Garden Crossing both the accused persons in furtherance of their common intention conspired together alongwith other accused persons namely Surender Singh and Harbhajan Singh in forging passport no.
W533570 and the said forged passport was recovered from the possession of accused Pritam Singh and thereby the accused persons committed offences punishable under Section 474, 466, and 120B IPC. After investigation of the present case, present challan was filed alleging the said offences.
3. On the basis of material on record, a charge was framed against accused Pritam Singh for the offence under Section 474 IPC to which he pleaded not guilty and claimed trial. A joint charge was also framed against accused Pritam Singh and accused Jasvir Singh for the offences under Section 466 read with Section 120B IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined following seven witnesses, namely:
PW1 Bubbal Khosla PW2 S.N. Rajamani PW3 Jitender Kumar PW4 ASI Santokh Singh PW5 T.R. Narasimhan FIR No. 482/90 PS Rajouri Garden Page 3 of 28 PW6 HC Subhash Chander PW7 SI Vijender Singh
5. Statements of the accused persons under Section 313 Cr.P.C. were recorded. The accused persons did not examine any witness in their defence. I have heard Assistant Public Prosecutor for the State and counsel for the accused persons. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
6. The prosecution examined seven witnesses. PW1 Bubbal Khosla deposed that in the month of May, 1990, she gave four passports pertaining to herself, her husband and her children, namely, Nandita Khosla and Nikhil Khosla to a travel agent i.e. Trans Tours Travels, Scindia House for procuring tickets. But she received back only three passports and the passport of her husband Sh. Vinod Khosla was not returned to her. After seeing the passport in question, she deposed that passport (mark 'A') is in the name of her husband but it bears the photograph of somebody else.
7. PW2 S.N. Rajamani from Regional Passport Office deposed that on 04.02.1990 he verified the passport bearing no. W533570 dated 20.08.1984 pertaining to one Vinod Khosla from their record and he had given his detailed report to this effect and the same is Ex. PW2/A. FIR No. 482/90 PS Rajouri Garden Page 4 of 28
8. PW3 Shri Jitender Kumar, Asstt. Manager, Reservations, AIR India deposed that in the year 1990 he was posted as Chief Traffic Assistant in Air India and on the relevant date he only received the vouchers and not the passports for preparing tickets.
9. PW4 ASI Santokh Singh deposed that on 10.08.1990 he conducted further investigation of this case and recorded the statement of Babber Khosla w/o Vinod Khosla. He further stated that on the same day he also recorded the statement of Ms. Sujata of Tour and Travel Agency.
10. PW5 T.R. Narasimhan (from Belair Travel & Cargo Pvt. Ltd.) deposed that on 15.05.1990 four passports no. 533570, 582293, 662725 and 662591 belonging to Mr. Vinod Khosla and his family members were handed over to him for obtaining Air India tickets for their travel to Lisbon and he handed over those passports to his assistant Sujata Ramachandran for processing the tickets. He further stated that on the same evening three aforesaid passports and 4 tickets were handed over to the passengers and the passport no. W533570 of Mr. Vinod Khosla was missing. He further stated that these passports were handed over around mid day by Ms. Sujata to M/s. Air India at Jeevan Bharti Building, Parliament Street, New Delhi for issuance of the tickets and in the evening when Air India handed over the tickets for all the passengers, only three passports excluding that of Mr. Vinod FIR No. 482/90 PS Rajouri Garden Page 5 of 28 Khosla were given to them. He further stated that Mr. Pawan S. Jain, Managing Director of Trans Tours Pvt. Ltd. lodged a complaint to the PS Connaught Place for the loss of Mr. Vinod Khosla's passport and the same is Ex. PW5/A. He further deposed that he had also replied during the course of investigation to Inspector, Special Staff, West District along with Ms. Sujata Ramchandran and their respective replies in this regard are Ex. PW5/B (consisting of three pages) and Ex. PW5/C (consisting of two pages).
11. PW6 HC Subhash Chander and PW7 SI Vijender Singh are the most important recovery witnesses and accordingly their testimonies are reproduced entirely. PW6 HC Subhash deposed that on 24.06.1990 he along with ASI Dharampal, ASI Santokh Singh, HC Bijender, HC Ramesh along with other two staff including Inspector Ravi Shanker in a government vehicle no. DDL 6725 driven by driver Ct. Rajender Singh were returning to the Special Staff office via Major Sudesh Marg and when they reached Najafgarh road crossing, Tagore Garden, one secret informer stopped the vehicle and informed about the presence of one sikh person and one Mona (the sikh person by the name of Jassi was a well known criminal) about having weapon. PW6 further stated that on this information Inspector Ravi Shanker formed a raiding party and at about 3.30 PM at the instance of secret informer accused Jasvir Singh was apprehended and ASI Dharampal along with other staff members apprehended accused FIR No. 482/90 PS Rajouri Garden Page 6 of 28 Pritam Singh. He further stated that one country made revolver loaded with live cartridges was recovered from the possession of accused Jasvir in which separate investigation was done by ASI Santokh Singh. It is also stated that one black color hand bag (chainwala) was recovered from the possession of accused Pritam Singh which was opened by ASI Dharampal and it was found containing two Indian passports. One passport bearing no. W533570 on which the photograph of Pritam Singh in Mona (without hairs and pagri) condition was found but the passport was in the name of Vinod Khosla and another passport bearing no. G570876 on which the photograph of accused Pritam Singh (in sikh position) and its original name Pritam Singh and address was written. He stated that as per the disclosure statement of accused Pritam Singh and accused Jasvir Singh the later passport no. G570876 was duplicate and original belong to accused Pritam Singh whose duplicate was taken out from the authorities whereas the former passport no. W533570 does not belong to him and belong to Vinod Khosla whose name and address were found mentioned on the passport but it bears the photograph of accused Pritam Singh. He further deposed that accused Pritam Singh wanted to go America and as such he talked with accused Jasvir Singh and a deal was struck for Rs. 1.5 lacs, of which Rs. 25,000/ had already taken by accused Jasvir as advance and the accused Jasvir along with coaccused Harbhajan Singh and Surender Singh prepared the aforesaid forged passport by changing the photograph of Vinod Khosla as the aforesaid passport bears the FIR No. 482/90 PS Rajouri Garden Page 7 of 28 visa for America and the page no. 27,28 and 29 of the aforesaid passport bears the stamp of America visa. He stated that on page no. 27 cancellation stamp was marked and on page no. 28 visa was present and on page no. 29 another visa was found affixed, both bearing no. 105368 and 105369. He also stated that the duplicate passport of accused Pritam Singh did not bear any visa and, as such, the accused Pritam Singh for the purpose of going to America got prepared the forged passport with the help of accused Jasvir, Harbhajan and Surender Singh. Disclosure statements of accused Jasvir Singh is Ex. PW 6/A and accused Pritam Singh is Ex. PW6/B. Both the aforesaid passports with hand bag recovered from accused Pritam Singh were taken into possession vide seizure memo Ex. PW6/C. He further stated that IO prepared rukka Ex. PW6/D and handed over the same to him and he went to the PS Rajouri Garden and got the present case registered and returned to the spot and handed over the copy of FIR and original endorsement to IO.
12. PW6 further stated that both the accused persons thereafter voluntarily led them to H. No. 336/127, Chand Nagar, Delhi and got arrested the coaccused Surender Singh to whom he can identify if he is produced before him and accused Surender Singh thereafter got recovered (from one almira kept in room of his house) one yellow color polythene bag which was containing 12 passport polythene stickers, one Indian passport whose number is mentioned in seizure memo whose stitching was found FIR No. 482/90 PS Rajouri Garden Page 8 of 28 loose of which many pages were found missing whose number found mentioned in the seizure memo. He further stated that the passport was in the name of Kulvinder Singh, one page of passport no. 3 and 4 on which some of the particulars were erased with white color which was used for photocopy of the page of photograph, one piece of paper, one plastic bottle of hydrogen peroxide, one tube of adhesive suoperfix and needle and thread rolled over a piece of paper, all the aforesaid articles used in preparing the forged passports. He further stated that the item no. 2 and 3 shown in the seizure memo were taken into possession separately by turning the same into a pulinda and rest of the articles rekept into the same plastic bag and also taken into possession by turning the same into a pulinda and both the pulindas were sealed with the seal of 'DP' and the seizure memo is Ex. PW6/E. Disclosure statement of accused Surender Singh is Ex. PW6/F. He further stated that both the accused persons along with coaccused Surender Singh thereafter as per the disclosure voluntarily led the police party for apprehension of accused Harbhajan Singh who was apprehended at the instance of all the three accused in between the way and he can identify accused Harbhajan Singh (PO) if he is produced before him. He further stated that one page no. 3/4 of the passport no. W533570 was found from the possession of accused Harbhajan Singh from his purse and the aforesaid page was found scratched from different places from which it was revealed that the same belong to the passport of Vinod Khosla which was forged in favour of accused FIR No. 482/90 PS Rajouri Garden Page 9 of 28 Pritam Singh and which was the original page of passport of Vinod Khosla and the aforesaid page was kept in an envelop and sealed with the seal of 'DP' and was taken into possession vide memo Ex. PW6/G. He further stated that statement of accused Harbhajan Singh was recorded which is Ex. PW6/G and the passport no. W533570 recovered from accused Pritam Singh is placed on file and the same is Ex. PW6/J. Both the accused persons along with other two accused persons were arrested and during the course of investigation, their personal search was conducted vide memos Ex. PW6/K to Ex. PW6/M (personal search memo of accused Jasvir as per the witness was kept in Arms case file). Witness identified the one black raxsin bag containing duplicate passport in the name of accused Pritam Singh passport no. G570876 having the photograph of accused Pritam Singh, one another passport which was already placed with judicial file no. W533570 in the name of Vinod Khosla having the photograph of accused Pritam Singh (in mona condition). Witness also identified both the passports, passport no. W533570 being the forged passport and passport no. G570876 being the duplicate passport of accused Pritam Singh. Passport no. W533570 already Ex. PW6/J, passport no. G570876 Ex. P1 and raxsin bag is Ex. P2. Witness also identified the sealed parcel sealed with the seal of 'DP' and the same contained one passport page of passport no. W533570 and witness identified the same being recovered from the possession of accused Harbhajan Singh. Witness also identified the passport no. W983369 recovered from the possession of accused Surender Singh and the FIR No. 482/90 PS Rajouri Garden Page 10 of 28 passport page and passport Ex. P3 and Ex. P4 respectively. He identified the case property passport no. W983369 and one passport page no. 3 and 4 recovered from the accused Surender Singh mentioned in seizure memo at S. No. 3 and the passport recovered from the accused Surender Singh mentioned at S. No. 2 in the seizure memo Ex. PW6/E and the passport is already Ex. P4 and the page is Ex. P5. He also identified the plastic bottle of hydrogen peroxide, one superfix adhesive tube, one white colour thread wrapped on a paper with a needle, 12 passport photo page for pasting polythene stickers on which red printing containing ten lines " Bharat Passport Adhikari Passport Authority of India", one piece of paper on which red colour four partition lines. The aforesaid articles/case property are collectively Ex. P6, polythene bag is Ex. P7 recovered from the possession of accused Surender Singh.
13. PW7 SI Vijender Singh is a police official who deposed that on 24.06.1990 he along with Inspector Ravi Shanker, ASI Dharampal, ASI Santokh Singh, HC Ramesh, Ct. Subhash, Ct. Satish and Ct. Satpal were coming back from the side of Kirti Nagar in a government vehicle and when they reached at Najafgarh road crossing, one secret informer met them and disclosed to the Inspector Ravi Shanker that at Tagore Garden bus stand two persons were standing who had possession of weapon and they were also indulge in the business of sending persons outside India. He stated that on this information Inspector Ravi FIR No. 482/90 PS Rajouri Garden Page 11 of 28 Shanker formed a raiding party and at the instance of secret informer accused Jasvir Singh and accused Pritam Singh were apprehended. He further stated that one country made revolver was recovered from the possession of accused Jasvir in which separate investigation was done by ASI Santokh Singh. He stated that one bag was recovered from the possession of accused Pritam Singh which was opened by ASI Dharampal and found containing two Indian passports. One passport bearing no. W533570 on which the photograph of Pritam Singh in Mona (without hairs and pagri) condition was found but the passport was in the name of Vinod Khosla and another passport bearing no. G570876 on which the photograph of accused Pritam Singh (in sikh position) and its original name Pritam Singh and address was written. He stated that disclosure statements of accused Pritam Singh and accused Jasvir Singh are Ex. PW6/A and Ex. PW6/B. Both the aforesaid passports with hand bag recovered from accused Pritam Singh were taken into possession vide seizure memo Ex. PW6/C. He further stated that he prepared rukka Ex. PW6/D and handed over the same to Ct. Subhash and he went to the PS Rajouri Garden and got the present case registered and returned to the spot and handed over the copy of FIR and original endorsement to IO.
14. PW7 further stated that both the accused persons thereafter voluntarily led them to H. No. 336/127, Chand Nagar, Delhi which was owned by accused Surender and got arrested the FIR No. 482/90 PS Rajouri Garden Page 12 of 28 accused Surender Singh to whom he can identify if he produced before him and accused Surender Singh thereafter got recovered a yellow color polythene bag which found contained 12 passport polythene stickers, one torn passport, one bottle of thenyl and thread needle ETC from the almirah which was kept inside the house of accused Surender. The same recovered items were seized vide seizure memo Ex. PW6/E. Disclosure statement of accused Surender Singh is Ex. PW6/F. He further stated that both the accused persons along with coaccused Surender Singh thereafter as per the disclosure voluntarily led the police party for apprehension of accused Harbhajan Singh who was apprehended at the instance of all the three accused in between the way and the accused Harbhajan Singh (PO) to whom he can identify if produced before him. He further stated that one page no. 3 and 4 of the passport no. W533570 was recovered and the same pages were seized vide memo Ex. PW6/G. He further stated that statement of accused Harbhajan Singh was recorded which is already Ex. PW6/H. He identified the passport no. W533570 recovered from accused Pritam Singh is Ex. PW6/J. He also identified the case property in a pulinda sealed with the court seal and one black bag and it contains one passport (duplicate) in the name of accused Pritam Singh bearing no. G 570876, the same passport is already Ex. P1 and raxine bag is Ex. P2. He also identified one passport page of passport no. W533570 and a passport bearing no. W983369 Ex. P3 and Ex. P4. He also identified the plastic bottle of hydrogen peroxide, one white FIR No. 482/90 PS Rajouri Garden Page 13 of 28 colour thread with needle, 12 passport photo pages for pasting polythene stickers on which red printing containing ten lines "Bharat Passport Pradhikari, Passport Authority of India", one piece of paper on which red colour four portion lines. The aforesaid articles/case property are collectively Ex. P6, polythene bag is Ex. P7 recovered from the possession of accused Surender Singh.
DEFENCE OF THE ACCUSED
15. In the statement recorded under section 313 Cr.P.C., accused Jasvir Singh took the defence that at the relevant time, any person belonging to Sikh Community used to be treated as terrorist and when he arrived in Delhi, he was apprehended from the Railway Station and falsely implicated in this case and a TADA case. In the statement recorded under section 313 Cr.P.C., accused Pritam Singh stated that the present case is a false case and he is a simple farmer and he does not know what proceedings were conducted by the IO. He took the defence that one photographer came to the police station and he took his photo and affixed on the forged passport.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
16. As per FIR, the case emanated when the officers of Special Staff on a secret information conducted a search at the FIR No. 482/90 PS Rajouri Garden Page 14 of 28 Najafgarh Road Crossing, Tagore Garden where the accused persons, namely, accused Pritam Singh and accused Jasvir Singh @ Jassi were apprehended. On the search of accused Jasvir Singh, one loaded pistol was recovered for which a separate case was registered, investigated and tried against him. From the search of accused Pritam Singh, two Indian passports were recovered. On further investigation, one of the said passports was found to be a forged document. On the disclosure of above said two accused persons, further information was revealed that the accused Jasvir Singh used to send interested persons abroad and for doing such acts, forged documents are prepared by them and the two other persons, namely, Surender Singh and Harbhajan Singh (who are PO). In the present case, two separate charges were framed against the accused persons, namely, Pritam Singh and Jasvir Singh. To clearly appreciate the evidence against each accused, their role is being discussed separately as under:
Role of accused Jasvir Singh @ Jassi
17. The accused Jasvir Singh is charged for the offence u/s 466 IPC r/w Section 120B IPC to the effect that accused Jasvir Singh conspired with coaccused Pritam Singh and forged passport no.W533570 to send latter abroad. In order to have a better understanding of the said offences, they are reproduced hereunder:
FIR No. 482/90 PS Rajouri Garden Page 15 of 28Section 466 IPC - "Whoever forges a document or an electronic record, purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial or a register kept by a public servant, as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine".
Section 120A IPC (Defines conspiracy) - When two or more persons agree to do, or cause to be done (1) an illegal act or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
18. As far as Section 120B IPC relating to conspiracy is concerned the gist of the offence is an engagement or an association between two or more persons to break the law. In the definition of criminal conspiracy itself, a distinction is drawn between an agreement to commit an offence and an agreement which is though lawful but the means or objects employed are unlawful. In the case of the former, the criminal conspiracy is complete by the act of agreement but in the case of latter, there FIR No. 482/90 PS Rajouri Garden Page 16 of 28 must be some act done by one or more of the parties to the agreement to effect the object thereof, that means there must be an overt act. As far as Section 466 IPC is concerned, the said Section provides punishment for the person who forges a document.
19. From the FIR, it is clear that the said alleged forged passport was not found from the possession of accused Jasvir Singh but it was found from the possession of accused Pritam Singh. There are only disclosure statements on record of the accused persons which put blame on the accused Jasvir Singh.
There is no discovery of any fact/material in pursuance of such disclosure statements. Prosecution examined total 7 witnesses. Out of them, first five witnesses deposed on the point of missing of passport in question and lodging of complaint to the police. The most important witnesses of the prosecution are PW6 and PW7. PW6 HC Subhash Chand deposed that accused Pritam Singh wanted to go America, and as such, he talked with accused Jasvir Singh and a deal was struck for Rs. 1.5 lacs, out of which Rs. 25,000/ was already paid to accused Jasvir Singh as advance amount and accused Jasvir Singh along with coaccused Harbhajan Singh and Surender Singh prepared the said forged passport by pasting the photograph of Sh. Vinod Khosla. The above said deposition of PW6 HC Subhash Chand is not admissible in evidence inasmuch as the same is based on disclosure statements of accused persons and the investigating FIR No. 482/90 PS Rajouri Garden Page 17 of 28 agency did not collect the evidence to prove the factum of so called deal/agreement or payment of said advance amount. Be that as it may, in my opinion, an agreement to send some one abroad cannot be termed an illegal act what is unlawful is the means or methods adopted for sending a person abroad and in the present case the offence of criminal conspiracy has to be judged on the point of illegal means or methods. Prosecution did not place on record any material or evidence to prove that the accused Jasvir Singh did any overt act for forging the passport in question or to conspire with the other accused persons for forging such passport. Ld. APP for the State argued that one of the missing page of forged passport and other 12 passports were recovered at the instance of accused Jasvir Singh and, as such, he is liable for commission of the offence of forgery or conspiracy. From the deposition of PW6 HC Subhash Chand, it came on record that the said missing page was recovered from the purse of coaccused Harbhajan Singh and not from the accused Jasvir Singh. Moreover, there is no linking evidence about tearing of the said page of the passport in question, its handing over to co accused Harbhajan Singh or recovery of other passports. PW7 SI Bijender corroborated the deposition of PW6 HC Subhash Chand in its entirety but he clearly admitted in his cross examination that no document/material relating to passport was recovered from accused Jasvir Singh.
20. It is also a settled proposition of law that one person FIR No. 482/90 PS Rajouri Garden Page 18 of 28 cannot be convicted solely on the basis of doubt, howsoever, strong it may be. In the case of Syad Akbar v. State of Karnataka, AIR 1979 SC 1848) it was illustrated that "In the criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved and criminality is never to be presumed subject to statutory exception." The Section 25 to 27 of the Indian Evidence Act also specifically bar admissibility of disclosure statements made in the custody of police except for discovery of facts consequent upon such disclosure.
21. In view of the aforesaid facts and circumstances, I hold that prosecution failed to prove on record the essential ingredients of offences u/s 466 IPC and Section 120B IPC against accused Jasvir Singh.
Role of accused Pritam Singh
22. Accused Pritam Singh is charged for the offences u/s 474 and 466 IPC r/w Section 120B IPC. In order to draw out the essential ingredients of Section 474 IPC, the same is reproduced hereunder:
Section 474 IPC provides that "Whoever has in his possession any document or electronic record, FIR No. 482/90 PS Rajouri Garden Page 19 of 28 knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in Section 466 of IPC be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and if the document is one of the description mentioned in Section 467, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."
23. From the reading of Section 474 IPC, three major ingredients emerge viz.
(i) That the document which is recovered from the accused is forged.
(ii) It must be established that the accused knew that the documents were forged.
(iii)Thirdly, it must also be established that the accused, knowing that the documents were forged, intended the same, fraudulently or dishonestly, to be used as genuine.
Whether the recovered Passport No. W533570 is a forged document?
24. PW6 HC Subhash Chand deposed that on 24.06.1990 accused persons, namely, Jasvir Singh and Pritam Singh were FIR No. 482/90 PS Rajouri Garden Page 20 of 28 apprehended. On checking, one black color handbag (chainwala) was recovered from the possession of accused Pritam Singh which was opened by ASI Dharampal and it was found containing two Indian passports. One passport bearing no. W533570 was having photograph of accused Pritam Singh in Mona condition (without hairs and pagri) but the said passport was in the name of Vinod Khosla. Another passport bearing no. G570876 was having a photograph of accused Pritam Singh (in sikh position) and having name of accused Pritam Singh. It was revealed that the latter passport no. G570876 was duplicate and original which belongs to accused Pritam Singh while the former passport no. W533570 did not belong to accused Pritam Singh and it belongs to Vinod Khosla (whose name and address were found mentioned on the passport) but it born photograph of accused Pritam Singh. PW6 HC Subhash Chand further stated that accused Pritam Singh wanted to go to America and, as such, he talked with accused Jasvir Singh and accordingly accused Jasvir Singh and other accused persons prepared the aforesaid forged passport by changing the photograph of Vinod Khosla and the aforesaid passport also borne the visa of America on page no. 28 and 29. The passport in question bearing no. W533570 recovered from the possession of accused Pritam Singh is proved as Ex. PW6/J. PW7 SI Bijender corroborated the statement of PW6 HC Subhash Chand in its entirety. From the above evidence of the recovery witnesses, it is proved that accused Pritam Singh was found in possession of a forged document. The accused simply took the FIR No. 482/90 PS Rajouri Garden Page 21 of 28 defence that he was falsely implicated in this case and his photograph was taken in police station and pasted on the forged passport. I do not find any substance or force in the defence of the accused as he did not allege any kind of enmity between him and police officials, nor he gave any reason as to why he was falsely implicated. The accused did not allege or prove on record any complaint made to any authority regarding his alleged false implication. Moreover, the most important linking evidence on record is the recovery of one missing page of the forged passport from coaccused Harbhajan Singh which was effected in the sequel of disclosure statements of the accused Pritam Singh and Jasvir Singh. The forged passport find affixed photograph of accused Pritam Singh. In view of aforesaid evidence, I hold that the prosecution proved on record beyond doubt that the passport No. W533570 was a forged document and it was recovered from the possession of accused Pritam Singh.
25. Counsel for the accused vehemently argued that the prosecution did not prove the missing report of the alleged forged passport because it did not examine the real holder of the passport i.e. Sh. Vinod Khosla. No doubt the prosecution did not examine Shri Vinod Khosla as a witness, but there are various other evidences on record which prove the missing report as well as the belongingness of the said forged passport. It is seen that PW1 Babbar Khosla (who is the wife of Sh. Vinod Khosla) categorically deposed that she had given four passports to the travel agency and FIR No. 482/90 PS Rajouri Garden Page 22 of 28 she received back only three passports and the passport of her husband was not returned to her. The PW5 T.R. Narsimhan reaffirmed the fact of missing of passport in question by saying that he had lodged a complaint in PS Connaught Place for lost of passport of Sh. Vinod Khosla and the same is proved on record as Ex. PW5/A. The PW2 S.N. Rajamani who came from Regional Passport Office also deposed that he verified the passport no. W533570 which was pertaining to Sh. Vinod Khosla and in this regard he had given his detailed report which is proved as Ex. PW2/A. In the said report, it is clearly mentioned that the passport no. W533570 dated 30.08.1984 was issued to Sh. Vinod Khosla and said Sh. Vinod Khosla had reported lost of said passport. PW2 S.N. Rajamani further disclosed in his report that the photograph and specimen signature pasted on page no. 3 does not tally with his office record. In view of above evidence, I am of the opinion that the abovesaid contention of counsel for the accused is misconceived and meritless.
Element of Knowledge
26. The aspect of "Knowledge" is proved from the fact that the accused Pritam Singh was found in possession of two passports at one point of time having his photographs on the said two passports while one of them was original and the other one (in the actual name of Vinod Khosla) was forged. This fact is itself sufficient to prove knowledge on the part of accused Pritam Singh.
FIR No. 482/90 PS Rajouri Garden Page 23 of 28Element of Intention
27. It is the common knowledge that intention is the mental state of mind or that it exists in idea before it exists in fact. The word 'intention' does not mean ultimate aim or object. It is the settled proposition of law that intention of a person cannot be judged by reading mind of a person which is a humanly impossible but it has to be gathered or inferred from the action/inaction or conduct of the person or the circumstantial evidence. The genuine passport of accused Pritam Singh did not bear any visa and, as such, it is abundantly clear that the accused Pritam Singh forged passport No. W533570 (belonging to Vinod Khosla) himself or got it forged by pasting his own photograph on it with the help of coaccused persons or some other person with the only intention to go America as the said forged passport was having affixed visa stamps of America. Had the accused have no intention of going to America, he would not have used the said passport for affixing his photograph (which was having the visa stamps of America on page No.28/29) and his original passport would be suffice to fulfill all lawful objects. In simple words, one person does not need two passports if he had no bad intention to commit an offence or to go abroad fraudulently. The above said facts and circumstances clearly proved that the accused Pritam Singh was having passport No. W533570 knowing the same to be forged and intending that it shall be used dishonestly or FIR No. 482/90 PS Rajouri Garden Page 24 of 28 fraudulently to visit abroad i.e. America.
28. Counsel for the accused contended that the forged passport was never used for any purpose by the accused Pritam Singh and, as such, no offence is made out. In my opinion, in order to commit an offence u/s 474 IPC, there is no requirement of using the said forged document and the word "shall" in the sentence "intending that the same shall fraudulently or dishonestly be used as genuine" indicates that mere intention of using the said passport in future is enough and there is no requirement in the said Section that it has to be used immediately. Moreover, the Legislator specifically enacted Section 471 as a distinct offence providing punishment for 'using' the forged document. If the said forged passport might be used fraudulently or dishonestly, then it would be an offence under Section 471 IPC and not under Section 474 IPC. Accordingly, I am of the opinion that the said contention of the counsel for the accused is misconceived and is accordingly rejected.
29. In the statement u/s 313 Cr.P.C., accused Pritam Singh simply took the defence that he was falsely implicated in this case at the instance of the police officials. But at the same time, accused Pritam Singh admitted his presence on the spot while he stated that he was roaming in the market on the day of incident for buying spare parts of the tractors. He further admitted that he was apprehended by the police along with his bag which contained his FIR No. 482/90 PS Rajouri Garden Page 25 of 28 original passport. As such, it is clear that the accused Pritam Singh did not dispute his presence at the spot on the day of incident. It was on the accused to prove the fact that he was present in the market for buying spare parts as alleged but the accused did not lead any evidence in this regard.
30. It is further argued by counsel for the accused that one cannot be convicted only on the basis of evidence of police officials. In support of this argument, the counsel relied on the case of Munni Lal v. State (1995 JCC 110). The Section 118 of the Indian Evidence Act speaks about the person who are competent to depose. Neither this Section nor any other provision of the Indian Evidence Act bar on relying upon the testimony of police officials. Moreover, the facts of the cited cases are entirely distinguishable to the facts of present case in as much as the cited case pertains to the offence of NDPS Act which essentially mandates joining of respectable public witnesses whereas the present case pertains to IPC. Apart from above fact, in the present case, the police officials (PW6 HC Subhash Chand and PW7 SI Bijender) are the important recovery witnesses of the forged passport and not mere formal witnesses. Accordingly I find no merit in this argument of the counsel for accused.
31. Counsel for the accused further argued that Investigating Officer of the case has not been examined in this case and, as such, case of the prosecution is not proved. No FIR No. 482/90 PS Rajouri Garden Page 26 of 28 doubt, the Investigating Officers are important witnesses of any police case but it is also the settled proposition of law that a case can be proved by other witnesses who may be eye witnesses or other important witnesses. In the present case, prosecution examined as many as seven witnesses and out of them, PW6 HC Subhash Chand and PW7 SI Bijender are the most important witnesses who gave very natural and trustworthy evidence in corroboration of each other. Apart from examination of the above said witnesses, there are ample documentary evidence on record which establish the case of the prosecution beyond all doubt.
Section 466 r/w 120B IPC
32. In the present case, the prosecution already proved the existence of forged document i.e. the passport No.W533570 but there is not even a single witness who is the eye witness (out of the total 7 witnesses examined) who have seen any of the accused persons while committing the act of forgery with the passport no.W533570. The evidence of PW1 to PW5 are to the extent of proving missing report of passport in question and the deposition of police officials i.e. PW6 HC Subhash Chand and PW7 SI Bijender are to the extent of recovery of said forged passport and thus none relate to the stage of preparation of forgery or the stage of conspiracy. The aspect of conspiracy is already discussed in detail in the paragraphs while discussing the role of coaccused Jasvir Singh and the said reasons apply here also mutatis mutandi.
FIR No. 482/90 PS Rajouri Garden Page 27 of 28Accordingly, I am of the opinion that there is no sufficient evidence on record to prove the offences u/s 120B IPC r/w Section 466 IPC. In this regard, I also rely on the case cited by learned counsel for the accused i.e. Santosh Kumar Padhy and Another Vs. State, 568 CRIMES XI1991(3) wherein it was held that "there is no documentary evidence with regard to the forgery nor is there any evidence of the witnesses who have deposed to have seen the accused forging the signature of the Magistrate on summons". In the light of aforesaid facts and circumstances, I hold that the prosecution failed to prove the offences under Section 466 and 120B IPC against the accused Pritam Singh also.
33. Keeping in view the aforesaid facts and circumstance and the above discussion, I hold that the prosecution succeeded in proving the offence under Section 474 IPC against accused Pritam Singh but, at the same time, it failed to prove the essential ingredients of offences under Section 466 read with Section 120 B against both the accused persons, namely, Jasvir and Pritam. Accordingly, both the said accused persons are acquitted for the offences under Section 466 and 120B IPC. However, the accused Pritam Singh is convicted for the offence under Section 474 IPC.
Announced in the open court on 04.05.2012 (Naresh Kumar Laka) Metropolitan Magistrate, Tis Hazari Courts, Delhi FIR No. 482/90 PS Rajouri Garden Page 28 of 28