Delhi District Court
State vs . Sandeep Kumar on 9 May, 2023
IN THE COURT OF SH. AASHISH GUPTA, ACMM
NORTH EAST KARKARDOOMA COURTS, DELHI
CR Case No: 464139/2015
STATE Vs. SANDEEP KUMAR
FIR No:61 /2012
PS: Sonia Vihar
1. FIR No. of the case : 61/2012
2. Date of commission of offence : 06.05.2012
3. Date of institution of the case : 05.06.2013
4. Name of the complainant/informant: Insp. Shyam Sunder
5. Name of accused & address : 1) Sandeep Kumar
S/o Raj Pal
R/o P.O Badli, Teh.
Bahadurgarh, Distt. Jhajjar,
Haryana
2) Pardeep
S/o Kapoor Singh
R/o VPO Dugal, Near Main
Bazar, Tahsil and Distt Jhajjar,
Haryana
6. Offence charged with : 419/420/34 IPC
7. Plea of the accused : Both accused pleaded not
guilty.
8. Date of final arguments : 20.04.2023
9. Final Order : Both accused acquitted
10. Date of Judgement : 09.05.2023
State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 1/14
JUDGEMENT:
1. Prosecution has alleged that on 06.05.2012 at about 09:20 AM at Sub Sector-2, Sector-1, Ground E, PTS Wazirabad, Delhi within the jurisdiction of PS Sonia Vihar, accused Pradeep Kumar entered into a criminal conspiracy with accused Sandeep Kumar. Prosecution has further claimed that in furtherance of the said conspiracy, accused Sandeep Kumar had appeared in the written examination of Constables (Executive) on the aforesaid date in place of accused Pradeep Kumar, having admit card bearing No. 712985 belonging to Pradeep Kumar but his biometrics did not match with the record. Accused Sandeep was apprehended at the spot and later accused Pradeep was also arrested. Thus, both accused, as per prosecution, had committed offences made punishable U/s 419/34 IPC. Both the accused were arrested and charge-sheeted for the said offence.
2. Both accused appeared before this Court and after compliance under Section 207 IPC, charge U/s 420 IPC qua accused Pradeep Kumar and charge U/s 419 IPC qua accused Sandeep Kumar were framed, to which accused pleaded not guilty and claimed trial.
3. To discharge its onus, prosecution examined as many as six witnesses. A brief summary of prosecution evidence is as follows: -
State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 2/14 Sr.No. Witness Witness Remarks name no.
1 Insp. Shyam PW-1 He deposed that on 06.05.2012 he was Sunder performing the duty of supervising 10 subordinates who were appointed as Invigilators. He claimed that SI Nitin Kumar, Incharge of Row No. 20 came to him and informed that candidate bearing roll No. 712985 was wearing a tampered wrist band and his face also did not match with the photo on the admit card. He further claimed that after checking, bio- metric expert opined that the finger print of accused Sandeep did not match with the finger print of candidate in record vide the roll No. 712985 for the examination. Thereafter, accused Sandeep alongwith admit card in the name of Pradeep Kumar and expert opinion were handed over to HC Manoj Kumar.
2. SI Nitin PW-2 He deposed that he was performing the Kumar duty as Invigilator on the date of incident and was checking the candidates of his row and found that photograph on the roll number of candidate bearing the name Pradeep did not match with the person who was sitting in the examination. On suspicion and instructions from Insp. Shyam Sunder he got his bio-metric verified. He further claimed that the finger print of the candidate present did not match in the bio-metric. Thereafter, he had handed over the accused to Inps. Shyam Sunder. He duly identified the accused in the court. It may be noted that after part examination in chief of PW2, this witness could not be traced for further State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 3/14 examination in chief or could be cross- examined. This witness was eventually dropped vide dated 02.02.2023.
3. HC Lovely PW-3 He was posted at Recruitment Cell and Rahul produced the bio-metric record for the roll No. 712985 belonging to accused Pradeep Kumar.
4. Krishna Kant PW-4 Bio-metric expert who conducted the bio-
Sharma metric verification of the accused Sandeep having roll number 712985 issued in the name of Pradeep Kumar and found that fingerprint of suspect Sandeep did not match with the fingerprint of the candidate in record vide roll No. 712985.
It may be noted that this witness could not identify accused Sandeep in Court despite Ld. APP pointing out the said accused to the witness in Court.
5. Insp. N.K. PW-5 He was posted as Sr. Fingerprint expert in Sharma (now Fingerprint Bureau Crime Branch, PS Retd) Kamla Market and has proved his report.
6. HC Manoj PW-6 IO of this case.
Bhati
4. Prosecution has also relied upon the following documents:-
Sr. No. Items Exhibits 1 Statement/complaint of Insp. Shyam Sunder Ex. PW1/A
2. Bio-metric record of roll No. 712985 belonging Mark X to accused Pradeep 3 Bio-metric verification report of accused Ex. PW4/A State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 4/14 Sandeep 4 Digital fingerprints of Pradeep Kumar Ex. PW5/A
5. Rukka of present case Ex. PW6/A
6. Site plan of the spot Ex. PW6/B
7. Arrest memo and personal search memo of Ex. PW6/C and accused Sandeep Ex. PW6/D respectively.
8. Disclosure statement of accused Sandeep Ex. PW6/E 9 Arrest memo and personal search memo of Ex. PW6/F and accused Pradeep. Ex. PW6/G respectively.
10. Request letter sent to Crime Branch, Fingerprint Ex. PW6/H Bureau for result on fingerprints of both accused.
11 Case-property i.e. wrist band and admit card Ex. P1 and Ex.
P2 respectively.
12 Copy of FIR (admitted by accused) Ex. A1 Thereafter, prosecution evidence was closed.
5. Both accused were examined u/s 313 Cr.P.C and they had denied all the allegations and submitted that they have been falsely implicated in the present case. Accused Sandeep claimed that he had gone to the examination centre to drop his friend Vikas, but as they reached late, police officials did not allow his friend Vikas to enter into the examination centre, despite repeated requests. He claimed that a scuffle took place between Vikas, him and police officials at entry gate and out of vengeance, he was falsely implicated in the present case. Accused Pradeep claimed that as he was not carrying the exam board for his written State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 5/14 examination, he requested the Incharge of Ground to provide him a chair attached with table, but the chair provided to him was broken. He claimed that he again requested the police official to provide him another chair, on this they became furious and scuffle took place between them. He claimed that police official also snatched his admit card and later falsely implicated him in this case.
In this case while accused Pradeep did not produce any defence witness, accused Sandeep produced his friend Vikas as DW1. This witness deposed in line with the statement made by accused Sandeep U/s 313 Cr.P.C.
6. I have heard final arguments and have perused the record.
7. As per prosecution's case, accused Sandeep Kumar had impersonated himself as accused Pradeep Kumar and thereafter, he was apprehended from the ground where the written exam of Constables (Executives) was being held on 06.05.2012. Accused Sandeep was found in possession of one roll number of accused Pradeep Kumar alongwith a hand band given to candidates for the said exam.
8. Now as far as accused Pradeep Kumar is concerned, he has faced trial U/s 420 IPC. In the charges framed against him, it is stated that he induced his co-accused Sandeep to appear in the examination in question and also handed over his admit card to accused Sandeep. It is also alleged in the charge that he had used his fingerprints to facilitate entry of Sandeep in the examination centre. As already noted above, both State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 6/14 Pradeep and Sandeep are co-accused in this matter and it is difficult to say as to how the same person can be victim as well as accused in the same case. If, accused Sandeep was fraudulently induced by accused Pradeep (as stated in the charge of accused Pradeep), it means that Sandeep was a victim of the fraud played by Pradeep. But, Sandeep himself is an accused in this case who caused Pradeep to appear in the exam. Thus, there appears to some defect in the charge framed on accused Pradeep.
9. At the time of arguments in this case, Ld. APP for the State had submitted that even if there is some defect in the charge framed on accused Pradeep, this Court has ample power U/s 216 Cr.P.C to amend the same even at the stage of judgment. This was strongly opposed by the Counsel for the accused Pradeep. It was pointed out by the Counsel for the accused Pradeep that the matter pertains to the year 2012 with about 10 years having passed by since when the said accused has been summoned by this Court. He argued that it has been about 5 years when charges were framed in this case and a number of prosecution witnesses have been examined. He argued that considering the stage of the case and the fact that accused Pradeep was never put to notice of any other offence, except, U/s 420 IPC, any amendment to charge shall gravely prejudice his client by putting the clock back. He argued that prosecution cannot be allowed to have a de novo trial under the garb of amendment to charge. He argued that if the charges are amended today not only would the rights of accused Pradeep would be prejudiced, the rights of accused Sandeep shall also be affected as recalling of all the state witnesses shall be required which shall mean that they all will have to be re-examined. As per him, it shall give the State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 7/14 State opportunity to fill the loopholes pointed out in the cross-examination of the said witnesses in the first round and it shall essentially mean that his clients shall not only face the trial again, but the State shall have a second opportunity to prove its case against his clients. He thus, prayed that any defect in charge should be given benefit of to his client and opposed the prayer for amendment of charge.
10. There is some substance in the argument raised by the Counsel for accused. Both the accused herein were summoned way back in the year 2013 and charges in this case were framed in the year 2018. Considering the period lapsed since the framing of charges and also considering the number of witnesses examined in this case, it shall gravely prejudice the rights of both the accused, if the charges qua accused Pradeep are amended at this stage. Even though there cannot be any dispute with respect to the power of the Court U/s 216 Cr.P.C qua altering or amending the charge before pronouncement of judgment, the said power has to be judiciously exercised and cannot be invoked at the mere asking of the State. It may be noted that neither any written application was moved by the State in this regard nor any reasons specified for the delayed prayer made by the State in this regard. If the charges were allowed to be amended in this case at the stage of judgment, it would have necessitated recalling of all State witnesses again. This would not only put accused Pradeep on re-trial, but accused Sandeep shall also have to face a re-trial. Had that been allowed, any loopholes in the evidence of the prosecution could have been covered by the prosecution qua Sandeep also. This would cause grave prejudice to the said accused. Thus, keeping in mind the State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 8/14 aforesaid facts and also considering the other facts of the case, discussed in the succeeding paragraphs of the judgment, I am not inclined to grant the prayer to amend the charge made by Ld. APP. Accordingly, the prayer made by Ld. APP is declined.
11. Even If I overlook the defect to the charge framed on accused Pradeep U/s 420 IPC and treat the same to have been framed U/s 419/120B IPC (only for the sake of argument) and also consider the charge qua accused Sandeep U/s 419 IPC, still for reasons to be recorded hereinafter, the case of the prosecution appears to be on shaky ground and the evidence led before this Court does not prove the guilt of the accused persons beyond reasonable doubt.
12. Prosecution had primarily produced PW1/Insp. Shyam Sunder and PW4/Krishan Kant Sharma as the star witnesses on whose shoulders the case of the prosecution rests. It is pertinent to note that when PW4/Krishan Kant Sharma stepped in the witness box he did not identify either of the accused as the person who had given his bio-metrics at the examination center on the date of examination i.e 06.05.2012. In fact this witness claimed that the examination in question was being conducted on 06.05.2011 instead of 06.05.2012 and no suggestion was put by the Ld. APP to the said witness with respect to the correct date of the examination. It is pertinent to note that IO had cited PW1, PW2 and PW4 as the eye witnesses of the case. It may be recalled that PW2/Nitin Kumar was the person who had initially apprehended the accused but during trial he became untraceable and his testimony could never be completed. Thus, State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 9/14 the part testimony of PW2/Nitin Kumar cannot be read in evidence. This leaves PW1/Insp. Shyam Sunder and PW4/Kamal Kant Sharma to bear the burden of the prosecution's case. Now, PW1 did not identify accused Sandeep as a person produced before him by SI Nitin Kumar who had attempted to impersonate accused Pradeep. Again, PW4/Kamal Kant Sharma could not identify accused Sandeep at all. Failure of this witness to identify accused Sandeep as the person who impersonated accused Pradeep, in my opinion, is fatal to the prosecution's story. This is because with PW2/Nitin Kumar being not traceable, either PW1/Insp. Shyam Sunder or PW4/Kamal Kant Sharma should have atleast identified Sandeep as the person who had appeared in the exam by impersonating Pradeep. Failure to do so leaves a deep void in the prosecution's story.
13. Even if I try to overlook the aforesaid fact borne out from the record and consider the other evidence, still I am unable to persuade myself to believe the prosecution's story. As per record, accused Sandeep was caught around 9:20 AM. The examination timings were from 8:30 AM to 10:30 AM. It means that when the accused Sandeep was caught, he must have filled in the answer sheet/OMR sheet as Pradeep because he was caught after about 50 minutes from the scheduled time for the beginning of the exam. No such answer sheet or OMR sheet was seized by the police in this case. The said answer sheet was a very crucial piece of evidence which could have fortified the case of the prosecution. Failure to seize the same again casts a shadow of doubt on the prosecution's case.
State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 10/14
14. Again, as per record, SI Nitin Kumar had seen accused Sandeep appearing in the exam and he recovered one roll number and a band from the said person. The seizure memo was prepared by SI Nitin Kumar but the same could not be led in evidence as the said witness became untraceable before his evidence could be recorded. Thus, the recovery itself of the aforesaid articles become suspect. Even if I overlook the same, mere recovery of the said documents shall not mean that accused Sandeep had actually attempted or appeared in the examination in question by impersonating the candidate/accused Pradeep. As per record, there is no bio-metric record of Sandeep having given his bio- metrics at the examination centre, which could mean that some overt act was done by accused Sandeep towards the attempt or success in impersonating accused Pradeep. Simply put, from the record, there is nothing to show that accused Sandeep did any overt act towards the conspiracy of appearing in the exam in question for and on behalf of accused Pradeep except for the fact that he was found in the ground where the exam was to be held. It is the case of the police that accused Sandeep had given his finger prints at the examination center which did not match with the finger prints of the accused Pradeep. Possibly this mis match have resulted in generation of some report by the software/computer system being used by the authorities. It means that if the finger prints of Sandeep did not match with that of Pradeep (with Sandeep impersonating as Pradeep) then some computer generated report with respect to the said mis match must have been generated which should have been placed on record by the prosecution in support of its case. In my opinion, such report could have been a crucial piece of evidence to show that Sandeep had State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 11/14 actually presented himself as Pradeep in furtherance of some conspiracy to defraud the examining authorities. Failure to do so in this case is , in my opinion, a void which cannot be filled. In fact, police have only placed on record one hand written report Ex. PW4/A given by PW4 Krishan Kant Sharma to show that there was an actual mismatch between the finger prints of Sandeep (recorded at the examination centre on the date of the exam) as compared with that of Pradeep (already available in the records). But, surprisingly, prosecution has not placed on record the actual computer generated report in this regard in support of Ex. PW4/A. In the absence of the supporting documents which forms the basis of Ex. PW4/A, the said report Ex. PW4/A cannot be relied upon by the prosecution as the founding documents on which the said report relies have not been placed before this Court for consideration.
15. In fact, prosecution has produced one witness PW5/Retd. Insp. N.K. Sharma to prove on record some fingerprint reports Ex. P1 to Ex. P3. Perusal of the same shows that the fingerprints of Pradeep as captured on 23.05.2012 were compared with the fingerprint of Pradeep itself captured on 06.05.2012 and the two fingerprints were found identical. The report Ex. PW5/A makes reference to Ex. P1 to Ex. P3 and gives the finding that fingerprints on Ex. P1 matches with fingerprints on Ex. P2 (both fingerprints being of accused Pradeep itself). The said report Ex. PW5/A does not say anything about Ex. P3 in its findings (with Ex. P3 being fingerprints of accused Sandeep). Now if Ex. P1 were taken on 23.05.2012 i.e. after the exam was held on 06.05.2012, in my opinion, the said report Ex. PW5/A is completely useless in as much as any fingerprints taken after the exam State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 12/14 cannot mean that the person with the said fingerprints had appeared on the date of the exam. This is because the comparison being made between the fingerprints should pertain to the date of the incident/examination and/or fingerprints recorded prior to the said date. If the police took fingerprints of the accused Pradeep after the exam, it cannot mean anything. Comparison should have been done of the fingerprints taken prior to the exam and taken on the date of the exam. In my opinion, the evidence of PW5 is of no relevance in the facts of the case. Even otherwise, report Ex. PW5/A actually supports accused Pradeep in as much as Ex. P1 and Ex. P2 were found belong to him only. This is if I overlook the irrelevance of the said fingerprints considering the dates mentioned above on which they were taken.
16. Thus, considering the aforesaid facts and circumstances, the error in the framing of charge qua accused Pradeep; failure to collect the answer sheets purportedly filled by accused Sandeep; failure to collect the relevant biometric report of accused Sandeep giving his biometric as accused Pradeep; failure of identification of accused Sandeep by PW4 Kamal Kant Sharma; failure to procure presence of SI Nitin Kumar who actually apprehended accused Sandeep; failure to prove recovery of the alleged band and/or roll number of Pradeep from Sandeep are material loopholes in the evidence of the prosecution which could not be overlooked by this Court. In my opinion, if I consider the same, prosecution fails to prove its case beyond reasonable doubt which a sine qua non in a criminal case. Accordingly, each of the accused herein are entitled to be given benefit of doubt and thus, each one of them are acquitted of all offences State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 13/14 alleged against them. It is ordered accordingly.
Digitally signed by AASHISH GUPTAAASHISH Date:
GUPTA 2023.05.09
16:59:59
+0530
ANNOUNCED IN OPEN COURT AASHISH GUPTA
On 09.05.2023 ACMM (NORTH EAST)
KARKARDOOMA COURTS,
DELHI
State Vs. Sandeep Kumar & anr. FIR no. 61/2012 Sonia Vihar Page no. 14/14