FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr. IN THE COURT OF MM08 (CENTRAL DISTRICT) TIS HAZARI COURTS COMPLEX, DELHI. Presiding Officer: [ENTITY], DJS. IN THE MATTER OF : [ENTITY] Vs. [ENTITY] & Anr FIR No. 148/2011 PS : New Delhi Railway Station U/s 170/468/34 [ACT] Date of Institution : 05.06.2013 Date of reserving of order : 28.09.2019 Date of Judgment : 23.10.2019 CNR No. DLCT020001532013 JUDGMENT
1. Serial No. of the case : 287027/2016 2. Name of the Complainant : [ENTITY] Vigilance Inspector 3. Date of incident : 29.06.2011 4. Name of accused persons : Accused No. 1 - [ENTITY] S/o Ram Shankar Singh R/o H.No. 108, Neelmani Colony, Arthala, Ghaziabad U.P. Accused No. 2 [ENTITY] S/o Sh Balam Singh, R/o H.No. C104, FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
Lajpat Nagar, PS Shaibabad, Ghaziabad U.P
5. Offence for which chargesheet was filed : 170/468/34 [ACT]
6. Offence for which charge has been framed :
Accused [ENTITY] has been charged with the offences punishable under [SECTION] [ACT], 170 [ACT], [SECTION] and [SECTION] [ACT] . Accused [ENTITY] has been charged with offences punishable under [SECTION] [ACT] & [SECTION] [ACT].
6. Plea of accused : Not guilty
7. Final Order :
Accused No. 1 Convicted Accused No. 2 Acquitted 8. Date of Judgment : 23.10.2019 BRIEF REASONS FOR ORDER:
1. Mr. [ENTITY] (hereinafter referred to as accused no. 1) and Mr. [ENTITY] (hereinafter referred to as accused no. 2), the accused herein, have been chargesheeted for committing offences FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
punishable under [SECTION], [ACT] (hereinafter referred to as "[ACT]").
2. The case of the prosecution is that on 29.06.2011, accused [ENTITY] was trying to board the ladies coach of one EMU train at Tilak Bridge Station at about 10:00 a.m. At that time, he was apprehended by complainant Inspector [ENTITY] and Inspector [ENTITY], both inspectors of vigilance RPF, while they were conducting routine checking. On inquiry from accused no.1, he stated that he was an RPF Constable and was posted at Traffic Account Building (TA), Estate Entry Road, Near DRM Office, New Delhi. Thereafter, the inspectors asked accused no.1 to show his Icard. He produced his Icard which appeared to be forged. They further inquired from him as to where did he get the said Icard issued. Accused no.1 stated that the same had been issued by Mr. [ENTITY], accused no.2 in the present case, working at the abovesaid TA building. Thereafter, the inspectors took the accused no.1 to the Office of Dy. FA/CAO at the abovesaid TA Building. Mr. [ENTITY] and accused no. 2 were called to the Office FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
of Dy. FA/CAO. On examining the aforesaid Icard, Mr. [ENTITY] stated in the writing that the Icard was fake and had not been issued by the aforesaid office and that accused no.1 was not an employee of Railways. Thereafter, the aforesaid Icard was seized by PW1 and statement of accused no.1 was recorded by him. Accused no.1 was arrested and his personal search was conducted. Thereafter an FIR was registered on the same date at PS NDRS, under [SECTION] [ACT] against accused no.1 on the complaint by PW2. During investigation, accused no. 1 was apprehended at the instance of the complainant and formally arrested on 29.06.2011 and the accused no.2 was formally arrested on 12.10.2011. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused persons were chargesheeted for the offences punishable under [SECTION] [ACT].
3. After perusing the record, cognizance was taken by the Court. The accused persons were enlarged on Court bail. Compliance of [SECTION], [ACT] (hereinafter referred to as '[ACT]) was done.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
After hearing the parties, charge for the offence punishable under [SECTION] [ACT], 170 [ACT], [SECTION] and [SECTION] [ACT] was framed against accused [ENTITY]. Charge for the offence punishable under [SECTION] [ACT] & [SECTION] [ACT] was framed against accused [ENTITY]. The charge was read over to them to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 10 witnesses to prove its case against the accused persons.
5. PW1 [ENTITY] is the Vigilance Inspector, Inspector RPF, who had apprehended the accused. He has deposed that on 29.06.2011, he, alongwith investigating Inspector [ENTITY], was present at Tilak Bridge, Railway Station for routine checking. At about 10:00 a.m, one EMU train had come from Ghaziabad and halted at Tilak Bridge Station. Accused [ENTITY] was trying to board the ladies coach of the abovesaid train. On this, they made inquiry from him. He stated that he was an RPF Constable and posted at Traffic Accounts Building (TA), Estate Entry Road, near DRM Office, New Delhi. They asked him to show his Icard. His Icard appeared to be doubtful. They FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
further inquired from him as to from where he got issued the Icard. He stated that the same had been issued by one Mr. [ENTITY] working at abovesaid TA building. They took the accused to the TA building. They went to the office of Dy. FA/CAO at TA building where, one Mr. [ENTITY] and [ENTITY] were called in the Chamber of Dy. FA/CAO. Mr. [ENTITY] stated that the Icard was a fake one whereas Mr. [ENTITY] on seeing the Icard stated that the same had been prepared by him. Mr. [ENTITY] had given in writing that the Icard was fake and the same had not been issued by this office and the person apprehended at the Tilak Bridge Station was not the employee of the Indian Railway. He seized the fake Icard vide memo Ex.PW1/A. He also recorded the statement of [ENTITY], which is Ex.PW1/B. He wrote a formal complaint to Dy. FA/CAO for taking action against [ENTITY]. Thereafter, he alongwith Inspector [ENTITY] and [ENTITY] came to GRP New Delhi, where Inspector [ENTITY] gave a written complaint and Icard was handed over to GRP Official. One railway ticket was also recovered from the possession of the accused [ENTITY], which was seized FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
vide memo Ex.PW1/C. The railway ticket is Ex.P1. Accused [ENTITY] was arrested and his personal search was conducted vide memos Ex.PW1/D and Ex.PW1/E respectively.
6. The witness identified the accused persons in the Court. He also identified the recovered fake Icard which is Ex. P2.
7. PW2 [ENTITY], Commercial Inspector, Railway Board is the complainant. He has deposed similar to PW1. He had given a written complaint Ex. PW2/A to the PS GRP NDRS. He has also identified both the accused in the Court.
8. PW3 [ENTITY], Retd. Sr. Account Officer was the Railway employee at the relevant time. He has deposed that in the year 2011, he was posted as Account Officer (Administration) in TA Building. Two Officials of vigilance came at their office alongwith one apprehended person. Those two Vigilance Officials made inquiry, whether the apprehended person was an employee of the office and whether Icard of apprehended person was issued by the office. He checked/verified all FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
the record maintained by Section Officer. On the basis of verification, he had informed those two Vigilance Officials that said [ENTITY] was not an employee the said office and the Icard was not issued by the office. He has identified the said Icard in the Court, which is Ex. P2.
9. Ld. APP crossexamined the witness with the permission of the Court. He has deposed that due to lapse of time he could not identify accused [ENTITY]. He has stated that he had handed over one letter to Inspector [ENTITY], Vigilance Official stating accused [ENTITY] was not the employee of Traffic Account Office and the Icard was not issued by Traffic Account Office and [ENTITY] was the employee of the said office. The letter is Ex.PW3/A.
10. PW4 Retd. SI [ENTITY] was posted as ASI at PS NDRS on 29.06.2011. He is the first IO in the present case. He has deposed that on 29.06.2011, he was on emergency duty from 08:00 p.m to 08:00 a.m. On that day, at about 09:30 p.m., the Duty officer had handed over him a copy of FIR and original rukka for investigation of present case. Accused [ENTITY] was handed over to FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
him by Inspector [ENTITY] and Inspector [ENTITY] of Vigilance, Railway Bhawan. Complainant had also handed over him one forged ID card bearing no. 3669 which is Ex.P2 and informed him that this ID card was recovered from the possession of accused [ENTITY]. Complainant had also handed over him one seizure memo qua the aforesaid ID card which is Ex.PW1/A. He arrested and personally searched accused [ENTITY] vide memos Ex.PW1/D and PW1/E respectively. He had recorded disclosure statement of accused [ENTITY] which is Ex. PW4/A. One railway ticket which is Ex.P1 was also recovered from the possession of accused [ENTITY] and he had pasted that ticket on a paper and seized it vide seizure memo Ex.PW1/C. On 30.06.2011, he had given a notice under [SECTION] [ACT] to the account clerk, Admin Branch, Rail Bhawan, [ENTITY] Entry Road, New Delhi and copy of that notice is Ex.PW4/C. He had also given application for handing over the blank ID cards issued by Northern Railway and copy of that application is Ex.PW 4/C. He had given an application to the aforesaid authority regarding issuance of stamp pad/ stamp and FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
copy of that application is Ex.PW4/D. Concerned authority had handed over him two blank I cards and he seized it vide seizure memo Ex.PW4/E. He has identified the accused when his attention has drawn towards accused [ENTITY].
11. Ld. APP asked a leading question from the witness with the permission of the Court. Witness admitted that he had prepared the pointing out memo upon pointing of accused [ENTITY] which is Ex.PW4/F.
12. PW5 [ENTITY] is the police official who had participated in the investigation with IO / ASI [ENTITY]. He has deposed that on 12.10.2011, he alongwith IO had reached at Tis Hazari Court where accused [ENTITY] had surrendered in the Court. IO had moved an application for interrogation of accused [ENTITY]. In the interrogation, accused had not cooperated. Therafter, IO had moved an application for arrest of accused [ENTITY] and after taking permission from the concerned Court that accused was arrested vide memo Ex.PW5/A bearing my signature FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
at point A. Accused was taken on one day PC. Thereafter, accused was taken to LHMC Hospital where he was medically examined. Thereafter, they alongwith accused [ENTITY] had reached at state Entry road, Railway office outside NDRS (Paharganj Side). IO had made inquiry as accused [ENTITY] was posted there in Account Department. The officer in the Account Department had informed them that the chair and table of accused [ENTITY] were alloted to some another officer. Thereafter, they alongwith accused had reached at PS NDRS. In the police station, IO had interrogated accused [ENTITY] and recorded his disclosure statement which is Ex. PW5/B.
13. Inadvertently no witness was given number PW6. PW7 [ENTITY] is the police official who has deposed that he had deposited one sealed envelope and and road certificate in FSL Rohini vide RC no.67/21/12 on 28.08.2012. The copy of the road certificate is Ex.PW7/X. He had obtained a receiving from FSL Rohini and deposited to the MHC(M). The said receiving is Ex.PW7/X1.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
14. PW8 ASI [ENTITY] was the MHC(M) at PS NDRS. He has deposed that 28.08.2012 he had handed over the specimen seal impression of the Office Account Officer, New Delhi Railway Station and specimen signatures of the accused no. 2 alongwith FSL Form to PW
15. PW9 Retd. SI [ENTITY] is the second IO in the present case. He has deposed that the investigation was marked to him on 06.07.2011. Accused no. 1 had already been arrested and accused no. 2 was wanted in the present case. He had made efforts to arrest accused no. 2 but accused no. 2 was absent from his office duty. On 12.10.2011, accused no. 2 had surrendered in court.
16. PW10 Sh. [ENTITY] is the Sr. Section Officer, Account, TA Office. He has proved the report of Sh. [ENTITY], Sr. AFA/ADMN/legal whcih is Ex. PW10/A (colly. 14 pages).
17. The witnesses were cross examined by the Ld. counsels for both the accused persons. The accused persons admitted, under [SECTION] [ACT], registration of DD no. 21A dated 29.06.2011 which is Ex. A1, and FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
registration of FIR no. 148/11 PS NDRS which is Ex. A2.
18. The prosecution evidence was closed. The accused were examined U/[SECTION] [ACT] r/w [SECTION] [ACT]. The accused persons denied all the incriminating evidence. They have stated that they were falsely implicated in the present case.
19. The accused persons have not lead any defence evidence in the present case. Therefore, the matter was fixed for final arguments.
20. Ld. APP for the [ENTITY] has argued that the prosecution has proved its case beyond reasonable doubts. The identity of the accused persons has been established beyond reasonable doubts by the testimonies of PW1, PW 2 and PW3. It has been proved that accused no.1 had entered into a criminal conspiracy with accused no. 2 and in pursuance thereof, had forged an Icard showing accused no. 1 as an employee of the Northern Railway. Hence, the offences under [SECTION], [SECTION] and [SECTION] [ACT] are made out against the accused persons. Accused no. 1 had used the forged Icard while travelling in the ladies coach of EMU on 29.06.2011. On being FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
apprehended by PW1 and PW2, he had projected himself to an RPF Constable posted at Traffics Accounts building (TA), Estate Entry Road, near DRM Office, New Delhi. He has argued that the said facts have been firmly established in the testimony of PW1 and have been corroborated by PW2 and PW3. Moreover, accused no. 1 has not explained as to how he was in possession of the aforesaid Icard, bearing his name and photograph, at the time without being in the employment of Northern Railway. Hence, the offence under [SECTION] [ACT] has been made out against Accused no. 1. There is no motive of implication of the accused no. 1 in the present case by the prosecution witnesses who were previously unknown to the accused no. 1. The chain of evidence against both the accused persons is complete and the prosecution has discharged its burden of proof by proving the case beyond reasonable doubt. Hence, both the accused should be convicted for the offences they have been charged with.
21. Ld. Defence counsels, on the other hand, have argued that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
There are various contradictions in the testimonies of the witnesses of the prosecution.
22. Ld. Counsel for accused no. 1 has argued that accused is innocent and that he was falsely implicated by the police officials. It has been argued that there is no evidence against accused to show his involvement in any crime. There is no public witness of the alleged recovery of the Icard from the said accused even though he was allegedly apprehended at the railway station where there were many public persons. Non joining of a public witness at the time of alleged apprehension and recovery of Icard creates reasonable doubts on the case of the prosecution. There is no explanation as to why no public witness was joined at the said time. Further there is no evidence on record to show that accused no.1 was ever in contact with accused no. 2. there is no evidence of a criminal conspiracy between the accused persons and forgery of any Icard by them. PW3 had not identified the accused in Court. There is no explanation as to why the accused was holding a ticket. It creates reasonable doubts on the case FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
of the prosecution. Hence, it is prayed that the accused maybe acquitted.
23. Learned Counsel for accused no. 2 has argued that accused is innocent and he has been falsely implicated at the instance of the complainant. It has been argued that no money was ever paid to him by accused no. 1 or any other person at any point of time. The accused had not forged any Icard as neither the stamp nor the signature on the said Icard belongs to the accused. The FSL Report filed by the prosecution is consistent with the innocence and noninvolvement of accused no. 2 in the present case. He did not have any knowledge about the Icard in question. Nothing was recovered from his possession. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
24. I have heard the rival submissions and carefully perused the material available on record.
25. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
26. The accused no. 1 has been charged for committing offences punishable under [SECTION] [ACT], [SECTION] [ACT], [SECTION] [ACT] and 170 [ACT] and accused no. 2 has been charged for committing offences punishable under [SECTION] [ACT] and [SECTION] [ACT].
27. [SECTION] [ACT] provides punishment for offence of criminal conspiracy. [SECTION] [ACT] defines criminal conspiracy. For the purpose of proving criminal conspiracy, the prosecution must establish the following:
1. that the accused agreed to do or caused to be done an act;
2. that such act was illegal or was to be done by illegal means; and FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
3. that some overt act was done by one of the accused in pursuance of the agreement.
28. The Hon'ble Apex Court in Baliya Vs. [ENTITY] of Madhya Pradesh, 2012(9) SCC 696 has held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
29. Similarly the Hon'ble Apex Court, again in [PRECEDENT] has held that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
30. In the present case, there is no evidence on record which shows that the accused persons were known to each other prior to 29.06.2011 (date of the incident). There is no evidence of any meeting between the accused persons or any agreement between them for forging the I card. The allegations by PW1 that accused no. 2 had taken money from accused no. 1 to forge an Icard showing accused no. 1 as employee of the Railways, remain bald and have not been substantiated by any evidence to that effect.
31. PW1 and PW2 have stated that the accused no. 1 had told them that the Icard in question, recovered from his possession, was issued to him by accused no. 2. However, it has neither been proved that accused no. 2 had issued the Icard to accused no. 1 nor the fact that I card has been prepared by accused no. 2. Confession of an accused is a very weak piece of evidence. The said FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
confession cannot become the basis of conviction of a co accused. Some corroborative evidence is required to rely upon such a confession. In the present case, however, there is no such corroborative evidence. The alleged disclosure statements of the accused persons cannot be proved against any of them as they are hit by [SECTION], the [ACT]. The report of the FSL also does not support the case of the prosecution.
32. No doubt, PW1 & PW2 have stated in their examination in chief that accused [ENTITY] had told them that he had prepared the said ID card. However, perusal of the record would show that in their statements given to the IO under [SECTION] [ACT] there is no averment that accused [ENTITY] had told them so. The witnesses were duly confronted by the defence counsel with their statements during cross examination. The witnesses had admitted in their cross examination that no such fact is mentioned in their statements recorded by the IO. I am of the opinion that these statements of the witnesses as abovementioned are material improvements and therefore it would not be safe FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
to rely upon the said parts of the testimonies to convict the accused.
33. In the light of the discussion hereinabove, I hold that the offence of criminal conspiracy remains not proved against any of the accused persons. They are, therefore, acquitted of offence punishable under [SECTION] [ACT].
34. The accused persons have also charged with offence punishable under [SECTION] [ACT]. Before discussing further, it would be relevant to discuss the law relating to forgery. [SECTION] [ACT] defines forgery while [SECTION] [ACT] defines making a false document. The Sections read as under : "463. Forgery Whoever 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.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
"464. Making a false document. A person is said to make a false document or false electronic record First. Who dishonestly or fraudulently "(a) makes, signs, seals or executes a document or part of a document;
"(b) makes or transmits any electronic record or part of any electronic record;
"(c) affixes any electronic signature on any electronic record;
"(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly. Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
"Explanation 1. A man's signature of his own name may amount to forgery.
"[SECTION]. The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. "Explanation 3. For the purposes of this section, the expression "affixing electronic signature"
shall have the meaning assigned to it in clause
(d) of subsection (1) of section 2 of the [ACT]."
35. Hon'ble Supreme Court of India in [PRECEDENT], decided on 11 May, 2018, has discussed the law relating to forgery. It has been held as under : "19. A close scrutiny of the aforesaid provisions makes it clear that, [SECTION] defines the offence of forgery, while [SECTION] substantiates the same by providing an answer as to when a false FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
document could be said to have been made for the purpose of committing an offence of forgery under [SECTION], [ACT]. Therefore, we can safely deduce that [SECTION] defines one of the ingredients of forgery i.e., making of a false document. Further, [SECTION] provides punishment for the commission of the offence of forgery. In order to sustain a conviction under [SECTION], first it has to be proved that forgery was committed under [SECTION], implying that ingredients under [SECTION] should also be satisfied. Therefore unless and untill ingredients under [SECTION] are satisfied a person cannot be convicted under [SECTION] by solely relying on the ingredients of [SECTION], as the offence of forgery would remain incomplete.
"20. The key to unfold the present dispute lies in understanding [SECTION] as given in [SECTION] of [ACT]. As [ENTITY] J., puts it precisely in [PRECEDENT], a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
"21. It is observed in the case [PRECEDENT] and Ors. vs. [ENTITY] of Bihar and Anr., (2009) 8 SCC 751 that "a person is said to have made a `false document', FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
if "(i) he made or executed a document claiming to be someone else or authorised by someone else; or "(ii) he altered or tampered a document; or "(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
"22. In [PRECEDENT] (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security ([SECTION], [ACT]) and using of forged document as genuine ([SECTION], [ACT]). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under [SECTION], [ACT] depends upon creation of a document as defined under [SECTION], [ACT]. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under [SECTION] and [SECTION], [ACT] even if title of property did not vest in the executant.
"23. The Court in [PRECEDENT] (supra) observed that:
"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under [SECTION] of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither [SECTION] of the Code are attracted."
"24. In [PRECEDENT], this Court, after analysing the facts of that case, came to observe as FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
"The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. "The third and final condition of [SECTION] deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
"25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As [SECTION] further clarifies that, for constituting an offence under [SECTION] it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. "26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
on the settled legal position and we find no reason to interfere with the same.
"27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The [ENTITY] of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
probability." (Emphasis supplied)
36. [SECTION] [ACT] provides punishment for forgery for the purpose of cheating. An essential ingredient of the offence under [SECTION] [ACT] is that there should be commission of forgery. In the present case, there is no evidence against accused no. 1 for making/forging the I card in question. Rather, the allegation is that accused no. 2 had forged the said Icard in exchange of money in favour of accused no. 1. Since, there is no evidence against accused no. 1 for making or creating the aforesaid Icard, there is no question of him committing forgery in respect of the same. Consequently , the offence under [SECTION] [ACT] is not proved qua accused no. 1.
37. As regards accused no. 2, the allegation in support of the charge under [SECTION] [ACT] against him is that accused no. 2 had admitted to preparing the aforesaid Icard when the same was shown to him at the office of Dy.FA/CAO on 29.06.2011. The allegation that accused no. 2 had admitted to preparing the said Icard has come in the testimonies of PW1 and PW2. However, the same FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
has not been corroborated by the testimony of PW3 who was present in the said office alongwith PW1, PW2 and accused no. 2 on 29.06.2011. Moreover, as already discussed hereinabove, the factum of the said admission has not been mentioned in the statements of both PW1 and PW2 given by them to the IO under [SECTION] [ACT] Hence, the alleged admission by the accused no. 2 is not proved by the prosecution beyond reasonable doubts.
38. Moreover, the FSL Report filed in support of the said allegation of forgery of Icard by accused no. 2 is negative and therefore, in favour of the accused no. 2. The said report provides the finding that the signature on the aforesaid Icard is not the same as the specimen signatures taken from the accused no. 2. Moreover, even the stamp on the aforesaid Icard does not match with specimen stamp of Account Officer, Admn. N.Rly, TA Office, SE Road of accused no.2 in the present case. Hence, accused no. 2 cannot be said to have forged the Icard and consequently, cannot be said to have committed the offence under 468 [ACT] in the present case. Hence, both the FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
accused persons are acquitted of the offence under [SECTION] [ACT].
39. Accused [ENTITY], i.e., accused no. 1 has also been charged for offence punishable under [SECTION] [ACT]. The Section provides punishment for using a forged document as genuine. It provides as follows:
"[SECTION]. Using as genuine a forged document or electronic record
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."
40. In the present case, as per the testimonies of PW1 and PW2, accused no. 1 was apprehended by them while they were conducting routine checking on 29.06.2011. He had stated that he was an RPF Constable and was posted at Traffic Account Building (TA), Estate Entry Road, Near DRM Office, New Delhi. Thereafter, PW 1 and PW2 had asked accused no.1 to show his Icard, FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
which appeared to be forged. On inquiry from him as to where did he get the said Icard issued, accused no.1 stated that the same had been issued by Mr. [ENTITY], accused no.2 in the present case, working at the abovesaid TA building. PW3 stated in the writing that the Icard was fake and had not been issued by the aforesaid office and that accused no.1 was not an employee of Railways. Thereafter, the aforesaid Icard was seized by PW1 and statement of accused no.1 was recorded by him.
41. The Ld. Counsel for accused no. 1 has challenged the said recovery of the Icard from accused no.
1. He has stated that no public witness were joined for the apprehension of accused no. 1 and the alleged recovery, even though the same was made at a railway station.
42. I have considered the submission. Nonjoining of public witnesses is not always fatal to prosecution case. The Hon'ble High Court of Delhi in Jawahar vs. [ENTITY] (2007) ILR 2 Delhi 146 observed as under: "As far as non association of public witnesses at the time of recovery is concerned, I consider that FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
this is not an infirmity sufficient to throw out the case of the prosecution."
43. Witnesses PW1 & PW2 were on official duty when the accused was apprehended by them. Their testimonies have to be believed by the Court unless some special reason is given by the accused. In the present case, however, no reason or explanation is provided by the accused as to why those witnesses should not be believed. There was no reason, shown by the accused, as to why the accused persons would falsely implicated him in the present case. Thus, it has been duly proved by PW1 and PW2 that accused no. 1 had possessed the said Icard when they had apprehended him on 29.06.2011.
44. It has come in the testimonies of PW1 & PW2 that on seeking explanation, accused no. 1 had told that he was a Constable with RPF. He had also shown an Icard. The said Icard is produced in evidence and marked as Ex.P2. The Icard bears the name and photograph of accused no. 1. It was seized by PW1 vide seizure memo Ex. PW1/A. Accused no. 1 has not given any evidence as to why PW1 would show the recovery of an Icard from FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
him, bearing his name and photograph, apart from as stated by PW1.
45. Such card, like Ex. P2 cannot be prepared on the spot. Such a card is not available in the market easily. The accused did not provide any explanation as to how his photograph was found affixed on the said Icard. There is no evidence of any enmity or dispute between PW1, PW2 and accused no. 1. Hence, it stands proved beyond reasonable doubts that Icard Ex. P2 was seized by the PW1 & PW2 after it was shown by the accused no. 1.
46. Testimony of PW3 has proved that the Icard Ex. P2 is not genuine. It has also been proved that accused no. 1 was not an employee of the Railway. It has also been proved that he had been using the said forged ID card as genuine. Thus, it has been proved beyond reasonable doubts that accused [ENTITY] had knowledge that the Icard was not genuine. Despite that, he projected the same as genuine and used it dishonestly or fraudulently to pose as an RPF Constable. Hence, the ingredients of offence punishable under [SECTION] [ACT] are proved FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
against accused [ENTITY] beyond reasonable doubts and he is convicted for the same.
47. Another charge against accused no. 1 is for offence punishable under [SECTION] [ACT], which provides punishment for personating a public servant. The said Section reads as follows:
"170. Personating a public servant Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under the colour of such office, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
48. As per the testimonies of PW1 and PW2, accused no. 1 was trying to board the ladies coach of one EMU train coming from Ghaziabad at Tilak Bridge Station. At 10 a.m., he was apprehended by them while they were conducting routine checking. On inquiry from accused no.1, accused no.1 stated that he was an RPF Constable FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
and was posted at Traffic Account Building (TA), Estate Entry Road, Near DRM Office, New Delhi. Thereafter, they asked him to show his Icard, which appeared to be forged. As per the testimony of PW3, neither the said Icard was issued by the aforesaid office and nor was the accused no. 1 an employee of the Railways. Hence, it is proved by the testimonies of these three witnesses that accused no. 1 pretended to be a Constable of the RPF knowing that he was not so. However, there is no evidence showing that the accused no. 1 did or attempted to do any act as such Constable. He was apprehended merely boarding the ladies coach and later, a travel ticket was also recovered from him.
49. During his examination under [SECTION] [ACT], the accused no. 1 has denied recovery of any such Icard from his possession. He has stated that he has been falsely implicated in the present case. However, the accused has not led any evidence in support of his averments. During his examination under [SECTION] [ACT], the accused no. 1 has stated that he has been falsely implicated in the present case. However, the FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
accused has not led any evidence in support of his averments.
50. It is settled position of law that statements made during examination under [SECTION] [ACT] are not evidence. They have not been made on oath. They have not been tested on the touchstone of cross examination. Hon'ble High Court of Delhi in [PRECEDENT], decided on 21/09/2010, has discussed the scope of examination of accused under [SECTION], [ACT] It has held as under:
"5. It must be borne in mind that the statement of accused under [SECTION] [ACT] or under [SECTION] [ACT] is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under [SECTION] [ACT] or 313 [ACT] cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful "
FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
51. In the present case also, the statements made by accused no. 1 during his examination can not be presumed to be true. They have not been made on oath. Further they have not been tested on the touchstone of cross examination. There was no opportunity to the opposite party to check the veracity of those statements by cross examining the accused. Hence, they cannot be read in support of the defence of the accused.
52. The law is settled that testimony of an eyewitness should be believed unless there is specific reason on record to disbelieve him. In the present case also, the testimonies of various prosecution witnesses have proved beyond reasonable doubts that accused no. 1 was apprehended with a forged Icard, claiming to be a Constable with the RPF, when he was not an employee of the Railway and which Icard was not issued to him by the concerned authority. Hence, it is proved beyond reasonable doubts that the accused was in possession of the forged Icard knowing the same to be forged and intending that the same shall fraudulently or dishonestly FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
be used as genuine, constituting the offence under [SECTION] [ACT].
53. To constitute an offence under [SECTION] [ACT], two constituents need to be satisfied - first, that the accused pretended to hold a particular office, knowing that he does hold such office and second, that he did or attempted to do any act under the colour of such office in that assumed character. In the present case, even though the first constituent is proved against accused no. 1, the second constituent is not proved. Hence, the offence under [SECTION] is not proved against the accused no. 1.
54. However, the facts proved against accused no. 1 show that he has committed the offence under [SECTION] [ACT]. [SECTION] [ACT] provides punishment for wearing garb or carrying token used by public servant with fraudulent intent. It reads as under:
"171. Wearing garb or carrying token used by public servant with fraudulent intent Whoever,not belonging to a certain class of public servants, wears a garb or carries any token resembling any garb or token used by that class of public servants, with the intention that FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both. "
55. For proving an offence under [SECTION], two ingredients need to be proved - firstly, that the accused was wearing a garb or carrying a token resembling the garb or token used by a class of public servants and secondly, with the intention that it be believed or be likely to be believed that he belongs to that class of public servants. In the case at hand, the accused no. 1 had been apprehended by PW1 and PW2 at Tilak Bridge Station and an Icard, as carried by constables of RPF and issued by Traffic Account Office (TA), Estate Entry Road, Near DRM Office, New Delhi, was recovered from his possession. On inquiry, he also told PW1 and PW2 that he was a Constable with RPF. Hence, not only did the accused carry a token (said Icard) as belongs to RPF Constables in TA Office of Northern Railway, he also FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
intended it to believed that he was an RPF Constable by representing himself to be one to the Inspectors of Ministry of Railway (PW1 and PW2).
56. As per [SECTION] [ACT], when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. In the present case, the accused no. 1 had been charged with [SECTION] [ACT] (major offence). However, the facts proved reduce it to the commission of offence under [SECTION] [ACT] which is a minor offence. Hence, as per [SECTION] [ACT], the accused no. 1 can be convicted under [SECTION] [ACT] in the present case. Since the ingredients of offence under [SECTION] [ACT] are proved against the accused no. 1 in the present case, he is convicted for the same.
57. In the light of the discussion hereinabove, I hold that the prosecution has failed to prove charges of [SECTION] and [SECTION] [ACT] against both the accused persons. Both the accused persons are acquitted qua those offence. However, the prosecution has proved FIR No.148 /2011, PS : NDRS [ENTITY] Vs [ENTITY] & Anr.
the charges under [SECTION] and [SECTION] [ACT] against accsued no. 1 beyond reasonble doubts. Accused no.1 i.e., accused [ENTITY] is therefore found guilty of and convicted for offences punishable under [SECTION] and [SECTION] [ACT].
58. Accused [ENTITY] has already furnished bonds under [SECTION] [ACT] with one surety alongwith photographs and ID Proof. The bonds come in force as per law.
59. Convict [ENTITY] be heard on sentence separately. Copy of the judgment be supplied to the convict free of cost. by [ENTITY] Date:
KUMAR 2019.10.23 16:50:05 +0530 Pronounced in the open Court on ([ENTITY])
this 23rd day of October, 2019. MM08 (Central) Tis Hazari Courts, Delhi.