FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors. IN THE COURT OF MM08 (CENTRAL DISTRICT) TIS HAZARI COURTS COMPLEX, DELHI. Presiding Officer: [ENTITY], DJS. IN THE MATTER OF : [ENTITY] Vs. [ENTITY] & Ors. FIR No. 401/2004 PS : RMD (ODRS) U/s 419/420/468/471/120B [ACT] Date of Institution : 08.12.2004 Date of reserving of order : 06.04.2019 Date of Judgment : 09.05.2019 CNR No. DLCT020002792004 JUDGMENT
1. Serial No. of the case : 292543/2016 2. Name of the Complainant : [ENTITY] 3. Date of incident : During year 200304 4. Name of accused persons : 1. [ENTITY] S/o Sh. [ENTITY], R/o Village PO Kharkari PS Toshhram, District : Bhiwani, Haryana 2. [ENTITY] S/o [ENTITY], R/o H. No. 27 D, TypeII, Railway Colony, Narela, Delhi 3. [ENTITY] D/o [ENTITY], R/o H. No. E338, Sector09, Vijay Nagar, Ghaziabad, Uttar Pradesh FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors. 5. Offence for which chargesheet was filed :419/420/468/471/ 120B [ACT] 6. Offence for which charge has been framed : 420/120B [ACT] 7. Plea of accused : Not guilty 8. Final Order : [ENTITY] Convicted for offence punishable under [SECTION] [ACT]. [ENTITY] Convicted for offence punishable under [SECTION] [ACT]. [ENTITY] Acquitted. 9. Date of Judgment : 09.05.2019 BRIEF REASONS FOR ORDER:
1. Mr. [ENTITY] (since PO), Mr. [ENTITY], Mr. [ENTITY] and Mr. [ENTITY], the accused herein, have been chargesheeted for committing offences punishable under [SECTION] B, [ACT] (hereinafter referred to as "[ACT]").
2. The case of the prosecution is that Sh. [ENTITY], the Section Officer, Central Vigilance Commission, FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
Government of India had made a complaint, in the form of office memorandum, to the Delhi police informing that some fake letters were received by Delhi police pertaining to police verification of some persons. It was informed that the letters on the basis of which the said verification had been conducted were not written by any authority of the commission and that they were fake. Therefore, the police was requested to make inquiry and to conduct investigation. On the basis of said letter, present FIR had been registered. During the course of investigation various witness were examined under [SECTION] [ACT] Raids were conducted. It was found during course of investigation that accused [ENTITY] (Since PO) was the kingpin of a racket to cheat unemployed youths under the garb of providing them Government jobs. Accused [ENTITY] (since PO) alongwith accused [ENTITY], [ENTITY] and [ENTITY] had been running a fake employment racket from a canteen at ODRS. Accused [ENTITY] and [ENTITY] had been working as agents to bring unemployed youths from Haryana for providing employment in Central Vigilance Commission on the post of investigatorIII. Ms. [ENTITY], an attendant at Railway Waiting Hall, ODRS, had FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
been working as agent for bringing candidates from Himachal Pradesh. They had cheated 78 persons under the pretext of providing Government jobs to them. During investigation various forged documents, letters, stamps, seals had been recovered. 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. Compliance of [SECTION], [ACT] (hereinafter referred to as '[ACT]) was done. After hearing the parties, charge for the offence punishable under [SECTION] was framed against accused [ENTITY] (since PO). Charge for the offence punishable under [SECTION] [ACT] was framed against accused [ENTITY], [ENTITY] and [ENTITY]. The charge was read over to them to which they pleaded not guilty and claimed trial.
4. During the course of trial accused [ENTITY] stopped appearing. Therefore vide order dated 21.03.2015, he was declared absconder.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
5. The prosecution has examined as many as 18 witnesses to prove its case against the accused persons.
6. PW1 Sh. [ENTITY], under Secretary Central Vigilance Commission is the complainant. He has deposed that on 06.07.2014 he was posted as Section Officer at the Office of CVC. Various documents were received in their office for verification through Delhi police which are Ex.PW1/A1 to Ex. PW1/A16. No such letter were written by any authority of the commission and they were fake documents. The office memorandum issued by PW1 is Ex. PW1/B. One another letter was also issued from the department which is Ex. PW1/C (OSR).
7. PW2 [ENTITY] is father of one of the victim. He has deposed that in year 2003, he met with accused [ENTITY] regarding the employment of his son [ENTITY]. Accused [ENTITY] introduced him with accused [ENTITY] and [ENTITY] (Since PO). He was told that his son would be given a job in the Central Vigilance Commission at the post of Investigator. Accused [ENTITY] introduced himself as PA to Legal Adviser in Home Ministry. They had assured that his son would be given employment at Central Vigilance Commission. He was told that Rs.1.5 lacs were to be paid FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
for the said job. He met with all of the accused persons at Old Delhi Railway Station Canteen. He handed over Rs.50,000/ to accused [ENTITY] in the presence of accused [ENTITY] which was handed over to accused [ENTITY] (Since PO). Accused [ENTITY] and [ENTITY] ( Since PO) had given form to his son and took signatures of [ENTITY]. Police verification was conducted. He handed over the remaining balance after police verification. All the accused persons had handed over a fake appointment letter to his son which is Ex.PW2/A. The same was seized by the police vide memo Ex. PW2/B. Accused [ENTITY] and [ENTITY] were arrested vide memo Ex. PW2/C and Ex.PW2/D. Certain documents were recovered from accused [ENTITY] (since PO) which were seized vide memo Ex.PW2/E. The documents are Ex.PW 1/A1 to Ex. PW1/A16.
8. PW3 Sh. [ENTITY] is one of the victim. He has deposed that his uncle [ENTITY] told him that accused [ENTITY] who was working as Railway Crossing opener and closure would help him in getting Job in Central Vigilance Commission through accused [ENTITY] and [ENTITY] (PO). Accused [ENTITY] FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
[ENTITY] took him and his uncle to waiting hall canteen, ODRS and they met with accused [ENTITY] working as waiter in the said canteen. Accused [ENTITY] introduced them with accused [ENTITY] (PO) and introduced as a PA in Ministry of Home Affairs. Accused [ENTITY] (PO) demanded Rs.1.5 lacs for the said purpose. Accused [ENTITY] and [ENTITY] had also assured him that accused [ENTITY] was a PA in Home Ministry. After sometime accused [ENTITY], [ENTITY] and [ENTITY] (PO) met him in the canteen of ODRS. His photographs were taken and some documents were got signed from him. H had paid Rs.50,000/ to accused [ENTITY] in presence of accused [ENTITY] and [ENTITY] (PO). One police official had come there and done his police verification. Thereafter, accused [ENTITY] (PO) had given him one appointment letter and guidelines of ministry. His uncle had thereafter handed over Rs.1,04,450/ to accused [ENTITY] (since PO) in presence of accused [ENTITY] and [ENTITY]. After some time, he was sent to Mussorrie for training where he stayed for 15 days. Thereafter, [ENTITY] could not be found. He had signed the seizure memo of the documents FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
which is Ex PW3/A. His appointment letter is Ex.PW3/B. Letter dated 23.12.2003 in the name of [ENTITY] is Ex. PW3/C, Card in the name of [ENTITY] is Ex. PW3/D
9. PW4 [ENTITY] is the uncle of PW3 [ENTITY]. He has deposed similar to PW3. He has also deposed that in a meeting with him, accused [ENTITY] told him that he could arrange the job for [ENTITY] in Central Vigilance Commission if he paid Rs.1,50,000/. Thereafter, accused [ENTITY] had introduced them to accused [ENTITY] and accused [ENTITY] (since PO) at ODRS. They all had assured them for a job if they paid Rs.1.5 lacs. After sometime they had paid Rs.50,000/ to accused [ENTITY] at ODRS. In December, 2003 they had again paid Rs.1,00,000/ to accused [ENTITY] at ODRS.
10. PW5 [ENTITY] is one of the victim. He would depose that he is brother of accused [ENTITY]. He had come to Delhi to live with his sister [ENTITY]. Accused [ENTITY] (Since PO) made him to believe that he would arrange a job for him in lieu of Rs. 1.5 lacs. However, he did not pay any money. Later on he was given an Icard by [ENTITY] (since PO) which is Ex.PW5/A. He was also given an appointment FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
letter dated 23.12.2003 which is Ex.PW5/B. He was also sent to the Hostel at Massorrie and no training was provided. The police had seized the documents vide memo Ex. PW5/C.
11. The witness was also cross examined by Ld. [ENTITY]. However, he denied all the suggestions.
12. PW6 [ENTITY] is one of the victim. He has deposed that his father Sh. [ENTITY] was made to believe that the witness might get a job in vigilance department. However, he did not have any personal dealings in the matter. The dealings were done by his father. He was issued one Icard which is Ex.PW6/A.
13. PW7 [ENTITY] is rubber stamp maker. He has deposed that in March 2003, he had prepared some stamps to accused [ENTITY] (since PO) on his producing the letter Ex. PW7/A. However, when the seized stamps were produced in the Court and shown to him, he stated that those stamps were not prepared by him. The stamps are Ex. P1 to Ex. P5.
14. PW8 [ENTITY] is one of the victim. He has deposed that he alongwith his uncle [ENTITY] had met with accused [ENTITY] at Canteen of ODRS. He had introduced them with accused [ENTITY] FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
(Since PO) and told that [ENTITY] (Since PO) could arrange a job for him as he was working as PA in Home Ministry. Accused [ENTITY] demanded Rs.1.5 lacs for the said purpose. After two days, he alongwith his uncle [ENTITY], and his friend [ENTITY] had handed over Rs.1,00,000/ at Canteen of ODRS in the presence of accused [ENTITY]. Some forms with photographs were also handed over. After some time some police official had conducted verification. One appointment letter was given to him and his friend [ENTITY] by accused [ENTITY] and thereafter they paid Rs.1,90,000/ to accused [ENTITY], [ENTITY] and [ENTITY] (Since PO). Thereafter, they had also stayed in a Hotel at Jaipur for 15 days for some training, however, no training was provided.
15. PW9 WHC [ENTITY] is the police official who had participated in the investigation with the IO. She has deposed that on 09.10.2004, she alongwith SI [ENTITY] and other police officials had reached at H. No. 338, Vijay Nagar, Ghaziabad. At the instance of accused [ENTITY] certain documents were recovered. Thereafter, accused [ENTITY] was arrested. She had conducted her personal search vide memo Ex. PW9/A.
16. PW10 [ENTITY] is the Duty Officer. He FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
has proved the FIR as Ex.PW10/A (OSR).
17. PW11 Inspector [ENTITY] was one of the IO. He has deposed on 07.08.2004, investigation of this case was marked to him. However, on next day the investigation was marked to SI [ENTITY].
18. PW12 [ENTITY] is one of the victim. He has deposed that in the year 2003, he had met with accused [ENTITY] (Since PO) through accused [ENTITY]. At ODRS accused [ENTITY] (Since PO) had obtained his signatures on some application form and took his photographs. After 11.5 months he received an appointment letter through accused [ENTITY] for the Post of LDC. Accused [ENTITY] (Since PO) had demanded Rs.1,50,000/ for appointment. However, he returned the appointment letter as some doubts had come in his mind. He denied making any payment to the accused.
19. PW13 [ENTITY] is one of the victim. He has deposed that his uncle [ENTITY] had informed him that he met with one person named [ENTITY] who could get help in getting Job. Thereafter, he alongwith brother namely [ENTITY] met with accused [ENTITY] and [ENTITY] who informed that [ENTITY] (since PO) FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
belonged to government office and he could help in getting job. Accused [ENTITY] (since PO) told him that he was working at CVC department and he could help them in getting job in Rs.1,50,000/. They gave Rs. 1 lakh as advance token for getting job for himself and his brother namely [ENTITY]. [ENTITY] (since PO) had handed over one call letter to him and another call letter to his brother. Thereafter, police verification was done. After police verification he handed over Rs.1,90,000/ to accused [ENTITY]. [ENTITY] (since PO) had asked them to report at Youth Affairs, Jaipur. They remained for 15 days at Youth Affairs, Jaipur. Thereafter, accused [ENTITY] informed them to come back as the said job was forged. He met with accused [ENTITY] and he assured him that he would trace out [ENTITY] (since PO).
20. PW14 [ENTITY] has deposed that on 12.10.2004, he was working as MHC(M) PS ODRS. On that day, SI [ENTITY] handed over him two pullanda sealed with the seal of AK. He made entry in register no.19 at Sr. No. 2136, Photocopy of the same is Ex. PW14/A (OSR). On 20.04.2005, Ct. [ENTITY] took the pullandas to FSL. On 01.07.2005, Ct. [ENTITY] FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
brought abovementioned pullandas and one sealed envelope regarding result and he made entry in this regard.
21. PW15 ASI [ENTITY] is the police official who had joined the investigation. He has deposed that on 09.10.2004, a raiding team was constituted by SI [ENTITY] including the witness, Ct.[ENTITY], Ct. [ENTITY] and [ENTITY]. They reached at canteen ODRS. [ENTITY] pointed out towards accused [ENTITY]. [ENTITY] also informed them that accused [ENTITY] ( PO) would also come. At about 12:30 p.m., accused [ENTITY] (since PO) came with a bag. They apprehended [ENTITY] (since PO). On checking the bag, several documents were found. The said documents were seized vide memo Ex.PW2/E. Thereafter, [ENTITY] (since PO) and accused [ENTITY] were arrested and their personal search were conducted. They had disclosed the name of [ENTITY]. Thereafter, Ct. [ENTITY] was also included in the raiding party. At instance of accused [ENTITY] and [ENTITY], accused [ENTITY] was apprehended from Ghaziabad and some fake documents were recovered which were seized vide seizure memo Ex.PW15/A. They disclosed about the involvement FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
of accused [ENTITY]. Thereafter, they left for Jind Haryana. Accused [ENTITY] was apprehended from Railway quarters, Jind Haryana. He was arrested. During police custody remand of accused [ENTITY], they reached at Abrol Nagar, Pathankot, Punjab. Five rubber stamps were recovered at the instance of accused [ENTITY] (since PO) which was seized vide memo Ex. PW15/B & Ex. PW15/C. Accused [ENTITY] (since PO) had also disclosed about [ENTITY] who had prepared those rubber stamps. They reached at her house of [ENTITY] who produced a letter on the basis of which he had prepared the stamps. The letter was seized vide memo Ex.PW15/D. The IO had taken his signatures on sample seal on various papers to send them to FSL and the same are Ex. PW15/E.
22. PW16 ASI [ENTITY] is the police official who was part of the raiding team. He has deposed similar to PW15. He has proved the personal search memo of accused [ENTITY] which is Ex.PW16/A. He has also proved the arrest memo of accused [ENTITY] which is Ex.PW 16/B, arrest memo of accused [ENTITY] which is Ex. PW16/C. He has also deposed that accused [ENTITY], [ENTITY] and [ENTITY] had made FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
disclosure statements in his present which are Ex. PW 16/D, Ex PW16/E & Ex. PW16/F.
23. PW17 [ENTITY] is a witness who was examined as a victim. He would state that he did not know anything about the present case. He was cross examined by ld [ENTITY]. However, he denied all the suggestions. He, however admitted his signatures on a seizure memo which is Ex.PW17/A.
24. PW18 Inspector [ENTITY] is the IO. He has deposed that on 08.10.2014, he was posted as SI at PS :
ODRS. On that day, investigation of the present case was marked to him by the SHO, PS : ODRS. The case was registered by CVC on the allegations that some duly verified antecedents of aspiring candidates had been received in their office regarding which they had not made any recruitment. Moreover, initial inquiry was made by them and they found that the matter related to ODRS and accordingly complaint was lodged by them through proper channel which was received in the PS : ODRS. During course of investigation, he contacted one of the aspiring candidate who had been cheated namely [ENTITY]. He arrived at the PS and produced him some documents regarding appointment in CVC in the name of [ENTITY] as FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
InvestigatorIII. The documents were seized by him vide seizure memo Ex. PW2/B. [ENTITY] had told him that he had met with accused [ENTITY] at Railway Station Canteen and had promised him to get a job in CVC. Accordingly, he prepared a raiding party consisting of Ct. [ENTITY], Ct. [ENTITY] and [ENTITY] and conducted a raid at Canteen located at first floor of the railway premises. At the instance/identification by [ENTITY], he apprehended two persons namely [ENTITY] and [ENTITY] (who was the canteen manager) from the Railway Canteen. On search of bag of [ENTITY] various incriminating documents relating to CVC appointment letters were found and the same were seized vide seizure memo Ex. PW2/E. Accused [ENTITY] was arrested vide arrest memo Ex. PW2/D. Personal search of the accused was conducted vide memo Ex. PW18/A. Thereafter the accused was interrogated and he disclosed that he was running a fake employment racket in which the railway employees namely [ENTITY], [ENTITY] and one [ENTITY] were helping him, who were given the task of bringing the proposed aspiring candidates to him. The disclosure statement of accused is Ex. PW16/E. Thereafter, the accused [ENTITY] was also arrested vide arrest FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
memo Ex. PW 2/C. He also prepared the personal search memo of accused [ENTITY] which is Ex. PW16/A. His disclosure was prepared by him vide memo Ex. PW16/D. Thereafter the police party alongwith [ENTITY] went to Jind Haryana and had identified the house of [ENTITY], upon which a pointing out memo was prepared vide memo Ex. PW18/C, from where he was arrested vide memo Ex. PW16/C and his personal search was conducted vide memo Ex. PW18/B. His disclosure statement was also recorded which is Ex. PW16/F. Thereafter the police party came back at PS alongwith the arrested accused persons. At the disclosure and identification by accused [ENTITY], he prepared the pointing out memo Ex.PW18/D and she was arrested vide memo Ex. PW16/B. Personal search of the accused was also conducted vide memo PW7/A. He also made a search in the house of accused [ENTITY] and found some photocopies of the documents related to CVC appointment. He seized all the photocopies documents vide seizure memo Ex. PW15/A. Thereafter, PC remand of accused [ENTITY] was obtained and he was taken to R.S.Pura, Punjab from where search of his residence some forged rubber stamps were recovered at his instance. Thereafter, he seized all the FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
stamps vide seizure memo Ex. PW15/B. During interrogation the source of the stamps vendor was verified and it was found that the vendor had prepared the stamps on the basis of genuine documents submitted by [ENTITY]. During investigation other victims namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc also came forward and had produced fake documents given by the accused [ENTITY]. He recorded their statements under [SECTION] [ACT] Thereafter the recovered stamps, specimen signatures of [ENTITY] and the documents seized from various candidates were sent to FSL and the result of the same was placed on the record. After investigation, he filed the chargesheeted in the Court.
25. The witnesses were cross examined. 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 would state that they were falsely implicated in the present case. Accused [ENTITY] would state that he had met with [ENTITY] through [ENTITY]. He did not have any knowledge about the transaction between the parties. He had not received any money. He was the victim.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
Accused [ENTITY] would state that he was a victim. [ENTITY] had deceived them. He had paid Rs.25,000/ to [ENTITY] for the job of his son. He did not provide any job to his son. [ENTITY] used to come at the Tea shop run by him at ODRS to drink tea. During those meetings he had said that he would provide job to his son. However, even after taking money, he did not provide any job to him. [ENTITY] used to meet various persons at the Tea shop. He does not know what dealings were going on between them. Accused [ENTITY] would state that she was working as Attendant at Retiring Room, ODRS. Her brother [ENTITY] and her nephew [ENTITY] used to come there to meet her. During such visits, they might have met with [ENTITY]. However, she did not have any knowledge of any dealings between them.
26. The accused persons did not lead any defence evidence. Therefore, the matter was fixed for final arguments.
27. Ld. [ENTITY] for the [ENTITY] would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused persons has been established beyond reasonable doubts. The public witnesses have proved beyond reasonable doubts that the accused persons FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
had entered into criminal conspiracy and they had cheated and deceived them by taking money under the pretext of providing them government job. Hence, the prosecution has proved all the ingredients of the offences for which the accused are charged with. Hence, it is prayed, the accused may be convicted.
28. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused persons were falsely implicated. They are the victims. Accused [ENTITY] (Since PO) was the real master mind who had cheated the public persons. He used to come at ODRS where the accused persons had been working. He had introduced himself as an Officer in the Central Vigilance Commission. The accused persons did not know anything about his dealings with the public persons. They only saw him dealing with various public persons at the ODRS. However, none of the accused had any relationship with accused [ENTITY]. None of the witness is able to prove anything against any of the accused. Hence, it is prayed that the accused persons may be acquitted.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
29. I have heard the rival submissions and carefully perused the material available on record.
30. 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 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.
31. The accused persons have been charged for committing offence punishable under [SECTION] [ACT].
32. [SECTION], [ACT] provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute offence under [SECTION] [ACT], the prosecution has to establish that the accused had deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victims on the basis which the complainant / victims part with his / their property. Intention must be dishonest and there must also be mens rea.
33. [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
3. that some overt act was done by one of the accused in pursuance of the agreement.
34. 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 FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
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.
35. 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 FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
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 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.
36. In the present case, it has been alleged by the prosecution that the accused persons had entered into a criminal conspiracy with accused [ENTITY] (Since PO) to cheat general public by deceiving them to provide government job in lieu of money. In furtherance of the said criminal conspiracy they had taken money from various public persons. However, no job was provided.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
Thus, they had caused wrongful loss to public persons and wrongful gain to themselves.
37. In the present case, as the record would reveal, the prosecution has examined various public witnesses to prove its case against the accused persons. PW2 [ENTITY] was examined as a witness who had paid money to accused [ENTITY], [ENTITY] and [ENTITY] for the job of his son. However, this witness was not crossexamined. Later on, he had died and therefore his crossexamination could not be completed. Therefore, it would not be safe to rely upon the testimony of PW2.
38. There are other public witnesses also. PW3 Sh. [ENTITY] has deposed that accused [ENTITY] had assured him that he would help him in getting a government job in CVC through accused [ENTITY] and [ENTITY]. Accused [ENTITY] had taken him and his uncle PW4 [ENTITY] at ODRS waiting hall canteen and introduced them with [ENTITY]. They had introduced the witnesses with [ENTITY] (Since PO). An amount of Rs.1.5 lacs was demanded by accused [ENTITY] (Since PO) for providing the job. The witness PW3 has specifically stated that on second visit accused [ENTITY] FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
[ENTITY] had told him that he had to pay Rs.50,000/ with the application and remaining amount of Rs.1,00,000/ would be taken after handing over of appointment letter and police verification. The witness has also said that he had paid Rs.50,000/ to accused [ENTITY] in presence of accused [ENTITY] and [ENTITY] (Since PO). The witness has also stated that the remaining amount of Rs.1,04,450/ was paid to accused [ENTITY] in the presence of accused [ENTITY] and [ENTITY].
39. PW4 [ENTITY] has also corroborated the testimony of PW3. He has also deposed that accused [ENTITY] who was known to him had said that he would arrange a job for his nephew if he would pay Rs.1,50,000/. The witness has also corroborated the testimony of PW3 that accused [ENTITY] had introduced them to accused [ENTITY] and [ENTITY] (Since PO). The witness has also corroborated the testimony of PW3 to the effect that accused [ENTITY] and [ENTITY] had gave them confidence that accused [ENTITY] (Since PO) would arrange the job if the money was paid. He also corroborated the fact of payment of money.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
40. The witnesses were crossexamined. In his crossexamination, witness PW3 would state that he had handed over the money to accused [ENTITY] in the presence of accused [ENTITY] and [ENTITY]. PW4 admitted the suggestion given to him that he was not cheated by accused [ENTITY] and [ENTITY]. However, the witnesses were never confronted with their statements made during examination in chief that they were introduced with accused [ENTITY] (since PO) by accused [ENTITY] and [ENTITY] and that they had assured them to provide a job in lieu of money of Rs.1,50,000/.
41. Similarly, PW8 [ENTITY] and PW13 [ENTITY] have also deposed that they had met with accused [ENTITY] and [ENTITY] who had introduced them to accused [ENTITY] (Since PO). PW8 has specifically stated that accused [ENTITY] had told him that accused [ENTITY] (Since PO) was known to him that he could arrange a job for him in lieu of payment of money. The testimonies of these two witnesses have also proved that accused [ENTITY] had introduced them with accused [ENTITY] FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
(since PO) with the assurance that they would get a government job if they paid money as demanded.
42. Ld. counsel for the accused would argue that the witnesses have categorically stated in their cross examinations that they had never paid any money directly to accused [ENTITY] or [ENTITY]. Therefore, it has been proved that the accused persons had not obtained any wrongful gain to themselves. Therefore, they may not be convicted.
43. I have considered the submissions. No doubt, none of the witness has stated that any money was received directly by accused [ENTITY] and/or [ENTITY]. However, this is not the requirement of law for the offence punishable under [SECTION] [ACT]. The testimonies of the abovementioned witnesses have proved beyond reasonable doubts that accused [ENTITY] had told witnesses PW3, PW4, PW8 & PW13 that accused [ENTITY] (Since PO) could arrange a government job for PW3, PW8 & PW13 if they paid money to the accused (Since PO) as mentioned in their testimonies. It has also been proved that accused [ENTITY] had not only assured them as abovementioned, he had, in fact, FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
fixed a meeting between the witnesses and accused [ENTITY] (Since PO). Further, testimonies of PW3 and PW 4 have also proved beyond reasonable doubts that accused [ENTITY] was also present during those meetings and that he had also assured them for the job in lieu of money as abovementioned. It is on record that accused [ENTITY] (Since PO) was not a government officer as projected by the accused persons. It is also on record that under the assurance given by the accused persons, various public persons had handed over money to accused [ENTITY] (Since PO). It has also been proved on record that no job was provided to any of such person after taking money. In any case, a promise to provide a government job after taking money, in itself, is an offence. Therefore, the accused persons must have been aware of the consequences of their promises as mentioned herein above. All these facts and circumstances proved by the prosecution are sufficient to prove, beyond reasonable doubts, that there was a criminal conspiracy between accused [ENTITY], [ENTITY] and [ENTITY] (Since PO) to do an illegal act. Further, it has also been proved beyond reasonable doubts that the accused persons, in pursuance of such criminal conspiracy, had FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
assured the public persons to provide government jobs, if money was paid. It has also been proved that the witnesses had been deceived and under such deception they had paid money as mentioned hereinabove. The facts and circumstances as proved by the prosecution are also sufficient to prove beyond reasonable doubts that the accused persons had dishonest or fraudulent intention to deceive PW3, PW4, PW8 & PW13 and to induce them to deliver money to accused [ENTITY] (Since PO).
44. During their examinations under [SECTION] [ACT], the accused would state that they were falsely implicated and that they were not aware of any dealings between the witnesses and accused [ENTITY] (Since PO). However, no such suggestions were given to any of the witnesses during their cross examinations. Further, none of the accused has led any evidence to the effect that they were not aware of any dealings between accused [ENTITY] (Since PO) and the witnesses. 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 FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
crossexamination. 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 "
45. In the present case also, the statements made by accused [ENTITY] and [ENTITY] during their examinations under [SECTION] [ACT], can not be presumed to be true. The law is settled that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him. In Abdul Sayeed vs [ENTITY] of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
46. In the present case also, the testimonies of various prosecution witnesses have proved beyond reasonable doubts that accused [ENTITY] and [ENTITY] had assured PW3, PW8 & PW13 to provide a government job on payment of money which was an illegal act. The facts and circumstances proved by the prosecution are sufficient to establish beyond reasonable doubts that there was a criminal conspiracy between accused [ENTITY], [ENTITY] and [ENTITY] (Since PO) to do an illegal act of deceiving public persons under the pretext of providing government job after taking money from them. It has also been proved beyond reasonable doubts that PW3, PW4, PW8 and PW13 had been deceived and under such deception they had paid money FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
as mentioned hereinabove. Even if no money was received by accused [ENTITY] and [ENTITY], they can not avoid their liablities under the law as they were party to the criminal conspriacy as discussed hereinabove. Further, they had also done overt act by assuring the public persons that accused [ENTITY] (Since PO) would provide them government job if money was paid to them. They had also fixed meetings with accused [ENTITY] (Since PO).
47. Now, I come to the case against accused [ENTITY]. There are two witnesses examined by the prosecution in relation to the allegations made against accused [ENTITY]. PW5 [ENTITY] is the brother of accused [ENTITY]. The witness was declared hostile by the proseuction. The witness has stated that he had met with accused [ENTITY] (Since PO) at ODRS duriing his visit to meet his sister. In his crossexamination by Ld.[ENTITY], he denied the suggestion that he was introcued to [ENTITY] (Since PO) by accused [ENTITY]. He also denied the suggestion of making payment to [ENTITY] (Since PO). Thus, the testmony of PW5 is not able to prove beyond reasonable doubts that accused [ENTITY] was also part of the conspiracy.
FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
48. Prosecution has also examined PW12 [ENTITY] to prove the charge against accused [ENTITY]. PW12 is nephew of accused [ENTITY]. He has also denied making any payment to accused [ENTITY]. His statement is also not able to prove beyond reasonable doubts that the accused [ENTITY] had told him that accused [ENTITY] (Since PO) would arrange a job for him. He has only stated that he had met with accused [ENTITY] (Since PO) at the instance of his [ENTITY], accused [ENTITY]. His testimony, even if read entirely, is not able to prove beyond reasonable doubts that the accused [ENTITY] was aware about the conspiracy of false assurance of providing job after taking money as discussed hereinabove. Therefore, she is entitled to the benefit of reasonable doubts. In any case, both the witnesses are family members of accused [ENTITY]. Therefore, she has shown, on the preponderance of probability, that she was not part of the conspiracy as alleged.
49. In the light of the discussion hereinabove, I hold that the prosecution has failed to prove any charge against accused [ENTITY] beyond reasonable doubts. She is therefore acquitted. However, the prosecution has proved FIR No.401 /2004, [PRECEDENT] [ENTITY] Vs [ENTITY] & Ors.
the ingredients of offence punishable under [SECTION] B [ACT] against accused [ENTITY] and [ENTITY] beyond reasonable doubts. Therefore, accused [ENTITY] and [ENTITY] are found guilty and they are accordingly convicted for the offence punishable under [SECTION] [ACT].
50. Accused [ENTITY] has already furnished bond under [SECTION] [ACT] with one surety alongwith photographs and ID Proof. The bonds come in force as per law.
51. Convict [ENTITY] and [ENTITY] be heard on sentence separately. Copy be give dasti.
DINESH KUMAR KUMAR Date: 2019.05.09 15:45:54 +0530 Pronounced in the open Court on ([ENTITY])
this 09th day of May 2019. MM08 (Central) Tis Hazari Courts, Delhi.