S.M.N. Raina, J.
1. This is an appeal by the State Government against an order of acquittal.
2. The respondent Padamsingh (hereinafter referred to as 'the accused') was tried on a charge under Section 419 of the Indian Penal Code by the Additional District Magistrate, Gwalior. After trial he was acquitted. This appeal is directed against the said order of acquittal.
3. The case of the prosecution is that on 12th December, 1966 when the Company Commandant. Home Guards was recruiting some Home Guard Sainiks the accused submitted an application for the said post evince out his name as Ramsingh son of Hiralal. The accused was recruited as Home Guard Sainik and received uniform and other emoluments admissible to a Home Guard Sainik. After the lapse of a few months it was discovered that the name of the accused was Padamsingh and he had got himself recruited as a Home Guard Sainik by giving a false name. He was. therefore, prosecuted for an offence under Section 419 of the Indian Penal Code. He abjured his exult and denied that he had applied for recruitment and had underdone any training under the assumed name of Ramsingh. The trial Magistrate acquitted the accused mainly on the ground that in the absence of proper identification it was not established that he got himself recruited under the assumed name of Ramsineh and that it was he who had undergone training and received the kit of Home Guard Sainik and the emoluments attached to that office.
4. There can be no doubt that the learned Magistrate was in error in holding that an identification parade was necessary in this case. Identification parade is necessary where the accused is not known to the witnesses and they get an opportunity to see him only for a short while at or about the time of the commission of the offence. In such cases it is necessary to verify the capacity of the witnesses to identify the accused proper by holding a test parade. But no such test identification is necessary where the witnesses had occasion to be with the accused for quite a lone time. In such cases there is room for any mistake on the part of the witnesses in identifying the accused. The only question in such cases is whether the witnesses are telling the truth or not.
5. In the instant case Om Prakash Sharma (P.W. 8) Platoon Commander Home Guards, who had recruited the accused testified that the accused had submitted the application (Ex. p. 1) and had signed it in his presence giving out his name as Ramsingh and that the accused received training for nearly two and a half months. During this period he addressed him as Ramsingh. It is, therefore, bilious that Om Prakash Sharma camp in intimate contact with the accused for more than two months while he received training as a Home Guard Sainik. In these circumstances there can be no room for any mistake on the Dart of Om Prakash Sharma in identifying the accused and there is no reason to doubt his veracity badge there is no motive for him for falsely implicating him. Similarly the other witnesses S. Rawalsingh. District Company Commandant (P.W. 6) and S.S. Tomar. Instructor Home Guards could not make any mistake about the identity of the accused. From their testimony it is satisfactorily established that it was the accused who got himself enrolled as a Home Guard Sainik and received training for nearly 2 and half months in that capacity.
6. The important question of law. however, involved in this case is whether the accused can be said to have committed an offence under Section 419 merely because he eat himself enrolled as a Home Guard Sainik under the assumed name of Ramsingh by suppressing his name and identity. There can be no doubt that this amounts to personating within the meaning of Section 416 of the Indian Penal Code because the explanation below the section makes it clear that the offence is committed whether the individual personated is a real or imaginary person. It is, therefore clear that saving out a fictitious name also amounts to personating. But mere personating is not an offence under the Indian Penal Code.
7. In order to constitute an offence under Section 416 of the Indian Penal Code there must be cheating in addition to personating and the personating must be for the purpose of cheating. Thus cheating is an essential ingredient of the offence. Cheating is defined in Section 415 of the Indian Penal Code as under:
415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which hp would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property, is said to 'cheat.'
Explanation: A dishonest concealment of facts is a deception within the meaning of this section.
It is no doubt true that under the explanation to Section 415 of the Indian Penal Code a dishonest concealment of facts is a deception within the meaning of this Section; but deception by itself does not amount to cheating unless the Person so deceived is induced to do any of the acts specified in the section which he would not have done if he were not so deceived.
8. The offence of cheating by personating has been made punishable under Section 419 of the Indian Penal Code. The accused cannot be convicted under j the said section unless it is established that he cheated some one by personating.
9. In order to establish cheating which is an essential ingredient of the offence it was necessary for the prosecution to prove that the accused secured, his recruitment by giving out his false name and would not have been recruited as Home Guard Sainik if he had given out his correct name as Fadamsingh son of Arjunsingh Guiar. There is, however, no evidence on this point.
10. There is nothing in the evidence of either Om Prakash Sharma (P.W. 8) the Recruiting Officer or S. RawalSingh, the District Company Commandant (P.W. 6) that the accused would not have been recruited if he had given out his name as Padamsingh son of Arjunsingh Guiar. In the absence of any satisfactory evidence on this point the prosecution has failed to establish that the accused secured his recruitment by giving a false name and thus cheated the authorities concerned. By giving a wrong name the accused may have committed an impropriety for which he may be liable to be removed from service but that is another matter.
11. It appears that the case of the prosecution was that the accused was dacoit and proclaimed offender and. therefore, he would not have been recruited if he had disclosed his correct name and address at the time of recruitment. But as pointed out above there is no satisfactory evidence on this point. Asharam (P.W. 1) no doubt stated that the accused was a member of a gang but his cross-examination showed that he had no personal knowledge. Balkishan (P.W. 3) also testified that the accused was a member of a gang but his evidence is too vague and indefinite on the point. The prosecution ought to have examined some police officers to show that the accused was a dacoit and a proclaimed Ox-fender. No such evidence has been adduced. Moreover the Officers of the Home Guards, namely, S.S. Tomar (P.W. 4) S. Rawalsinsh (P.W. 6) and Om Prakash Sharma (P.W. 8) did not say that the accused would not have been appointed a Home Guard Sainik if he had given out his correct name and address. Thus all that is established is that the accused did not give his correct name and address and suppressed his identity at the time of his recruitment as a Home Guard Sainik. But in the absence of anything to show that by suppressing his identity the accused, in any way, induced the authorities concerned to recruit him. the offence of cheating by personation is not made out against the accused. We, therefore, hold that the acquittal of the accused is justified through on different wrounds.
12. The appeal therefore fails and is hereby dismissed.