Delhi District Court
State vs . Vinod Kumar & Mohd. Afzal on 18 November, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0262992010
SC NO: 20/2010
FIR NO: 12/10
PS :SRRS
U/s : 489B/489C/34 IPC
STATE VS. VINOD KUMAR & MOHD. AFZAL
JUDGMENT
1 Sl. No. of the Case SC NO: 20/2010
2 Date of Committal to Sessions 24.06.2010
3 Name of the complainant STATE
4 Date of commission of offence 29.03.2010
5 Name of accused, parentage and 1. Vinod Kumar @ Shahid, S/o Sh.
address Viswanath, R/o H.No. D367, JJ
Colony, Bawana, PS Narela ,
Age: 42 yrs.
2. Mohd. Afzal Haq @ Bablu, S/o
Sh. Hafijuddin, R/o H.No.
E/2610, JJ Colony, Bawana, PS
Narela, Age: 32 yrs.
6 Offence complained of 489B/489C/34 IPC
7 Offence charged of 489B/489C/34 IPC
8 Plea of guilty Pleaded not guilty
9 Final order CONVICTED
10 Date on which order reserved 18.11.2011
11 Date on which order announced 18.11.2011
BRIEF REASONS FOR DECISION
1. Case of the prosecution as per chargesheet is that on 29.03.2010 at around 3:30 PM as per DD No.11 A Ex.PW1/A SI Devender IC/PP Kishan Ganj Railway, Delhi received a secret information that a man named Vinod along with Page 1/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 2 his accomplice sells Pakistan made Indian Counterfeit currency notes at half rate to passengers, outside Shakur Basti, Rly. Station with code words "Mullah Ka Admi". SI was also informed that he would be coming at around 7:00 PM to sell such notes to passengers of Gorak Dham Express at Shakur Basti. This information was shared by SI with SHO Inspector Deva Lal Negi who asked the SI to take appropriate action. Upon this as per DD No.12 the raiding party consisting of SI Devender alongwith HC Ajay, HC Rajesh, HC Bhagwat, HC Sunit and Ct. Satpal alongwith informer left in Govt . Gypsy DL1 CJ3611. A Rs.1000/ currency note was also taken for purchasing the counterfeit currency. The team reached RS Shakur Basti at around 6:00 PM. SI asked 7 public persons to join the raiding party but none obliged. He joined SI Gulshan Satija and Ct. Anil of RPF with him. HC Rajesh in civil clothes was made a decoy customer . His belongings were handed over to Ct. Anil vide memo Ex.PW 4/G. SI signed Rs. 1,000/ currency notes and handed it over to HC Rajesh. At this stage five passengers were requested to join the raiding team but they left in the name of catching the train.
2. On the direction of SI raiding party positioned itself while concealing themselves on platform no.1 Delhi end side. SI , HC Rajesh and informer positioned themselves at platform no.2 and waited for Vinod Kumar and his accomplice. At around 7:00 PM they saw accused Vinod Kumar with a black bag in his hands Page 2/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 3 and Mohd. Afzal Haq @ Babloo coming from Rly Bridge side . SI asked the decoy HC Rajesh to approach accused Vinod to purchase of counterfeit currency and in case of striking signal the raiding party by raising his hands. At around 7:15 PM decoy HC Rajesh raised his hands upon which SI and other raiding party members apprehended accused Vinod and Mohd. Afzal Haq. HC Rajesh handed over to SI five currency notes of Rs. 500/ denomination each while stating that he had purchased from accused Vinod for Rs. 1,000/ by uttering the words "Mulla Ka Admi". The four currency notes of Rs. 500/ denomination each Ex. P4 were seized vide memo Ex.PW3/B in transparent poly bags with the seal of DK.
3. The team asked accused Vinod and co accused that they can take team's search before giving their search. On the search of accused Vinod the signed Rs. 1,000/ currency note Ex. P1 given by decoy customer HC Rajesh to him was recovered from left side pocket of shirt. It was seized by police vide Memo Ex.PW3/C. Thereafter the black bag carried by accused Vinod in his left hand with imprint " Nike " was checked and beneath the clothes there was a green colour polythene bag containing 36 counterfeit currency notes of Rs. 500/ denomination each Ex. P3 and they were seized with the transparent polythene bag vide memo Ex.PW3/D. Thereafter personal search of Mohd. Afzal was taken and right pocket of his black pant was found containing 50 Page 3/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 4 counterfeit currency notes of Rs. 100/ each Ex. P2 were recovered .They were also seized vide memo Ex.PW3/E. The seized bag was also containing 24 tablets of white pink colour named Wieth and they were also seized vide memo Ex PW 3/H. The bag Ex.P5 was seized vide memo Ex. PW 3/G. All exhibits were sealed with the seal of DK and sealed was handed over to HC Rajesh vide memo Ex. PW 9/A. SI sent rukka Ex.PW 4/D and got FIR Ex.PW 4/A registered U/s 489B/489C/34IPC apart from endorsement on rukka Ex PW 4/G.
4. Further investigation was taken over by SI Jai Masih vide DD No.19A Ex.PW 4/C and he arrested accused Vinod vide memo Ex.PW 2/B and personal search vide memo Ex.PW 2/F. He arrested accused Afzal vide memo Ex.PW 2/E and personal search search vide memo Ex.PW 2/G. Accused Vinod gave disclosure statement Ex.PW 2/D and Mohd. Afzal gave disclosure statement Ex.PW 2/C. Seized articles were deposited in Malkhana as per record Ex.PW 5/A to Ex. PW 5/C. Exhibits were also sent to FSL and Nasik Press and the report is Ex.PY as per which the seized Rs. 500/ and Rs. 100/ denomination currency notes were found to be counterfeit. He prepared rough site plan Ex.PW 2/A.
5. Upon conclusion of investigation charge sheet U/s 489B/489C/ 34 IPC was filed. After it was committed to Sessions both the accused were charged under 489B/34 IPC while accused Vinod was additionally charged with 489 C IPC.
6. To prove its case prosecution examined 9 witnesses in all.
Page 4/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 5
7. Separate 313 Cr. P.C. statement was recorded wherein both the accused persons pleaded false implication. However they did not lead any evidence in defence.
8. I have heard arguments of Ld. APP for State Sh. G.S. Guraya and Ld. Defence Counsel for both the accused Ms. Chitra Mal from Legal Aid. I have also perused the entire case file.
9. The first witness examined by the prosecution is PW1 HC Amla who recorded DD .
10.PW2 is SI Jai Masih who took over investigation after arrest of accused Vinod and identified accused Vinod and coaccused Afzal .
11.PW3 is HC Ajay who was part of the raiding party, identified accused Vinod and co accused apart from case property.
12.PW4 is HC Om Prakash who was duty officer and recorded FIR.
13. PW5 is Ramesh Chand who was MHCM and he has proved relevant entries of Malkhana Register vide which case property was deposited and exhibits were sent to FSL.
14. PW6 is HC Ram Niwas who deposited seized tablets with FSL Rohini vide RC No. 7/21.
15.PW7 is HC Devender who took seized notes to Nasik Press on 18.5.2010 vide RC No. 5/21/10.
Page 5/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 6
16.PW8 is HC Rajesh who was also part of raiding party as decoy customer and identified accused Vinod and the seized the articles and deposed on the liens of the story of prosecution .
17.PW9 is Inspector Gulshan Satija of Railway Protection Force who was also part of the raiding party . He identified both the accused and the case property.
18.At the onset it would be appropriate to have a glance at the offences charged.
19.Section 489B & 489C IPC run as under:
Section 489B IPC Using as genuine, forged or counterfeit currency -
notes or banknotes Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currencynote or banknote, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 489 IPC Possession of forged or counterfeit currencynotes or bank notes -
Whoever has in his possession any forged or counterfeit currencynote or banknote, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished Page 6/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 7 with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
20.While opening her submissions first plea taken by Ld. defence counsel is that even though police raiding party had arrested both the accused at Railway Station , still no public witness was joined. Perusal of record in this regard reveals that repeated attempts were made by the IO to rope in public witnesses. First attempt was made when seven persons were asked to join the party as soon as the team reached Shakur Basti Railway Station. At this juncture in all his sincerity, having no other option left, SI Devender requested and joined SI Gulshan Satija of Railway Protection Force as an independent witness. Still yet another attempt was made by him just before team was positioning itself but none obliged. Since not much time was left before the accused were supposed to arrive, the members of the raiding party positioned themselves at different places.
21.On this score it is argued on behalf of the defence that PW9 Inspector Gulshan Satija can not be treated as independent / public witness in so far as he is a police official himself. I am not in conformity with this plea of Ld. Defence Counsel in so far as Railway Protection Force Officials are not Police Officers as per law .
22. As far as the RPF officials are concerned, it has been held by the Hon'ble Page 7/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 8 Supreme Court of India that these officials are not "Police Officials". So much so , that even a confessional statement given in the custody of the RPF officials is not hit by the Section 25 of the Indian Evidence Act so as the exclude it from consideration. This was so laid down by the Hon'ble Supreme Court in Balkishan A. Devidayal Vs. State of Maharashtra (AIR 1981 SC 379)
23.Further more despite repeated attempts by the IO if public persons do not join the raiding party at the Railway platform in the name of catching train , then the police team can not be squarely blamed and their investigation can not be trashed on this score. It is a matter , of which judicial notice can also be taken that more often than not no public person comes forwards to become a witness in criminal investigations.
24.Further more, truthful deposition of Delhi Police Officials and RPF Official can not trashed in a mechanical way. I find no strength in the plea of defence that deposition of police officials can not be relied in such like matters.
25. In case titled "M. Prasad Vs. State of Bihar", AIR 2001 SC 3031 Hon'ble Supreme Court held that : "When evidence recorded is satisfactory and trustworthy then nonexamination of independent witness from nearby area is not material."
Page 8/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 9
26.In another case titled, " Kalpnath Rai Vs. State" 1998 AIR (SC) 201Hon'ble Supreme Court observe that:
"There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Nonexamination of independent witness or even presence of such witness during the raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely or the ground that no independent witness was examined."
27.Another plea taken by the defence is that even though the police raiding team is shown to have left PS Sarai Rohilla for Shakur Basti Rly. Stn. in government Gypsy DL1CJ3611, no log book of the same was placed or proved on record to substantiate the plea. On this score in my considered view it is not a legal mandate that whenever any official vehicle is used in investigation , its log book has to be routinely and necessarily placed and proved on record in a trial . In any case if defence had any suspicion about the same , they could have summoned the log book. Once no such attempt was made by the defence, no benefit accrues to the defence in this regard.
Page 9/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 10
28.It has also been argued on behalf of defence that the seizure memos prepared before the registration of FIR , carries the FIR number over them and as such , they can not be relied. Close scrutiny of these documents namely Ex.PW3/A to G apart from Ex.PW4/E and F and others clearly show that they do not contain any mention of FIR number over their head, where the FIR number is conventionally placed. This is indicative of the fact that at the time of preparation of the above documents , the FIR was yet to be registered . Mention of FIR at the bottom in different hand writing and pen is just and indicative of putting an additional note subsequently so as to identify the document with the matter / investigation in hand, least it get mixed up with other case files. This subsequent note put on the bottom is itself reveals that it was so put only as a remembrance .
29.Another plea taken is that even though informer was made part of the raiding party, he was not joined in investigation as a witness. On this score it is observed that as per settled legal proposition informers risk their lives and safety in assisting the police in containing crime. In the case in hand informer did not reveal his identity to accused persons and had left merely after pointing out towards both the accused from hiding. Had the informer revealed his identity to the accused, it is only then that the police was supposed to make him a witness .
Page 10/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 11
30.Another plea taken is that police party had taken both the accused persons to the Police Post for the purpose of searching them. This fact is found to be factually incorrect, in so far as the accused were shown to have been taken to RPF Post which is not police in legal sense, moreover, the place of apprehension of the accused is just adjacent to the same. There is nothing in law which debarred police officials from taking formal search of person at the RPF Post. Moreso, when the police team acted in such a cautious and fair manner that they even offered their personal search to the accused before searching them. Also that personal search of decoy witness PW 8 HC Rajesh was effected and his personal belongings were separately removed and seized before he was handed over Rs.1000/ currency note vide memo Ex.PW3/A and Ex.PW4/G.
31.Another plea taken is that the seized Rs.1000/ currency note used for purchasing the counterfeit currency has neither been produced nor proved on record. This plea is found to be factually incorrect in so far as Rs.1000/ currency note has been produced , identified and proved on record as Ex.P1 in the deposition of PW3 HC Ajay.
32.It is also argued by Ld. Defence counsel that there and contradictions in this case qua the place where secret information was received. It is submitted that as per PW3 HC Ajay, the information was received at PS Sarai Rohilla while as Page 11/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 12 per PW8 information was received at PP Kishan Ganj Railway Station. Close scrutiny of record reveals that this plea is factually incorrect in so far as per PW3, PS Sarai Rohilla Railway Station, was the place of his posting and they were on duty with IC/ PP Kishan Ganj SI Devender at that time which is part of PS Sarai Rohilla Railway Station. As such there is no contradiction as sought to be made.
33.Further more, this investigation can not be flawed since the complainant and recovery officer SI Devender did not become Investigating Officer of the matter as investigation was transferred to SI Jai Masih soon after lodging of the FIR.
34.It has also been argued that the manner in which the coaccused were apprehended has not been explained elaborately in so far as which police official caught which accused is not specified . Record reveals that the raiding party which consisted of a team of six officials had actually surrounded the two accused persons before they were escorted to police post. In this scenario , I see no necessity of further elaboration as to which member of the team caught which accused. Moreso, when owing to the swiftness of the raid , neither of the accused had any occasion to try to run away.
35.Last submission put forth by the defence is that even though the alleged counterfeit currency notes were sealed on 29.3.2010 , they were sent to FSL only on 18.5.2011 and there is no explanation for this delay. In this regard no Page 12/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 13 doubt that the police team is supposed to dispatch the seized articles to Forensic Laboratory promptly to abrogate chances of tempering, but in the matter in hand particulars of all the seized counterfeit currency notes were reduced into the detailed inventory which contains particular of each and every currency note by referring to its individual serial number. As such the chance of any tempering thereupon was abrogated at the very initial stage itself. Moreover, there is nothing in the Forensic Report which could show that the envelopes which were sealed at the spot were in any manner found to be tempered. Hence, defence can not draw any undue benefit from the claimed delay in sending of exhibits to FSL.
36.It is also pointed out that SI Devender who led the raiding team was not examined as a witness. As per record, SI Devender stood expired before his deposition could be recorded. Once all other members including PW9 Inspector Gulshan Satija of RPF stands examined, no benefit accrues to the defence owing to non examination of SI Devender in the above circumstances.
37.Close reading of deposition of witnesses, clearly show that they are not only duly corroborated by investigational documents but they have also withstood the brunt of cross examination successfully. The Forensic Report categorically shows that the currency notes which were sold by both the accused to the decoy customer PW8 HC Rajesh and the notes which were found in their Page 13/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 14 possession were counterfeit and fake.
38.As such I have no hesitation in concluding that prosecution has successfully proved its case beyond shadow of any doubt. Both the accused namely Vinod Kumar and Mohd. Afzal Haq @ Babloo stand convicted for commission of offence punishable U/s 489B & 489 C IPC. Both the convict shall be heard separately on the point of sentence.
ANNOUNCED AND DICTATED
IN OPEN COURT ON : 18.11.2011 (SURINDER S. RATHI)
Addl. Sessions Judge02
Central : Delhi
Page 14/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 15 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI ID NO: 02401R0262992010 SC NO: 20/2010 FIR NO: 12/10 PS :SRRS U/s : 489B/489C/34 IPC STATE VS. VINOD KUMAR & MOHD. AFZAL ORDER ON SENTENCE
1. Vide judgment dated 18.11.2011 both the convicts namely Vinod Kumar and Mohd. Afzal were found guilty for commission of offences punishable U/s 489 B/489C/34 IPC and were convicted accordingly.
2. I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Legal Aid Counsel Ms. Chitra Mal advocate for both convicts . I have also perused the entire file.
3. On the point of sentence it has been submitted by Ld.Addl. PP for State that convicts do not deserve any leniency in so far as their offence is not only against the exchequer but it is also liable for disturbing the fragile economy of our nation.
4. On the other hand it is argued on behalf of the convict Vinod Kumar that he is the sole bread earner in this family which consists of his aged mother, wife and 5 children. He is not a previous convict and used to work as an embroidery worker. Vinod is in custody since 29.3.2010.
5. As far as convict Afzal is concerned, it is submitted that he is sole bread earner Page 15/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 16 of his family which consists of his father, unmarried sister , wife and four children. He is not a previous convict and is a rikshaw puller. Convict Afzal remained in J/c for around 10 months. It is also submitted that quantum of counterfeit currency shown to have been seized from convicts is also not very high and both the convicts belong to poor strata of society.
6. As far as punishment are concerned, it has been beautifully elucidate in Halsbury's Laws of England, " The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided."
7. Considering the laws, submissions, facts and circumstances, I am of the considered view that situation does not warrant imposition of maximum punishment. In order to make the ends of justice meet , both the convicts Vinod Page 16/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11 17 Kumar and Mohd. Afzal are sentenced to undergo RI for a period of 5 years for commission of offence punishable U/s 489B IPC apart from fine of Rs.10,000/ each I/D 3 months SI.
8. Both the convicts Vinod Kumar and Mohd. Afzal are also sentenced to undergo RI for the period of 5 years for commission of offence punishable U/s 489 C IPC.
9. Benefit of Section 428 Cr.P.C. is accorded to both the convicts. Both the sentences shall run concurrently. Copy of judgment and order on sentence be given to both the convicts free of cost. Warrants be prepared accordingly and file be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 22.11.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 17/17 of judgment State vs Vinod & Mohd. Afzal dt 18.11.2011 and order on sentence dated 22.11.11