Delhi District Court
State vs . Mohd. Wasim & Others on 5 July, 2012
State vs. Mohd. Wasim & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL
TIS HAZARI COURTS, DELHI
SC No. 42/2009
ID No. 02401R0104582009
FIR No. : 01/2009
Police Station : Special Cell
Under Section : 489B/489C/489D IPC
read with 120B IPC
STATE
versus
1. Mohd Wasim
S/o Mohd. Mustkim
R/o New Style Tailors,
RZ-22 Tura Mandi,
Kakrola Mod, Najafgarh
Delhi ........Accused no.1
2. Vijay Kumar
S/o Ram Prasad
R/o C-48A, 25 yards
Raghubir Nagar
Delhi
........Accused no.2
3. Mahender Pal
S/o Ram Swaroop
R/o TC Camp, H.No. 1056
Raghubir Nagar,
Delhi ........Accused no.3
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State vs. Mohd. Wasim & others
Date of Institution : 12.03.2009
Date of Commital to Sessions Court : 20.05.2009
Date of judgment reserved on : 06.06.2012
Date of pronouncement of judgment : 04.07.2012
Present: Sh.R.K.Tanwar, Additional Public Prosecutor for the State
Sh. Dinesh Sharma Advocate, Amicus Curiae for accused
Mohd Wasim
Sh. Vijay Aggarwal Advocate, learned counsel for accused
Vijay Kumar
Sh. Isslamuddin Advocate, learned counsel for accused
Mahender Pal
JUDGMENT:
1. Briefly stated facts of prosecution case are that on January 13, 2009 at about 10.45 AM, HC Dilawar Singh had received a secret information that one person named Wasim along with his companion Mahender would come at opposite Rajiv Gandhi Cancer Hospital between 12 noon to 12.30 PM to deliver fake indian currency notes to one person named Vijay. The said information was conveyed to ASI Rakesh who further conveyed to Insp. Attar Singh, who further conveyed to ACP Northern range. Thereafter, raiding party was constituted and secret information was recorded vide DD No. 5. At about 11.30 AM, the raiding party left from Special Cell office in a gypsy bearing registration No. DL-1C-J-3566 and in a private car bearing No. UP-14-V-2777. Secret informer also accompanied the raiding party. It was alleged that at about 12.10 PM, one person came from Aventika side and stood near newspaper vendor. After seeing him secret informer informed the investigating officer that his name was Vijay. After reaching there Vijay started looking here and there and started waiting for someone. After about five minutes, two persons came from Metro Station side and stood SC No. 42/2009 Page no. 2 of 28 State vs. Mohd. Wasim & others near Vijay and thereafter they started talking with Vijay. The person who was wearing yellow colour jacket was identified as Wasim by the secret informer and he was carrying a bag on his shoulder. Another person was identified as Mahender Pal by secret informer. It was alleged that after having talk for about five minutes, Wasim had handed over his bag to Vijay. When ASI Rakesh Kumar along with staff led towards them, all of them ran away towards Aventika side. However, police party apprehended all of them.
(i). On taking cursory search of the bag which was given by the accused Wasim to Vijay, one polythene of Bikanare Misthan Bhandar was found therein which was found containing 500 currency notes of ` 100/- each. It was alleged that all the currency notes were found counterfeit. On cursory search of accused Wasim, two packets of currency notes of ` 100/-each were recovered from his right pocket of pant whereas one packet of currency notes of ` 100/-each was recovered from his left side pocket. Thus, in total ` 30,000/- fake currency notes were recovered from the possession of accused Wasim.
Nothing was recovered from accused Mahender Pal. The recovered currency notes were sealed in separate pullandas and were seized. Thereafter, ASI Rakesh Kumar prepared a rukka and sent HC Dilawar Singh to the police station to lodge an FIR. Further investigation was assigned to SI Satender Vashist who reached the spot as per the direction of Insp. Attar Singh.
(ii) It was alleged that pursuant to the disclosure statement of accused Vijay, his house was searched and eleven counterfeit currency notes of ` 100/- each were recovered from one small suitcase. Twenty nine partly printed sheets and Twenty five blank sheets were also recovered from his house. The same were sealed in separate pullandas.
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Similarly, on the search of house of accused Wasim, twenty five partly printed sheets and thirty seven blank sheets were recovered from his house. Some torn pieces of currency notes were also recovered from the dustbin. Same were kept in separate pullandas and seized. Nothing was recovered from the house of accused Mahender Pal.
2 After completing investigation, a challan was filed against the accused persons for the offence punishable under Section 489B/489C/489D/120B IPC. It was also mentioned therein that their co- accused Saleem and Zafeer could not be arrested despite best efforts made by investigating agency and submitted that supplementary charge- sheet would be filed after their arrest. After complying with the provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on May 14, 2009. Thereafter, the case was assigned to the learned Predecessor of this Court on May 20, 2009. Accordingly, case was registered as SC No.42/2009.
3. Initially, vide order dated July 7, 2009, a charge for the offence punishable under Section 489 B and 489 C IPC was framed against the accused persons. Thereafter, vide order dated January 19, 2011, a fresh charge for the offence punishable under Section 489B/489C/489D/120B IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused, prosecution has examined as many as following 9 witnesses:-
PW-1 Babu Lal, landlord of the house of accused Vijay PW-2 HC Parveen Kumar, duty officer, proved the FIR SC No. 42/2009 Page no. 4 of 28 State vs. Mohd. Wasim & others and DD No. 9A and 10A PW-3 Aasha Ram, landlord of the house of accused Wasim, turned hostile PW-4 SI Hawa Singh, DD writer, proved the DD No. 5, 6, 11 & 15 PW-5 Const. Joginder Singh, member of raiding party PW-6 HC Dilawar Singh, member of raiding party PW-7 ASI Rakesh Kumar, investigating officer PW-8 SI Satender Vashist, 2nd investigating officer PW-9 ASI M. Baxla, MHCM
5. Thereafter, all accused persons were examined under Section 313 Cr.P.C wherein they denied all the evidence led by the prosecution. Accused Mohd. Wasim took the plea that he was using the mobile phone of one Manish Lamba who was residing at Najafgarh. It was stated that he was working at the shop of his Mosa. It was stated that Manish called him at District Centre, Janak Puri asking him to return his mobile phone and when he reached there, police apprehended him and thereafter falsely implicated him in this case. Accused Vijay took the plea that he used to sell shoes on the pavement at District Center and police had lifted him from there on January 11, 2009 and thereafter illegally detained him for two days. It was submitted that police had also detained Mohd. Wasim. Police had inquired from him whether he knew Mohd. Wasim or not. When he declined, police falsely implicated him in this case. It was submitted that nothing was recovered from his possession. Accused Mahender Pal stated that he had been falsely implicated in this case. To prove his innocence, accused Vijay examined Manish Kumar as DW1 while other accused persons refused to lead evidence in their defence.
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6. I have heard Sh. R. K. Tanwar, Additional Public Prosecutor for State, Sh. Dinesh Sharma, Amicus Curiae for accused Mohd. Wasim, Sh. Vijay Aggarwal, Advocate, counsel for accused Vijay Kumar and Mr. Isslamuddin Advocate, counsel for accused Mahender Pal and perused the record carefully. No question of law is raised by counsel for either parties.
7. Learned counsel appearing for the accused persons vehemently contended that no reliance can be placed on the deposition of police official witnesses as their testimony is not corroborated from any independent corner and no sincere efforts were made to persuade public persons to join the investigation either at the time of apprehending the accused persons or even thereafter. It was submitted that explanation furnished by the witnesses for not joining the public persons are not convincing. It was further submitted that even no efforts were made to join the independent witness at the time of taking search of house of accused Wasim and Vijay. It was submitted that investigating officer had violated the mandatory provisions of Section 100 Cr.P.C. It was further submitted that no adverse inference can be drawn against the accused persons on the basis of alleged recovery from the house of accused Wasim and Vijay as the same was not pursuant to any distinct information disclosed by them to the police. It was further contended that since no printing material was recovered from the accused persons, thus there is no evidence on record to show that accused persons were involved in trafficking of fake currency notes. It was further submitted that there was unreasonable delay of 22 days in sending the case property to the Nasik Press, thus there is every possibility to temper with the case property. It was further submitted that the investigating officer had preferred to use private vehicle and he even did not hesitate to take the SC No. 42/2009 Page no. 6 of 28 State vs. Mohd. Wasim & others obligation of his friend while taking his Qualis to go to Etah. It was submitted that no log book of the said vehicle is produced by investigating officer. Thus, it shows that the entire recovery is stage managed recovery. Learned counsel also pointed out the contradictions between the deposition of PW5 to PW8. Learned counsel appearing for accused Mahender Pal vehemently contended that there is no iota of admissible evidence against him to show that accused was involved in any manner in the trafficking of fake currency notes. Similarly, counsel appearing for accused Vijay also contended that there is not sufficient evidence to establish that accused Vijay had any conspiracy with accused Wasim or that he was involved in the fake currency racket. .
8. Per contra, learned Additional Public Prosecutor for State refuted the said contentions by arguing that the deposition of police official witnesses cannot be discarded mere fact that they are police official witnesses. It was submitted that mere fact that no public witness came forward to join the raiding party is not sufficient ground to discard the testimony of police official witnesses. It was further submitted that pursuant to the disclosure statement of accused Wasim and Vijay, recovery was effected from their respective houses, thus, the recovery is admissible under Section 27 of Indian Evidence Act. It was submitted that the contradictions pointed out by learned defence counsel are not material in nature, hence no adverse inference can be drawn against prosecution. No case law is cited in support of his contention.
9. Though prosecution has examined as many as nine witneses, yet prosecution case is based on the deposition of four witnesses namely PW5, PW6, PW7 & PW8. All of them are police official SC No. 42/2009 Page no. 7 of 28 State vs. Mohd. Wasim & others witnesses.
10. It is well settled principle of law that the testimony of police official though not corroborated by any independent witness cannot be brushed aside without any good ground (relied upon State of Gujarat vs. Raghu Nath, AIR 1985 SC 1092). It is also settled law that the evidence of police official has to be judged like evidence of any other witness, on its intrinsic worth on prima facie presumption of his honesty and conscientiousness. There is no reason for presuming him to be a highly interested witness. (relied upon Khima vs. State of Saurashtra AIR 1956 SC 217) 11 In view of the above settled proposition of law, I do not find any force in the contention of learned counsel appearing for the accused persons that no reliance can be placed on the deposition of police official witnesses on the mere ground that same is not corroborated from any independent corner. To my mind, conviction can be recorded on the deposition of police official witnesses, if their testimony is otherwise trustworthy.
12. Prosecution case is that efforts were made to persuade public persons to join the raiding party at the time of apprehending the accused persons but no public person came forward as they went away without disclosing their name and address. No doubt in a city like Delhi, it is difficult to persuade a public person to join the investigation in a criminal matter but once the investigating agency took the plea that they had made efforts to join public persons, onus is upon the prosecution to establish that sincere and genuine efforts were made to join the independent witness.
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13. Perusal of the testimony of PW5, PW6 and PW7 reveals that ASI Rakesh had made request to two-three persons to join the raiding party but none came forward and went away without disclosing their name and address. It was further revealed that the said request was made to passersby and not to any person whose identity can be established. Investigating officer had taken about 3-4 minutes in making the request to public persons. This itself shows that the sincere efforts were not made to persuade the public persons to join the raiding party. PW5 deposed that request was also made to the newspaper vendor to join the raiding party but he refused to join the same and also refused to disclose his name. It is highly unbelievable that newspaper vendor would not disclose his name on the asking of police official. PW7 deposed that the newspaper vendor refused to join the raiding party on the ground that the culprit might be of bad character people. As and when police apprehend a person, such person most likely to be of bad character, thus it was not a reasonable excuse for not joining the investigation. PW7 further deposed that another person to whom request was made refused to join the raiding party on the ground that his mother was admitted in the hospital. Learned Additional Public Prosecutor failed to convince the Court why the investigating officer had not made any request to the employees of the parking where they parked gypsy or the employee of the hospital or the shopkeeper or the employees of the DTC bus depot which was located nearby to join the investigation. This shows that the investigating officer had not made sincere and genuine efforts to join public witnesses at the time of apprehending the accused persons. Though this itself is not a sufficient ground to discard the testimony of police official but it impels the Court to take extra caution at the time of appreciating their deposition.
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14. Prosecution case is that on January 14, 2009, house of accused Mohd. Wasim and Vijay was searched and some incriminating articles were found from their houses. Perusal of the testimony of witnesses examined by prosecution reveals that no public witness was asked to join the proceedings at the time of alleged recovery. Though PW8 deposed that he had requested two-three neighbours to join the investigation at the time of taking search of the house of accused Vijay but none came forward to join the investigation. However, he failed to depose the name of those neighbours to whom request was made to join the investigation. He further deposed that since no person met at the house of accused Wasim, no request was made to any person to join the investigation while taking search of his house. On the contrary, PW5 deposed that no person was asked to join the investigation while taking search of the house of accused Vijay. From his testimony, it is not clear whether any request was made to public persons to join the investigation while taking the search of the house of accused Wasim. PW7 deposed that no person was met near the house of accused Wasim and he has not noticed any person in the building wherein the house of accused Wasim was located. Thus, there is a contradiction between the deposition of PW5 & PW8 as PW8 deposed that he made a request to two-three persons to join the investigation while taking search of the house of accused Vijay whereas PW5 deposed that no such request was made.
15. Section 100 Cr.P.C deals with the procedure while taking the search of a place during the investigation. Section 100(4) Cr.P.C. reads as under:
"Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be SC No. 42/2009 Page no. 10 of 28 State vs. Mohd. Wasim & others searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
(emphasis supplied)
16. Section 100 Cr.P.C casts a duty upon the investigating officer to join two or more independent and respectable residents of the locality before taking the search or if any such persons are not willing or available, duty is cast to call upon such persons from other locality. Thus, mere fact that two-three neighbours refused to join the investigation is not sufficient to discharge the investigating officer from his obligation. Since PW8 failed to disclose the name of such persons, doubt is arisen over his efforts. During the course of arguments, learned Additional Public Prosecutor contended that since the public witnesses did not wish to face the agony by appearing in the Court as a witness, thus no person came forward to join the investigation at the time of search. To my mind, the said contention is without any substance as sub-section (5) to Section 100 Cr.P.C clarifies that such person is not required to appear as a witness unless he specifically summoned by the Court. Sub Section (5) reads as under:
"The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it."
(emphasis supplied)
17. Thus, it is a myth that if a person joins the investigation at the time of search, he is required to attend the Court as a witness. On the converse, it is the duty of the investigating officer to convince the public persons that they are not required to attend the Court to prove the SC No. 42/2009 Page no. 11 of 28 State vs. Mohd. Wasim & others seizure. Since, no independent and respectable person of the locality was joined at the time of alleged recovery from the house of accused Mohd. Wasim and Vijay, thus to my mind, no adverse inference can be drawn against them on the basis of alleged recovery.
18. Besides the above, there is another reason not to place any reliance on the alleged recovery. Prosecution case is that the alleged recovery was affected pursuant to the distinct information disclosed by the accused persons during investigation. Perusal of the testimony of PW5 & PW7 reveals that they had not deposed anything during their testimony that accused persons had disclosed any distinct information during interrogation such as they could get recovered any incriminating article from their respective houses. Though PW8 in his examination-in- chief deposed that accused Wasim had disclosed that he could get recovered more fake currency notes and equipments for making fake currency notes from his rented house near Barkal Lake. However, his testimony is contrary to his disclosure statement which is exhibited as Ex. PW5/D wherein he disclosed that he could get recovered fake currency notes and printing equipments such as computer and scanner from Etah and also could get arrested accused persons namely Saleem and Zafeer. In his entire disclosure statement, he nowhere disclosed that he could get recovered the fake currency notes from his rented house located near Barkal Lake. Similarly, accused Vijay in his disclosure statement exhibited as Ex. PW5/F did not disclose that he could get recovered any incriminating item from his house. Moreover, none of the witnesses deposed in his testimony that accused persons made any disclosure statement that they had concealed some incriminating articles in their respective houses and they could get recovered the same from their respective house. In these circumstances, to my mind the alleged recovery does not fall within the four corners of Section 27 of the Indian SC No. 42/2009 Page no. 12 of 28 State vs. Mohd. Wasim & others Evidence Act.
19. Learned counsel appearing for the accused Mahender Pal vigorously contended that there is no iota of evidence against the accused as nothing was recovered from his possession. On the other hand, learned Additional Public Prosecutor contended that he accompanied the accused Mohd. Wasim at the time of giving the delivery of fake currency notes.
20. It is admitted case of the prosecution that nothing incriminating was recovered from the accused Mahender Pal either at the time of arrest or from his house. Prosecution has roped him with the aid of Section 120B IPC on the ground that he accompanied the accused Mohd. Wasim at the time of giving delivery of fake currency notes. As per the disclosure statement of accused Mahender Pal, his job was to arrange potential buyers for fake currency notes and earlier also he had arranged a buyer for fake currency notes to whom Mohd. Wasim and Vijay had supplied fake currency notes worth of ` 90,000/-. It was further disclosed that the fake currency notes worth of ` 10,000/- to ` 20,000/- were supplied to 2-3 buyers through him. Admittedly, pursuant to that disclosure no recovery was affected. Nor the alleged buyers were apprehended. Needless to say that the disclosure statement made to the police is not admissible as the same is hit by Section 25 of Indian Evidence Act. Assuming for the sake for arguments that accused Mahender Pal was known to the accused Wasim and Vijay and his job was to arrange potential buyers as alleged by the prosecution. But to prove this fact, prosecution has failed to bring any admissible evidence on record. Even there is no evidence to establish that accused Mahender Pal was in touch with the accused persons in any manner. Even SC No. 42/2009 Page no. 13 of 28 State vs. Mohd. Wasim & others investigating officer did not deem it appropriate to scrutinise the calls detail of accused persons. Resultant there is no evidence on record even to show that accused Mahender was in touch with the accused persons in any manner. If there is no evidence to establish the connection between Mahender Pal and other accused persons, question of arranging potential buyers for fake currency notes does not arise. No doubt as per the testimony of police official witnesses, it appears that accused Mahender Pal was also present at the time of alleged incident but none of the witnesses had deposed any overt act of accused Mahender Pal. In other words, there is nothing on record to establish that accused Mahender Pal was aware about the contents of bag, which was delivered by Wasim to Vijay. No doubt the criminal conspiracy is hatched secretly and it is not plausible to adduce ocular evidence to prove the conspiracy. But to rope a person with the aid of section 120B IPC, prosecution is duty bound to establish that there was an agreement between the accused Mahender Pal and others to print fake currency notes and to supply the same to potential buyers. But on the contrary there is not even an iota of evidence to establish the connection of accused Mahender Pal with other accused persons.
21. Taking into account the above, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Mahender Pal beyond the shadow of all reasonable doubts. Thus, I hereby acquit the accused Mahender Pal from all the charges.
22. Counsel appearing for accused Vijay also contended that there is no evidence to establish that accused Vijay was indulged in the fake currency racket. It was contended that though prosecution case was that accused Vijay used to arrange potential buyers for accused Mohd.
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Wasim and his companion Saleem and Zafeer but there is no evidence to establish this fact and even no investigation was conducted to establish the fact that accused Vijay had supplied the fake currency notes to any person previously.
23. Prosecution case is that accused Mohd. Wasim had handed over the bag containing the fake currency notes to accused Vijay. As per prosecution version, job of Vijay was to arrange potential buyers for the fake currency notes. As per prosecution version, accused Mohd. Wasim had supplied the fake currency notes worth of ` 50,000/- to Vijay for supplying the same to the potential buyers. But during investigation, no effort was made to find out to whom the said fake currency notes were to be supplied. If the job of accused Vijay was to arrange potential buyers for fake currency notes, it means that there was some buyer to whom Vijay had to supply the fake currency notes but during the investigation no effort was made in this regard to identify the said buyer. As per the disclosure statement of accused Vijay he had earlier supplied ` 90,000/- to one person of Samey Pur Badli. Similarly, he had also disclosed that at one occasion he had supplied ` 10,000/- to one person and ` 20,000/- to another person after taking fake currency notes from Mohd. Wasim. But surprisingly, no sincere efforts were made either to get know the identity of such persons or to apprehend them. In other words there is no admissible evidence on record to establish the fact that accused Vijay's job was to supply the fake currency notes to the potential buyers except his disclosure statement, which is hit by Section 25 of Indian Evidence Act. Admittedly, no recovery was affected pursuant to the alleged disclosure statement.
24. There is another reason for not placing any reliance on the SC No. 42/2009 Page no. 15 of 28 State vs. Mohd. Wasim & others version of prosecution. Prosecution case is that accused Mohd Wasim along with his associates namely Saleem and Zafeer were indulged in printing of fake currency notes whereas Mohd. Wasim had assigned the job of arranging potential buyers to Vijay and Mahender Pal. It is also admitted case of prosecution that accused Vijay and Mahender Pal had earlier supplied the fake currency notes worth of ` 90,000/- to one resident of Samey Pur Badli and at one occasion they had supplied the fake currency notes of ` 10,000/- and at another occasion they supplied the fake currency worth of ` 20,000/-. It is but natural that all the accused were involved in this illegal activities to earn handsome gain. But surprisingly, no efforts were made to find out for how much money the said fake currency notes were sold to the alleged buyers and how they had shared the ill-gotten money. Even no effort was made to recover the said ill-gotten money. It is pertinent to state that it is not the prosecution case that accused used to circulate the fake currency notes in the market to unwary shopkeepers etc. On the converse, prosecution version is that they used to supply fake currency notes to particular persons, it means that the alleged buyers knew that the supplied currency notes were fake.
25. Admittedly, the offence punishable under section 489B and 489D IPC attract punishment up to imprisonment for life. Thus, in such a heinous crime, Society and Court expect better quality of investigation. In the instant case, investigation was conducted by the investigators of Special Cell, which is well equipped to conduct intensive investigation. But it appears that the investigators of Special Cell are not aware about the basic cardinal rules of investigation. Even investigating officer did not aware as to whether Special Cell is governed by the provisions of Punjab Police Rules or not as PW7 in his cross-examination deposed that he did not know whether Special Cell is governed by the Punjab Police Rules SC No. 42/2009 Page no. 16 of 28 State vs. Mohd. Wasim & others or not. How can Society expects to follow rules from such investigator who does not know which rules he has to follow during investigation. Needless to say whenever a case is investigated by a specialized agency such as Special Cell, Court and Society expect better quality of investigation. As already discussed, in this case no efforts were made either to know the identity of persons who bought fake currency notes from Vijay and Mahender Pal or to recover the ill-gotten money by selling the fake currency notes. Such lapses were not expected from such a specialized agency.
26. If prosecution failed to establish that the role of accused Vijay was to supply the fake currency notes after arranging buyer, it casts a doubt over the prosecution version that he had taken the delivery of fake currency note for that purpose. Though the witnesses examined by the prosecution deposed that accused Mohd Wasim had talked with Vijay for about 5 minutes before handing over the bag to him but they failed to depose what talk had taken place between them as none of the witnesses was in a position to overhear their talk. If Vijay already knew the contents of bag, there was no occasion for him to talk with Mohd Wasim or if he did not know the contents of bag, question arises what conversation had taken place between them. But there is no evidence in this regard. Moreover, it is admitted case of prosecution that accused Mohd. Wasim used to print the fake currency notes at his rented room at Faridabad, if it was so, it means that accused Mohd Wasim had brought the fake currency notes from Faridabad. During trial, prosecution failed to convince the Court how Mohd Wasim had informed the accused Vijay that he would reach there to deliver him fake currency notes. To my mind, only calls detail of accused persons could highlight over the said mystery but investigators did not deem it appropriate to examine their calls detail.
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26. Prosecution case is that accused Mohd. Wasim used to print fake currency notes with the help of computer and scanner in a rented room at Faridabad. Admittedly, the alleged computer and scanner were not recovered from the alleged rented room. PW8 in his cross- examination deposed that co-accused namely Saleem and Zafeer had removed the said computer and scanner from the said room. But during investigation, police failed to collect any evidence in this regard. In the absence of any evidence, no reliance can be placed on the deposition of PW8 that the said computer and scanner were removed by Saleem and Zafeer.
27. It is admitted case of the prosecution that accused Mohd. Wasim was arrested on January 13, 2009 and he made a disclosure statement about the above computer and scanner on January 13, 2009 itself. Admittedly, police conducted the raid at Faridabad on January 14, 2009 at about 8 pm. But during the period i.e when accused was apprehended and when police party visited Faridabad, no effort was made to alert the local police to keep an eye on the said room. Had the investigating officer alerted the local police about the said room and computer & scanner, it would not be possible for the alleged companions of Mohd. Wasim to remove the same. This lapse further casts a doubt over the credibility and capability of the investigators. On the contrary, PW8 even did not deem it appropriate to inform the local police about the search of the house of Mohd. Wasim. Needless to say that investigation of a case is a team work, thus investigator may need the assistance of different agencies for effective and prompt investigation. But in the instant case it appears that investigators preferred to go alone. Such approach is not appreciable.
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28. Prosecution case is that accused Mohd. Wasim used to print fake currency notes at his room at Faridabad whereas he was residing at Najafgarh. Accused Vijay was residing at Raghubir Nagar. Admittedly, it is not the prosecution case that accused Vijay also used to print fake currency notes at his house. If it was so, prosecution failed to convince the Court how the partly printed currency notes could be recovered from his house. It looks quite absurd that accused Vijay would bring it from Faridabad. This further casts a doubt over the alleged recovery.
29. Prosecution case is that on January 15, 2009 PW8 along with the police party and accused Mohd Wasim left for Etah, Uttar Pradesh to apprehend the co-accused Saleem and Zafeer in a Qualis Car. PW8 in his cross-examination deposed that the distance between Delhi and Etah is about 100 km. Learned counsel appearing for accused during the course of arguments placed on record the bus ticket of U.P Roadways from Delhi to Etah showing that the distance between both the cities is 210 km. I have also confirmed the same from internet, which shows that the road distance between both the cities is about 207 km. This itself casts a doubt over the visit of Etah and the claim of prosecution that sincere efforts were made to apprehend Saleem and Zafeer.
30. There is another reason to cast a doubt over the prosecution version that they had visited Etah to apprehend Saleem and Zafeer. PW8 in his cross-examination admitted that they had gone to Etah in a private Qualis car. He further admitted that the said car belonged to his friend Sachin Bhalla, who had given his car to him under obligation. However, he swiftly added that he had paid ` 1500/- for fuel SC No. 42/2009 Page no. 19 of 28 State vs. Mohd. Wasim & others charges and no official vehicle was available on that day. He further deposed that he did not remember whether he had claimed said fuel charges from the office or not, but admitted that he had not mentioned all these facts in his case diary. PW8 is the sub-inspector in the Special Cell, Northern Range. Special Cell is a unit of Delhi Police to deal with the heinous crimes and said Unit is well equipped with all necessary instruments including vehicles. No police official is supposed to take personal obligation of his known or friends at the time of conducting investigation. Being the sub-inspector, it was his duty not to take the car under personal obligation of his friend. Assuming for the sake of arguments that no official vehicle was available on that particular day, he should have hired a vehicle instead of taking the vehicle under personal obligation. Needless to say that investigation should not only be impartial but also transparent, how can Society expect an impartial and transparent investigation, if investigators have to take personal obligation for a vehicle for the purpose of investigation. It is duty of higher police officers to ensure that the investigators get every facility for the purpose of conducting an impartial and transparent investigation. Simultaneously, I do not find any reason why an investigator be compelled to bear the fuel charges when he hired the vehicle for the purpose of investigation. It is duty of higher officers to protect the honest investigators from bearing such charges. No doubt some time circumstances may compel the investigators to use private vehicles in conducting the raid to conceal their identity from the culprits but in such a situation proper record to such vehicles should be placed on record. For instance, the meter reading of such vehicle should be noted down in the rojnamcha register at the time of its inducting the vehicle in the raid and a temporary log book should also be maintained to show the total distance travelled by such vehicles. Had the investigating officer maintained a log book of the Qualis car, prosecution would be in a position to explain the approximate SC No. 42/2009 Page no. 20 of 28 State vs. Mohd. Wasim & others distance travelled by the said car to clarify that the distance of Etah was about 200 km and not 100 km as deposed by PW8. But unfortunately, PW8 had not maintained any log book of said Qualis car while using it for conducting raid at Etah. Though at the time of using private car bearing no. UP-14V-2777, ASI Rakesh had made an entry in DD No.6 but it is not clarified to whom the said car belonged to and who had arranged the said car. Even its meter reading was not noted down. Nor any log book of the said car was maintained. In other cases also this Court has noticed that investigating officers of Special Cell are in the habit of using private vehicles at the time of conducting investigation without maintaining the proper record of such vehicles. Needless to say that log book may help the Court to arrive at a right conclusion as and when a question is raised over the truthfulness of the deposition of police official witnesses. To my mind for the purpose of an impartial and transparent investigation some guidelines are to be framed in this regard. Moreover, this act (taking private vehicle under obligation) of police officials is contrary to their version that when they ask public persons to join investigation they refuse on some flimsy grounds and even refuse to disclose their name and addresses but as and when they need private vehicles their friends and known are always ready and willing to render their service by providing their vehicles without any charges.
31 Considering the above lapses, the prosecution version that efforts were made to apprehend Saleem and Zafeer by conducting raid at Etah does not inspire any confidence.
32. Now coming to the contention of learned counsel for accused persons that no reliance can be placed on the prosecution case as there was delay of 22 days in sending the case property to Nasik SC No. 42/2009 Page no. 21 of 28 State vs. Mohd. Wasim & others Press for analysing. In support of their contention, they relied upon the judgment Desh Raj @ Dass v. State, 2000 CRI.L.J. 2083 and Safiullah v. State, I-1993 (1) Crimes 204.
33. I have gone through both the judgment and of the view that the same are not applicable in the present case as in the former judgment neither MCH(M) was examined nor CFSL form was filled up. Similarly, in the second judgment neither the CFSL form was filled up nor road certificate was exhibited or produced. Whereas in the instant case prosecution has examined the MHC(M) as PW9 who categorically deposed that on January 13, 2009 ASI Rakesh Kumar had deposited two sealed parcels duly sealed with the seal of RK and form FSL duly sealed with the seal of RK. Similarly, on January 14, 2009 four parcels duly sealed with the seal of SB and FSL form were deposited with him. He further deposed that on February 5, 2009 he had handed over the case property to SI Satender Vashist vide road certificate no. 14/21/2009 to deposit the same at Nasik Press and after depositing the same, SI Satender had returned the acknowledgement. His testimony is corroborated by PW8 in his deposition. No doubt there is delay of about 22 days in sending the case property to Nasik Press but the said delay cannot be called inordinate delay which may affect the prosecution case in any manner especially when prosecution has not only examined the MHC(M) but also proved road certificate during the trial.
34. Now coming to the case of individual accused. As already discussed that there are not sufficient evidence to prove the guilt of accused Mahender Pal and Vijay. Now turning to the case of accused Mohd Wasim. Prosecution case is that accused Mohd Wasim had handed over a bag containing fake currency notes worth of ` 50,000/-
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and also found in the possession of fake currency notes worth of ` 30,000/-. This fact is proved from the testimony of PW5 to PW7. No doubt the testimony of said witnesses is not corroborated from any independent corner but as already discussed that mere fact that the investigating officer failed to persuade any independent witness at the time of alleged recovery is not sufficient to discard their testimony. Learned counsel appearing for the accused pointed out contradictions between the testimony of PW5 on the one hand and testimony of PW6 and PW7 on the other hand as PW5 deposed that Vijay had come from Metro side whereas accused Mohd. Wasim and Mahinder Pal came from Aventika side. On the converse other two witnesses namely PW6 and PW7 deposed that accused Wasim and Mahinder Pal came from Metro side while Vijay came from Aventika side. No doubt there is contradiction between the witnesses in this regard. Admittedly, PW5 was examined twice, firstly on August 4, 2010 and secondly on September 20, 2011. In his former deposition, PW5 deposed that accused Vijay had come from Aventika side whereas other two accused had come from metro side. However in his subsequent statement he deposed vice-versa. Thus, it appears that contradiction had occurred due to some confusion. To my mind said contradiction is not material in nature, thus not fatal to the prosecution case. Similarly, it was pointed out that PW5 deposed that the disclosure statement of accused persons were recorded in the Special Cell whereas PW8 deposed that he had recorded the same at the spot. Since, the said disclosure statements are not admissible in evidence and as already discussed Court is not placing any reliance on the recovery allegedly recovered from the house of accused Mohd. Wasim and Vijay, to my mind said inconsistency is not fatal to the prosecution case in any manner.
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State vs. Mohd. Wasim & others
35. From the testimony of PW5 to PW7 it is established that accused Mohd. Wasim was apprehended on January 13, 2009 from opposite Rajiv Gandhi Cancer Hospital, Rohini and was found in the possession of fake currency notes worth of ` 30,000/- and fake currency notes worth of ` 50,000/- were recovered from the bag, which he was carrying and handed over to Vijay. Though accused Mohd. Wasim in his statement recorded under section 313 Cr.P.C. took the plea that he was picked up from District Centre, Janak Puri but in support of his plea accused failed to adduce any evidence. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of witnesses examined by prosecution. However, their deposition only proves the guilt of accused Mohd Wasim for the offence punishable under Section 489C IPC. Though prosecution case is that accused Mohd. Wasim had either printed the said fake currency notes at his rented room at Faridabad or he received the same from Saleem and Zafeer, yet during trial prosecution failed to lead sufficient evidence to prove the said charges. As already discussed, in the absence of any cogent evidence, prosecution has failed to prove the guilt of accused Mohd. Wasim for the offence punishable under Sections 489B and 489D IPC. Similarly, prosecution has also failed to prove the charges of conspiracy.
36. Pondering over the on-going discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Mohd Wasim, Mahinder Pal and Vijay Kumar beyond the shadow of all reasonable doubts for the offence punishable under Section 489B/489C/489D IPC read with section 120B IPC, thus I hereby acquit them thereunder. However, prosecution has succeeded to establish the guilt of accused Mohd Wasim beyond the shadow of all SC No. 42/2009 Page no. 24 of 28 State vs. Mohd. Wasim & others reasonable doubts for the offence punishable under Section 489C IPC, thus I hereby hold him guilty for the offence punishable under Section 489C IPC.
37. In order to frame guidelines at the time of using private vehicles during investigation, copy of judgment be sent to the Commissioner of Police with direction to frame guidelines within four weeks from the date of receipt of judgment under intimation to this Court.
Announced in the open Court
on this 4th day of July 2012 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central, Tis Hazari Courts,
Delhi
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State vs. Mohd. Wasim & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL
TIS HAZARI COURTS, DELHI
SC No. 42/2009
ID No. 02401R0104582009
FIR No. : 01/2009
Police Station : Special Cell
Under Section : 489B/489C/489D IPC
read with 120B IPC
STATE
versus
Mohd Wasim
S/o Mohd. Mustkim
R/o New Style Tailors,
RZ-22 Tura Mandi,
Kakrola Mod, Najafgarh
Delhi ........Convict
Present: Sh.R.K.Tanwar, Additional Public Prosecutor for the State Sh. Dinesh Sharma, Advocate, Amicus Curiae along with Sh. Deepak Yadav, Advocate for convict ORDER ON THE POINT OF SENTENCE:
1. Vide separate judgment dated July 4, 2012, accused Mohd.
Wasim has been held guilty for the offence punishable under Section 489 C IPC.
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2. Learned counsel appearing for convict requested to release the convict for the period already undergone on the ground that convict is in custody since January 13, 2009. On the other hand, learned Additional Public Prosecutor requested to impose maximum sentence on the ground that convict was found in the possession of counterfeit currency notes in huge quantity and is also facing trial in another case bearing FIR No. 43/2004, PS Bara Hindu Rao, under Section 489A/489B/489C & 420/120B IPC.
3. I have heard rival submissions advanced by counsel for the parties, perused the record carefully and gave my thoughtful consideration to their submissions.
4. It has been established that convict was found in the possession of counterfeit currency notes to the tune of ` 30,000/- and ` 50,000/- were found in the bag, which he had delivered to one Mr. Vijay Kumar. Admittedly, convict is also facing trial of similar nature of offence in another Court. The offence of counterfeit currency notes is quite serious in nature as it affects the public at large because it is one of the causes of high inflation. Considering the gravity of the nature of offence, I do not find any reason to impose token sentence as prayed by learned counsel for convict.
5. Considering the facts and circumstances of the case, I sentence the convict Mohd. Wasim rigorous imprisonment for a period of five years and a fine of ` 30,000/- in default further simple imprisonment for a period of one year for the offence punishable under Section 489 C IPC. Benefit of Section 428 Cr.P.C be given to the convict.
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6. The seized counterfeit currency notes be confiscated to the State and be destroyed after the period of appeal or revision and if any appeal or revision is filed then after the decision of such appeal or revision.
7. Copy of judgment along with order on the point of sentence be given to the convict/his counsel free of cost.
8. File be consigned to record room.
Announced in the open Court
on this 5th day of July 2012 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central, Tis Hazari Courts,
Delhi
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