Delhi District Court
Independent Source, In The Case Of Ajmer ... vs . State Of Haryana on 7 November, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.19/12
FIR No.39/12
PS Crime Branch
U/s 467/474/489(C) r/w Sec.34 IPC, 120B IPC
& 14 of Foreigners Act
In the matter of :
State
versus
1. Gabriel Olawale Ajisafe,
S/o Ajisafe,
R/o 26, Ayesha, Ilesha, Nigeria.
Presently:
R/o I8/32, Sector 16, Rohini, Delhi.
2. Sunday Odigie @ Sunny,
S/o Imosin,
R/o PO Box NO.123, Oke Benincity,
Nigeria.
3. Enwere Okechukwa Kelvin,
S/o Enwere,
R/o PO Umuoma Oge Ahiara Ahiazu,
Mbaise, Nigeria.
1
4. Augustine John Kwaku Kyare,
S/o Kwaku Kyare,
R/o PO Box NO.17, Berekum,
B/A Ghana.
5. Caroline Cherotich @ Mary,
W/o Henry Felyon,
R/o PO Box No.121, Kisli, Kenya. ....Accused persons
Date of Institution: 03.07.2012
Date of Judgment: 07.11.2014
J U D G M E N T
All above named accused persons who are foreigners have been facing trial for offences offences 120B IPC read with Section 467, 474 and 489C, 467 read with Section 34 IPC, 474 red with Section 34 IPC and 489C read with Section 34 IPC.
2. It is case of the prosecution that Special Unit, Crime Branch, Delhi was receiving information from Central Intelligence Agency that a gang of foreigners was indulging in fake passports and visas of African countries, for the foreigners living in India illegally, to send them abroad, by affixing fake stamps of immigration. Since element of security of India was also involved, to develope this information, sources were used.
On 15.02.2012, at 10.00 a.m., a secret informer met SI Ravinder Tewatia at the office of Special Unit, Crime Branch, Sunlight Colony and 2 informed that on that day, at about 11.30 a.m., a person by the name of Gabriel, head of the gang and his companion, namely, Sunday, who could speak and understand Hindi, would come near Golcha Cinema by the side of Netaji Subhashji Marg, in the area of Daryaganj and further that they could be contacted by using code word "obeiu". The information further was that these people could prepare fake travel documents, on being provided a photograph.
SI Ravinder Tewatia discussed the secret information with Inspector Sunil Kumar, who in turn discussed the same with Senior Police Officers. Raiding party consisting of Ct. Devender, SI Ravinder Tewatia, SI Ravinder Verma, HC Ravinder Baliyan, HC Ajay, HC Dinesh, Ct. Rakesh, Ct. Kusum Pal and WCt. Sarita, other staff and the secret informer was constituted. The raiding party then left the office by government gypsy DL1CM4758 and a private car - WagonR. Effort was made to associate persons from the public on reaching the disclosed place at about 10.40 am, but no one came forward.
At about 11.50 a.m., Gabriel and Sunday accused came, on foot from the side of Delhi Gate, and stood on the pedestrian way near Golcha Cinema. Secret informer pointed out towards both of them and then left the party.
SI Ravinder Tewatia asked HC Ravinder Baliyan to act as decoy customer and visit the two accused. The SI then handed over to HC Ravinder three currency notes, each of the denomination of Rs.1000/ and his own passport size photograph. HC Ravinder Baliyan accordingly left the party and 3 reached near Gabriel and Sunday. He talked to both of them and after sometime, delivered the aforesaid currency notes. On return, HC Ravinder told the names of the two accused and that after some hours, they would deliver fake passport in the name of Peter D'souza for travel to Ghana and that they had collected the aforesaid amount of Rs.3000/ and passport size photograph.
It is case of the prosecution that since the aforesaid two accused persons had promised to return to the same place with passport in the name of Peter D'souza to deliver the same their itself, raiding party opted to wait for their return at that very place.
About 3 ½ hours thereafter i.e. at about 4 pm, Gabriel and Sunday accused came on foot and stopped on the pedestrian way leading towards Red Fort, by the side of Golcha Cinema and started waiting. HC Ravinder, the decoy customer, was sent to them to collect the fake passport. The decoy customer accordingly went to these two accused, talked to them, Gabriel accused is alleged to have delivered a fake passport to the decoy customer whereupon the decoy customer gave the stipulated signal. That is how, accused persons were apprehended by the raiding party on reaching that place.
HC Ravinder Baliyan produced before SI Ravinder Tewatia the aforesaid fake passport delivered to him by the accused. The passport had a cover with 4 words "Republic of Ghana Passport" on it. It was bearing no. H 21 07365 on its inner pages.
78 persons from the public were asked to join the party but no one came forward. SI Ravinder Tewatia seized the aforesaid passport after turning the same into parcel after having kept it in an envelope.
Thereafter, personal search of both the accused was conducted. Seven (loose) Indian visa stickers were recovered from the right side pocket of pant which Gabriel accused was wearing. These were also kept in an envelope and seized.
Sunny @ Sunday accused was found in possession of the three currency notes, referred to above, delivered by the decoy customer. He was also found in possession of the (loose) India Visa stickers which were also seized.
Both the accused persons made disclosure statements regarding their involvement and regarding involvement of their coaccused.
All the aforesaid facts were reduced in the form of rukka. Rukka was sent from the spot through Ct. Devender. Further investigation was assigned to SI N. S. Rana, who happened to reach there by then.
In pursuance of their disclosure statement, Gabriel and Sunday accused led the police party led by SI N. S. Rana to the second floor of building no. D116/B, Ganesh Nagar, Delhi. This flat was taken on rent by Caroline @ 5 Mery accused in the year 2011. At the said building, coaccused Augustine, Enwere and Caroline @ Mery were found present.
It is case of prosecution that fake visas were recovered on personal search of the three accused in addition to there respective passports. Caroline @ Mery was found carrying two passports with different names. Search of the flat led to recovery of 114 semi complete passport, 220 currency notes in the form of US$, each of the denomination of 100, 314 fake Indian visa, three hard disks, one pendrive, one printer, 36 passports of different countries. The three hard disks and one pendrive were turned into parcel.
It is also case of the prosecution that on 16.02.2012, Sunday accused in pursuance of his disclosure statement got discovered one Honda City car from H. No. C390, Saraswati Vihar, Delhi. It was seized vide a seizure memo, the reason being that it was disclosed to have been purchased with proceeds of sale of fake passports.
SI N. S. Rana, took steps for verification of genuineness of the seals/ stamps.
It is also case of the prosecution that one Mohd. Akhtar Khan is one of the person promised and offered visa of South Africa by Sunday accused and another on payment of Rs.8000/ from him, but he could not arrange additional amount of Rs.50,000/ demanded by them. Even his original passport was not returned. The passport of Mohd. Akhtar was one of the passports recovered 6 by the police from the tenanted flat.
Material exhibits were sent to CFSL for analysis. Reports were collected.
3. On completion of investigation, challan was put in court. Copies of challan and accompanying documents were supplied to the accused free of costs U/s 207 Cr.P.C. Then, case was committed to Court of Session.
Charge
4. Prima facie case having been made out, charge for offences 120B IPC read with Section 467, 474 and 489C; 467 read with Section 34 IPC; 474 red with Section 34 IPC and 489C read with Section 34 IPC was framed against the accused on 04.03.2013. Additional charge for an offence under Section 14 of Foreigners Act, 1946 was also framed against Sunday accused.
Accused persons pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. To prove its case, prosecution examined following witnesses: PW1 HC Jaipal Singh, Duty Officer PW2 SI Ravinder Tewatia PW3 HC Ravinder Baliyan PW4 Sh. Ravi Gomes PW5 Sh. Deepak Paliwal 7 PW6 WCt. Sarita Yadav PW7 Ct. Govind Singh PW8 Sh. Mohd. Akhtar Khan PW9 Sh. S. Ganesh PW10 Ct. Devender Kumar PW11 SI Nirbhay Singh Rana PW12 Sh. Krishan Lal PW13 Sh. Swatantra Yadav PW14 Sh. Trilok Chand PW15 Ct. Prem Pal PW16 Sayed Arif Hussain PW17 Sh. Ram Chander Motwani PW18 Sh. Umesh Kmar PW19 HC Jag Narain Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused denied all the prosecution allegation narrated by the witnesses and claimed false implication.
Plea put forth by the accused Gabriel reads as under : "I was picked up by the police from H.No.I8/32, Sector 16, Rohini, Delhi at about 5.30 - 6.00 a.m. I was living there with my family since 2009. They inquired from my passport. I went inside and brought my passport and produced the same before the police and it was seized. They searched my house. But nothing was recovered."
8 Plea put forth by the accused Sunday reads as under : "No such recovery was made from me. Actually, I was picked up by the police from my house no.C390, Saraswati Vihar, Pitampura, Delhi on 15.02.2012 between 5/6.00 a.m. I was residing at the said house for the last 18 months. When the police officials who were 1012 in number, knocked at the door of my house, they told me that they were looking for a persons known as Shavesta. I told them that there was no person by that name. Then they inquired from me about my passport. I produced before them my passport. The validity of my passport had expired on 12.12.2011. I could not get the validity extended because of introduction of a new passport and the consequent rush at our embassy. Those people then started searching my house. Nothing incriminating was recovered from my house.
I was keeping my important documents including educational certificates/degrees in a briefcase. Police smashed the briefcase even before I could take up its key. Police took away all my important documents which were lying in the briefcase. Police also took away my Honda City lying parked on the ground floor. My three costly wrist watches and one camera were also taken away by the police. Police took away my computer, my mobile phone of Nokia & of Samsung and other valuable items from my flat. They asked me to accompany them as I was to be questioned. I accompanied them to PS Sunlight Colony.
At the police station, police questioned me as to what relation I had with Bokoharam, a leader of fundamentalist group. I told them that I had no relationship with any such person. I also displayed ignorance about any member of any group of the said leader. Ultimately, I was falsely implicated in this case.
I did not make any such disclosure statement. I knew Gabriel and other citizens of Nigeria including Gabriel, in India as we used to get together on Independence Day of Nigeria.
I or Gabriel did not take the police party to the abovesaid house. Gabriel was brought to the police station subsequent to my arrival at PS Sunlight Colony.
At the time, I was brought to the police station, I saw Caroline, Augustine and Enwere present there.
Police themselves took away my Honda City car on 15.02.2012. This 9 car was purchased by me from the money sent by my parents. I have documents regarding its purchase in my name. I may mention that vehicle does not stand registered in my name."
Plea put forth by the accused Enwere reads as under : "On 15.02.2012, I was sleeping at a flat which was on rent with Caroline my coaccused, who is mother of my daughter. We have not performed any marriage ceremony. At about 5.15 a.m., police came to the flat and took me and Caroline away from that flat for investigation at the police station. Police conducted search of the flat but nothing was recovered. Our passports were checked by the police at the said flat and returned to us.
I visited the flat of Caroline on the night intervening 14/15.02.2012 to take her to hospital for medical check up. I visited this flat only once and that too on that night. I do not know the number of the said flat. I do not know the name of the locality where the said flat is situated. But Caroline was residing in a flat, with her sister Joy. That flat was on rent. But I do not know whether it was on rent with Caroline or with her sister. Caroline was a student during those days but I do not remember the name of the institution where she was studying.
During those days, I used to reside at H.No. 108, Delta II, Greater Noida. I had no concern with flat where Caroline was residing.
I was B.Sc. (Geology) and had got admission in IGNOU as a regular student.
police obtained my signatures on some blank papers at the police station.
Gabriel and Sunday were not with the police at the time, I and Caroline was picked up from the flat. I saw Augustine, Gabriel and Sunday on reaching the police station."
Plea put forth by the accused Augustine reads as under : "On 15.02.2012, police picked up me from the said house at about 7.30 a.m., after having inquired about my name. Then I was detained and falsely implicated in this case. At the police station, the Inspector also 10 inquired from me about my name. The Inspector told me that they were after a person known as John. Inspector said to me that I was John. I denied. I do not know any persons by the name of John. I tried to explain to the Inspector that John is a christian and common name." Plea put forth by the accused Caroline reads as under : "I took flat no.D116/B, Ganesh Nagar, Delhi on rent in October,2011 from Sh. Ravi Gomes, the landlord. My sister Rose Mary was also residing with me at the said flat. Enwere is my husband. We have married without any proper marriage ceremony. In December,2011, I underwent surgery. Since then Enwere started visiting the said flat. He visited this flat on the night intervening 14/15.02.2012. At about 5.00 a.m., on 15.02.2012, police visited my flat. At that time, I and my husband were sleeping there. Police inquired me about my passport. I showed my passport. My husband also showed his passport. But even then police took us from the flat to the police station and we were falsely implicated in this case. No lady Constable was in the police party. The police did not show us any search warrant. On reaching the police station, I found Gabriel, Sunday, Augustine and many others including three women present there. I did not know my coaccused Sunday, Gabriel and Augustine."
Despite opportunity, accused persons opted not to lead any evidence in defence.
7. Arguments heard. File perused.
8. Learned Addl. PP has submitted that from the statement of the prosecution witnesses, it stands established that on 15.02.2012 at 11.50 am Gabriel and Sunday accused came together near Golcha Cinema that HC Ravinder Balyan, decoy customer, as per directions of SI Ravinder Tewatia, 11 handed over photograph of the SI and Rs.3000/ to the two accused for getting a fake passport issued in the name of Peter D'souza of Ghana.
As further submitted, prosecution case stands established that having left with promise to return with a passport the two accused returned to the same place, after 23 hours and handed over passport Ex P1 in the name of Peter D'souza of Ghana, which further establishes that the two accused persons forged this passport Ex P1.
It has also been submitted, on behalf of the State, that Gabriel and Sunday when subjected to personal search were found in possession of fake loosevisastickers, which also establishes involvement of the two accused persons in commission of the crime.
Learned Addl. PP has referred to the statements of the prosecution witnesses no. 2,3,6,10& 11 and contended that prosecution has fully established its case regarding involvement of all the five accused in making of false documents, keeping with them false documents including fake India (empty) Visas, fake passports and fake passports, including fake currency notes in the form of US dollar and forged stamps/seals of Indian immigration and embassy.
Nonjoining of Independent witnesses
9. On the other hand, learned defence counsel has submitted that prosecution case is based on statements of police officials and there is no 12 corroboration from independent source. Further, it has been pointed out that no official or officer was associated by the raiding party or the second Investigating Officer from the offices of DCP or police station Darya Ganj situated nearby.
The contention is that absence of corroboration from independent /other source creates doubt in the prosecution version if any such raid was conducted or accused were apprehended or recovery from them.
It is true that prosecution has examined police officials/officers as regards arrest of that recoveries from Sunday and Gabriel accused near Golcha Cinema and also in respect of other recoveries from D116/B, Ganesh Nagar, Delhi. It is in the statement of PW2 SI Ravinder Tewatia that PS Darya Ganj is at a distance of 100150 meters and office of ACP and DCP (Central) adjoin PS Darya Ganja.
Admittedly, he (PW2) did not make any effort to call anyone from the police Darya Ganj or from the office of DCP and ACP.
It is also in his crossexamination that he asked only passersby to join the party. In other words, he did not ask anyone else to join the party. He also did not issue notice to the persons who refused to join.
The fact remains that there is no independent corroboration to the statements of the prosecution witnesses.
On the point of nonjoining of independent witnesses and 13 evaluation of evidence of police officials in absence of corroboration from independent source, in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." Having regard to all the facts and circumstances of this case and decision in Ajmer's case (supra), this Court proceeds to scrutinize statements of prosecution witnesses with more care and caution, when there is no corroboration from independent source.
10. Secret information is said to have have been received by PW2 SI Ravinder Tewatia. It is in the statement of PW2 that Special Unit, Crime Branch, Delhi was receiving information from Central Intelligence Agency that a gang of foreigners was indulging in fake passports and visas of the foreign 14 living in India illegally, so to send them abroad.
Further. according to PW2, on 15.02.2012, at 10.00 a.m., a secret informer met him at the office of Special Unit, Crime Branch, Sunlight Colony and informed that on that day, at about 11.30 a.m., a person by the name of Gabriel, head of the gang and his companion, namely, Sunday and other members of the gang would come to the pedestrian way, in front of Golcha Cinema, on Netaji Subhashji Marg, in the area of Daryaganj and that if raid was conducted, they could be apprehended. It is further in the statement of PW2 that secret information was to the effect that by using code word "obeiu" fake passport could be got prepared from said Gabriel.
According to PW2, he discussed the secret information with Inspector Sunil Kumar. He then recorded DD no.4 Ex.PW2/A. Then raiding party consisting of Inspector Sunil Kumar, Ct. Devender, SI Ravinder Tewatia, SI Ravinder Verma, HC Ravinder Baliyan, HC Ajay, HC Dinesh, Ct. Rakesh, Ct. Kusum Pal and WCt. Sarita, other staff and the secret informer was constituted. PW2 has proved departure entry DD N. 4, Ex PW2/A and further stated that all of them reached near Golcha cinema at about 10.40 a.m. There, he asked 810 persons from the public to join the party but none of them came forward. He then deployed members of the raiding party.
PW2 has further stated that at about 11.30 a.m., accused Sunday and Gabriel were seen coming from the side of Delhi Gate. Both of them came 15 and stood near Golcha Cinema. Secret informer pointed out towards both of them and then went away.
It further in the statement of PW2 SI Ravinder Tewatia that he asked HC Ravinder Baliyan to act as a decoy customer and visit accused Sunday and Gabriel. As to steps taken in this regard, PW2 has stated that after conducting personal search of HC Ravinder Baliyan, he prepared memo Ex.PW2/E, passed on to him Rs.3000/ and also handed over his photograph to get a passport prepared in the name of Peter D'Souza. Memo Ex PW2/F was prepared in this regard. As further stated HC accordingly left that place and reached where accused Gabriel and Sunday were present.
It is in the statement of PW2 that HC Ravinder Baliyan talked to accused Sunday and Gabriel to get the passport prepared in the name of Peter D'Souza for Ghana, paid Rs.3000/ to accused Sunday, and that accused Sunday and Gabriel assured to hand over passport to him in the name of Peter D'Souza, after 23 hours at the same place. Thereupon, HC Ravinder Baliyan returned to the place where members of the party were present and told them about the deal. All of them then waited for return of accused Gabriel and Sunday.
It is further in the statement of PW2 that at about 4.00 p.m., accused Sunday and Gabriel returned to the place near Golcha Cinema. HC Ravinder Baliyan went to both of them. At that time, accused Gabriel handed over to 16 him a passport in the name of Peter D'Souza of Ghana. Then the HC gave stipulated signal to other members of the party, by passing his right hand over his head.
Learned defence counsel has pointed that as per prosecution version secret information was to the effect that in case word "obieu" was referred by way of reference for dealing on the point of issuance of fake passport and Indian fake visa to cross the border, the deal could be struck, for fake travelling documents.
Reference has been made to statement of PW3 HC Ravinder who is stated to have acted as a decoy witness, to point out that nowhere he stated about this code 'obieu". The contention is that in absence of the code how could he contact any such person for the purpose of issuance of fake passport and fake visa.
It is true that secret information, as available in rukka Ex PW2/D was that for reference code 'obieu' was to be issued. It is also true that according to PW3 HC Ravinder Baliyan, SI Ravinder Tewatia apprised them of the secret information, but he has not stated about any code "obeiu" or to have used it at the time he contacted Gabriel and Sunday accused. This creates doubt in the prosecution version that if PW3 was a member of the raiding party which was constituted on 15.02.2012 and he struck any such deal with two accused Gabriel and Sunday, without using the code "obeiu"
17
PW3 HC Ravinder Baliyan, the decoy customer has stated that on reaching near Gabriel and Sunday accused, he talked to them and expressed that he wanted passport in the name of Peter D'souza. He paid them Rs. 3000/. These currency notes and a photograph stated to have been delivered to him by SI Ravinder Tewatia.
For the purpose of preparation of a passport, not only name but other particulars of the person like his parentage, name of wife, age, address and nationality are also required. Had SI Ravinder Tewatia intended to get any such passport prepared from the two accused, he must have apprised the decoy customer about all these other particulars also. Herein SI Ravinder Tewatia and others wants the Court to believe that only name of Peter D'souza was told the decoy customer for being communicated to the two accused to get a passport prepared. It is not believable that in absence of communication of any other particular of Peter D'souza, any of the accused would have agreed to return with a fake passport in the name of Peter D'souza.
As noticed above present case came to be registered on the basis of rukka Ex PW2/D said to have been despatched from the spot.
Surprisingly, in the rukka, there is no mention that SI Ravinder Tewatia told the decoy customer any other particulars as to in whose name passport is to be got issued, what to say any other particulars.
Ex PW2/F is the memo prepared by SI Ravinder Tewatia for delivery of 18 the three currency notes and his passport size photographs to HC Ravinder Balyan who was to act as a decoy customer. There is no mention even in this memo as to in whose name passport was to be got issued and as to what were the other particulars of the person for whom it was to be got issued.
In such like cases, to prove conversation between decoy customer and the accused, generally a shadow witness is also sent to overhear conversation. Admittedly, herein no member of the party was deployed as shadow witness to overhear the conversation between HC Ravinder Balyan and Gabriel & Sunday.
PW3 HC Ravinder Balyan has not narrated the conversation that took place between him and the two accused. What he stated in this regard is that he went to both the accused talked to them that he wanted a passport in the name of Peter D'souza, paid Rs.3000/ and the photograph and they agreed. It is not believable that in absence of any other particulars of Peter D'souza, any of the accused would have agreed to prepare a passport.
Case of the prosecution is that other members of the party were at very short distance from the decoy customer and the two accused so as to say that they overheard conversation between the accused and the decoy customer. But none of them has narrated as to what was over heard by them.
11. As per prosecution version Gabriel and Sunday accused are stated to have left the spot near Golcha Cinema with promise to return with a fake 19 passport. Their phone number or other particulars were not obtained before they left. It also remains unexplained as to why none of the members of the raiding party chased them to see as to where they were to go and which was the place where the job of fake documents including passport was being done. This fact further creates doubt in the version of the prosecution that the party allowed them to go simply on their promise to return there after 23 hours.
12. It is in the statement of PW2 SI Ravinder Tewatia and PW3 H C Ravinder Balyan that both accused returned at about 4 pm whereupon PW3 went to them and collected passport Ex P1. PW3 then gaven sign whereupon other members of the party reached the place where Gabriel and Sunday were present with HC Ravinder Baliyan and that they apprehended both of them.
Further according to PW2, personal search of accused Gabriel led to recovery of seven loose Indian visa stickers from the right side pocket of his pant. Personal search of accused Sunday led to recovery of five visa stickers and Rs.3000/ in the denomination of three currency notes of Rs.1000/ each. According to PW2, SI Ravinder Tewatia these visa stickers and the currency notes were seized vide memos Ex.PW2/B and Ex.PW2/C. The currency notes worth Rs.3000/ are Ex.P2 (collectively). PW3 has made statement on same lines.
As per prosecution version, on personal search of Gabriel accused, his passport was recovered and it was seized vide separate memo Ex PW3/L. 20
13. Learned defence counsel has contended that personal search of Gabriel accused is stated to have been conducted near Golcha Cinema, but his personal passport is not shown to have been recovered from him by SI Ravinder Tewatia and rather the same has been shown to have been recovered from him by SI N. S. Rana.
It is true that PW11 SI N. S. Rana has deposed about recovery of passport of Gabriel accused on his personal search conducted by him, by stating that he arrested Gabriel accused vide memo Ex PW3/E and conducted his personal search vide memo Ex PW3/E1.
Ex PW2/C is the personal search memo of Gabriel prepared by SI Ravinder Tewatia. It pertains to recovery of 7 visa stickers from him at the time of his personal search but this memo does not depict recovery of personal passport of Gabriel.
If personal passport of Gabriel was recovered by SI N. S. Rana, on his personal search, it remains unexplained as to why the same was not taken over by SI Ravinder Tewatia particularly when it was disclosed in the secret information that the accused persons were indulging in fake passports.
Therefore, it cannot be said with certainty that personal passport of Gabriel was seized by SI N. S. Rana on his personal search by him.
14. PW2 SI Ravinder Tewatia prepared rukka Ex.PW2/B and handed over the same to Ct. Devender who left for the Police Station. 21
It is in the statement of PW11 SI N. S. Rana that on 15.02.2012, at about 6.306.45 pm, while he was present at his office, he was informed by Inspector Sunil Kumar that they had apprehended two persons with fake visas and passports and that he should reach near Golcha Cinema, Darya Ganj for investigation.
At about 8 pm, he (PW11) reached the disclosed place and found Inspector Sunil Kumar, SI Ravinder Tewatia, SI Ravinder Verma, HC Ravinder Baliyan, HC Ajay, HC Dinesh, Ct. Devender, Ct. Kusumpal and WCt. Sarita & Gabriel and Sunday accused present.
Learned defence counsel has contended that although as per prosecution Inspector Sunil Kumar was member of the raiding party, neither any document was got attested from him at the spot nor he was cited as a witness, which creates doubt in the prosecution story if any such raid was conducted, particularly when PW2 SI Ravinder Tewatia has contradicted the version narrated by PW11 SI N. S. Rana in this regard.
It is in the statement of PW2 SI Ravinder Tewatia that raiding party included Inspector Sunil Kumar. In his cross examination, he stated that Inspector Sunil Kumar left the spot at about 4 pm. He admitted to have not got attested any document from Inspector but explained that he was merely supervisor and as such his attestation was not obtained. 22
At the same time, he stated that during the period, he did writing work near Golcha Cinema, Inspector Sunil Kumar was not present there. In the subsequent sentence, he tried to explain that SI N. S. Rana reached near Golcha Cinema at about 4 pm and by then Inspector Sunil Kumar had left. According to him, rukka was sent at about 8 pm. He conducted all these proceedings near Golcha Cinema from 4 pm to 8 pm. PW11 SI N. S. Rana is stated to have reached the spot at about 8 pm and found present there the two accused namely Gabriel and Sunday and other members including Inspector Sunil Kumar. According to PW11, Inspector Sunil Kumar was present at the spot even at 8 pm. So, what PW2 has stated in this regard is contrary to PW1.
Rukka was despatched from the spot at about 8.10pm. By then memos Ex PW2/B, C, E, F and G i.e. pertaining to personal search of the decoy customer, delivery of photograph and currency notes to the decoy customers, recovery of fake passport from Gabriel and Sunday, 7 visas stickers and 5 visas from Sunday accused had been prepared.
Accused persons are stated to have returned to the spot with fake passport at 4 pm. It is not believable that Inspector Sunil Kumar, who opted to supervise the proceedings stayed there for 23 hours, even in absence of the two accused i.e. after they had left from near Golcha Cinema with passport size photograph and currency notes, opted to leave the spot at the requisite 23 time i.e. at about 4 pm, just when the accused arrived. This creates doubt in the version of the prosecution that Inspector Sunil Kumar was member of the raiding party. From nonattestation of any of the aforesaid memos by Inspector Sunil Kumar, prepared at the spot and nonciting of Inspector as a witness it becomes doubtful if Gabriel and Sunday accused were so apprehended on the given date, time and place.
As per seizure memo Ex PW2/G, fake passport Ex P1 was recovered from the two accused, but the contents of this document also creates doubt in the version of prosecution with regard to recovery of the passport from the two accused. Firstly, it is not possible that both the accused persons were carrying one forged passport. Secondly, PW3 has contradicted this version. According to PW3 HC Ravinder Balyan, who acted as decoy customer, at about 4 pm both the accused returned near Golcha Cinema, whereupon be went to them and Gabriel accused handed over one passport in the name of Peter D'souza. Thereupon, he gave stipulated signal to other members of the party by placing his over his head. So, passport Ex PW1 should have been produced by PW3 and not recovered from any of the accused.
Even in rukka Ex PW2/D, it stands recorded that when the decoy customer was sent to the two accused, on their return near Golcha Cinema at about 4 pm, he talked to both of them and the person namely Gabriel handed over to the decoy customer. But it does not stand recorded "as to what was 24 handed over by Gabriel accused to the decoy customer. All this creates doubt in prosecution story about the recovery of passport Ex P1.
Recovery of visa stickers from Sunday and Gabriel accused.
15. As per prosecution version, personal search of the accused Gabriel led to recovery of 7 loose Indian Visa Stickers from the right side pocket of his pant. Sunny @ Sunday accused, when subjected to personal search, was found in possession of 5 (loose) Indian Visa Stickers. Furthermore, the aforesaid currency notes, each of the denomination of Rs.1,000/ were recovered from Sunday accused. PW2 SI Ravinder Tewatia has deposed about these recoveries and proved memos Ex PW2/B and C. PW3 HC Ravinder Balyan has also deposed about recovery of 7 (loose) visa stickers from Gabriel and 5 (loose) visa stickers with Rs.3000/ from Sunday accused. He has also proved his attestation on memos Ex PW2/B and C. In her crossexamination PW6 WCt. Sarita stated that at the time they had left PS Crime Branch on 15.02.2012, she was told that a lady was also to be apprehended. It is significant to note that in the secret information it was not disclosed that any female was also member of the gang indulging in such crime.
PW6 WCt. Sarita was also a member of the raiding party. As per prosecution version, secret information was not that any female was also 25 indulging in making of false passport. Then, why PW6 was taken along? According to PW2 SI Ravinder Tewatia has tried to explain that he had taken along the lady Ct. Sarita along keeping in view that area of Golcha Cinema is well populated area, so as to control females during the raid. This is not a satisfactory explanation.
Further, according to PW2, lady constable Sarita (PW6) took position with Inspector Sunil Kumar. As noticed above, Inspector Sunil Kumar has not been cited as a witness. No document was got attested from him. Similarly, no document prepared near Golcha Cinema was got attested from WCt. Sarita.
As regards, writing work done near Golcha Cinema, surprisingly, in her chiefexamination, PW6 did not depose about the arrival of the two accused, they having been contacted by decoy customer, delivery of currency notes and passport size photograph, departure of the two accused, their return to the spot after three hours and recovery loose Indian visa stickers.
Only when she was crossexamined on behalf of the accused, she stated that SI Ravinder Balyan was asked to act as a decoy witness, he went to the two accused and on return told that two accused had asked him to come after 45 hours.
She also did not state anything about return of the two accused person near Golcha Cin and recoveries of fake passport currency notes, loose Indian Visa Stickers from them.
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She could not tell as to what was recovered on the personal search of the two accused near Golcha Cinema.
She further stated in her crossexamination that she saw Gabriel and Sunday accused near Golcha Cinema for the first time at 4 pm. If this version of the witness is believed, same strengthens the doubt if the two accused persons had earlier reached near Golcha Cinema and received Rs.3000/ and passport size photograph from the decoy customer and if she (PW6) was member of raiding party near Golcha Cinema.
Recoveries from D116/B, Ganesh Nagar, Delhi
16. According to PW11 SI Nirbhay Singh Rana (N. S. Rana) during interrogation, Gabriel and Sunday accused made disclosure statements. They disclosed that they had taken on rent one Flat on the second floor of building no.D116/B, Ganesh Nagar, Second Floor, Delhi and that they used to prepare fake passports, visa and fake currency & other relevant documents with the aid of computers and printers, etc. Both the accused offered to get their co accused apprehended from the rented premises and to get recovered incriminating material.
According to PW11 SI N. S. Rana, Gabriel and Sunday accused made disclosure statements Ex PW11/A and Ex PW11/B. He explained that firstly statement of Gabriel accused was recorded and thereafter that of Sunday was recorded. It was disclosed by them that they had taken on rent one flat on the 27 second floor of building no. D116/B, Second Floor, Ganesh Nagar, Delhi where they used to prepare fake passport, fake visa and fake currency and other documents with the aid of computer and printers. Both of them offered to get apprehended their coaccused and to get recovered incriminating material from the tenanted premises.
As per statement of PW11, both these statements were recorded near Golcha Cinema and got attested from witnesses. It may be mentioned here that Ex PW11/A is the disclosure statement purported to have been made by Gabriel and Ex PW11/B is the disclosure statement purported to have been made by Sunday accused. These bear attestation of HC Ravinder Balyan, who earlier acted as decoy witness.
As per prosecution version, SI Ravinder Tewatia, was not present at the time these disclosure statements were made.
It may be mentioned here that PW3 HC Ravinder Balyan has nowhere deposed about any disclosure statement made by Gabriel and Sunday in his presence. Had any disclosure statement been made by either of these two accused, PW3 would not have omitted to state about the same.
He was examined inchief, firstly, on 06.07.2013 and, thereafter, on 24.07.2013. On 24.07.2013, he continued with his chiefexamination from the stage of arrival of SI N. S. Rana. According to PW3, from the spot near Golcha Cinema, in the company of Gabriel and Sunday, they reached H. No. 28 D116/B, Second Floor, Ganesh Nagar, Delhi and apprehended the remaining three accused present from there. The fact remains that he did not depose about making of disclosure statement by the two accused.
PW6 WCt. Sarita Yadav was also a member of the raiding party. Both the accused persons are stated to have been apprehended in her presence. In case any disclosure statement was made, she would have also stated about the same. But a careful perusal of her statement would reveal that she did not state in her chiefexamination about making of any disclosure statement by the two accused. Only in crossexamination she stated that disclosure statements were recorded at about 10.30 pm. But it is not case of the prosecution that any disclosure statement was made by any of the accused at about 10.30 pm. She even could not identify Gabriel and Sunday from the accused persons present in Court, though she pleaded lapse of time of two years being unable to identify them.
It is not in the statement of this witness that Gabriel and Sunday accused took their party to the aforesaid house. It further creates doubt if Gabriel and Sunday made any disclosure statement or took the party headed by SI N. S. Rana from near Golcha Cinema to the house in Ganesh Nagar. As a consequence, it remains unexplained as to who took the party headed by SI N. S. Rana to H. No. D116/B, if not led by Gabriel and Sunday.
It is significant to note that according to this witness from near Golcha 29 Cinema they reached H. No. B116, Ganesh Nagar, Delhi where two gents and one lady were found present. The house number stated by her is not correct. She corrected herself in this regard only when leading question was put to her. It may be mentioned here that while identifying the two gents apprehended from H. No. B116, firstly she pointed out towards Gabriel and Augustine as the two persons apprehended from there, but in the very next sentence, she stated that Gabriel was apprehended from near Golcha Cinema.
As regards identity of Sunday accused, witness was put leading questions by learned Addl. PP and the accused was shown to her but even then she could not identify him as the person apprehended from near Golcha Cinema.
17. As per prosecution version accused Caroline @ Mery, Kelvine Enwere and Augustine John were found present at H. No. D116/B, Ganesh Nagar, Delhi and different items including hardware and documents are stated to have been recovered from there.
It is further in the statement of PW11 that both the accused persons led the police party to the flat on the second floor of building no. D116/B, Ganesh Nagar, Second Floor, Delhi. On reaching, there they found three persons, including one lady, present at the said flat. Accused Gabriel and Sunday disclosed identity of their associates, namely Augustin, Enwere and Caroline @ Mery.
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Formal search of all these three persons namely Augustin, Enware and Caroline @ Marie was conducted. All of them were found in possession of fake visas and their respective passport.
According to PW11, search of the premises conducted by his team led to recovery of 114 semi complete passports; 220 currency notes in the form of US Dollars of 100 each; 314 fake Indian Visas; three hard disks; one pendrive; one printer; water marks; yellow pages and raw material, 36 passports of different countries and 61 stamps. He prepared list of the currency notes. The 3 Hard Disks and one pendrive seized from there were turned into separate parcels, given Mark 1 to 4, and sealed by him with seal bearing impression NSR. All the items recovered from the premises were seized vide memo Ex PW3/K. Arrest memo of accused Caroline is Ex PW3/G, that of Augustin John is Ex PW3/H and that of Enware is Ex PW3/J. Accused Caroline was subjected to personal search by WCt. Sarita vide memo Ex PW6/A; that of accused Enware is Ex PW3/J1 and that of Augustine John is Ex PW3/H1.
As notice above, PW6 WCt. Sarita was also member of the raiding party. According to her, on personal search of Caroline @ Mery nothing was recovered from her. She has proved personal search memo Ex PW3/G prepared in this regard. But only in the next sentence she stated that two passports and three Indian loose visas recovered from the purse she was 31 carrying. She has proved her attestation on search memo Ex PW3/C prepared in this regard.
PW3 HC Ravinder Balyan has also deposed about recovery of two passports and three visa stickers on personal search of Mery, three blank visa stickers from the personal search of Kelvin Enwere and 4 blank visa stickers from the personal search of Augustine John. He has proved memo Ex PW3/A, B and C in this regard.
It may be mentioned here that memos Ex PW3/A and B regarding recovery from Kelvin Enwere and Augustine John do not bear attestation of lady Ct. Sarita. There is no explanation as to why these two memos were not got attested from her, in case she was also member of the raiding party.
On the point of identity, PW6 WCt. Sarita, initially identified Augustine and Gabriel as the accused apprehended from H. No. B116, but subsequently changed her testimony by stating that Gabriel was apprehended from near Golcha Cinema. At the same time, she expressed that she could not identify the other person apprehended from the said house. She was put leading questions but even then she could not say if Enwere was one of the persons apprehended from the said house.
In her crossexamination PW6 WCt. Sarita could not tell number of seizure memos prepared. She even could not tell as to at what time secret informer left their party. Witness displayed ignorance as to what items 32 recovered from the other two accused Augustine and Enwere.
In the very next sentence, she stated that recoveries were made from other two accused at Ganesh Nagar but she did not know what was recovered from them.
Had any recovery of hardware and documents been made from H. No.D116/B, seizure memos must have been got attested from lady Ct. Sarita. Seizure memo Ex PW3/K regarding recovery of hardware items and other document including passport. It bears attestation only of HC Ravinder Balyan. It does not appear attestation of lady constable. Similarly, seizure memo Ex PW3/D regarding seizure memo of fake dollars, bears attestation only of HC Ravinder Balyan and not of WCt. Sarita.
It remains unexplained as to why these two important documents do not bear attestation of the lady constable and same creates doubt in the prosecution version if any such raid was conducted at H. No. D116/B on 15.02.2012.
Even rough site plan Ex PW11/C prepared by SI. N. S. Rana does not bear attestation of any member of the raiding party.
18. Section 100 (4) CrPC provides 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 searched is situate or of any other locality if no such inhabitant of the said locality 33 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."
Herein, as per PW3, party headed by SI N. S. Rana reached H. No. D116/B at about 10 pm but no one from the public was associated in the party before conducting raid at the house.
PW11 SI N. S. Rana has admitted in his crossexamination to have not asked any person from the other flats of the same building to join the party. He could not tell as to who had opened the door of the flat. In the given circumstances, when there was ample opportunity with the police to join persons from the locality. Nonjoining of public witness creates doubt in the prosecution version regarding the raid and recovery from the said house.
19. It is also significant to note that SI N. S. Rana did not seal all the items which are stated to have been recovered from the aforesaid house. Admittedly, he sealed only hard disk and one pen drive. After sealing these two items, he stated to have handed over the seal to constable but in his crossexamination, he could not tell name of the constable. He also displayed ignorance if he had recorded this fact of delivery of seal in any document. For nonsealing of the remaining items he furnished explanation that he deposited the same in the malkhana of Crime Branch for the purpose of security. Same were sealed by him. At that time, he was having his seal with him. He further 34 admitted that after use of the seal, he retained the seal with him and did not hand over the same to anyone. But he admitted not have prepared any document in this regard. All this creates doubt in the version of prosecution regarding raid and recoveries.
20. When the prosecution version regarding raid and recoveries is doubtful, statements of all other witnesses to whom different documents were sent for verification of their genuineness do not help the prosecution.
21. PW8 Mohd. Akhtar Khan is one of the person promised and offered visa of South Africa by Sunday accused and another on payment of Rs.8000/ from him, but he could not arrange additional amount of Rs.50,000/ demanded by them. Even his original passport was not returned. The passport of Mohd. Akhtar is stated to be one of the passports recovered by the police from the tenanted flat.
It may be mentioned here that during investigation SI N. S. Rana did not visit any such hotel for the purpose of corroboration to the statement of PW8.
There is no corroboration to the statement of PW8 that he actually visited any such hotel stayed there or there was opportunity to him to pay Rs. 8000/ to Sunday accused. No evidence was collected by the IO regarding arrival of PW8 in Madurai. No CDR were collected to show that any conversation took place between Sunday accused and PW8 Mohd. Akhtar. In absence of any corroboration, it is difficult to hold that Sunday and another met 35 PW8 at any such hotel or charge any amount or promised for issuance of any passport.
22. One of the allegations levelled by the prosecution is that the Honda City car seized from Sunday accused is the result of proceeds on sale of fake passports and fake visas. Prosecution has not led any evidence in this regard. Therefore, this allegation also falls to the ground.
23. Sunday, accused, was also chargesheeted for offence under Section 14 of Foreigners Act. In this regard, there is nothing in the statement of IO PW11 that he contacted Embassy of Nigeria to inquire about passport of this accused or the validity thereof or the validity of the visa. No witness from the Embassy of Nigeria was cited as a witness or examined in Court.
In absence of any cogent and convincing evidence, this Court holds that prosecution has failed to substantiate even this accusation leveled against Sunday accused.
Conclusion
24. In view of the above discussion, this Court finds that prosecution has failed to prove its case beyond reasonable doubts and as such all the accused persons are acquitted in this case of all the charges framed against them.
Honda City car be released to Sunday accused against receipt and proper identification. Valid passports of each accused, other than Sunday, be released as per rules. Personal search items of the accused persons (other 36 than case property) be released to them, as per rules and on proper identification.
Fake documents including passport, loose visa stickers and currency notes be destroyed in accordance with law.
Accused persons have not claimed any of the other case property. As such, the same is confiscated to State in accordance with law on expiry of period for filing of appeal/revision petition or subject to decision thereof.
File be consigned to Record Room.
Announced in Open Court
on 07.11.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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