Delhi District Court
State vs . Sunil Kumar Etc. on 26 August, 2011
State Vs. Sunil Kumar etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 04/2009
State Vs. : 1. Sunil Kumar
S/o Sh. Raghunath Singh
R/o P189, Krishan Vihar near
Mangol Puri, Delhi.
2. Sudhir Kumar Singh
S/o Sh. Gorakh Nath Singh
R/o F7/45, IInd floor, Sec16,
Rohini
Previously R/o E24C, Krishna
Vihar, Delhi41.
3. T. A. Krishnamurthy
S/o Sh. T.S.A. Shetty
R/o Flat No. 5, IIIrd floor,
Tulabara Apartment, K.G.
Nagar, Bangalore19.
4. Mahender Pal
S/o Sh. Ram Swaroop
R/o 1056, 12 ½ yards, Raghuvir
Nagar, Delhi27.
SC No. 04/2009 1/43
State Vs. Sunil Kumar etc.
Previously R/o WZ576, Kacha
Tihar Village opposite Shiv
Mandir and Tihar.
FIR No. 126/2000
P.S. Defence Colony
U/s 489B/489C/34 IPC
Date of Institution : 11/05/2000
Date when arguments
were heard : 16/08/2011
Date of Judgment : 26/08/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief, the facts of the prosecution case are as follows: ASI Karamveer Singh with Ct Mahesh and Ct Mahi Lal was on patrolling duty on 20/2/20000 and they reached Defence Colony Market at 6.30 pm. Secret informer met ASI Karamveer Singh there and informed him that a person having large quantity of counterfeit currency notes is willing to give them to some party on SC No. 04/2009 2/43 State Vs. Sunil Kumar etc. half of the price and is standing near Gumbad, opposite office of Corporation and can be apprehended on raid. ASI Karamveer Singh requested many passers byes for joining raiding party but none agreed and all left disclosing their reasonable inability without telling their names and addresses. Without wasting time, ASI Karamveer alongwith accompanying staff organized raiding party, reached opposite Corporation Office. At opposite park, on the pavement, accused Sunil Kumar was apprehended on pointing out by the secret informer at about 7.15 pm. Members of the raiding party offered themselves for search to said accused Sunil Kumar who refused to search them and readily agreed for his search. From the left inner pocket of worn coat of accused Sunil 33 counterfeit currency notes of Rs 100/ denomination bearing number 6GL 889331 and 67 counterfeit currency notes of Rs 100/ denomination bearing number 9 BML 383042 which were having uneven ink impression, security thread silver colour impression affixed, on which apparently effort was made to show water marks were recovered. From amongst those counterfeit currency notes, one each of the two different numbers of the currency notes were got photocopied; then those currency notes SC No. 04/2009 3/43 State Vs. Sunil Kumar etc. were seized. ASI Karamveer Singh wrote tehrir, gave it to Ct Mahesh for getting FIR registered. Case FIR No. 126/2000 at police station Defence Colony was registered for offence under Section 489 C IPC.
Matter was investigated. Pursuant to disclosure statement of accused Sunil Kumar, accused Pankaj was arrested at Defence Colony Market and from the possession of accused Pankaj, 204 counterfeit currency notes of denomination of Rs 100/ were recovered and seized.
Pursuant to disclosure statement of accused Pankaj, accused Pankaj led the police party in the night of 22/2/2000 to H. No. P60, Krishna Vihar, Delhi, house of accused S.K Singh from where one counterfeit currency notes of Rs 500/ denomination and six counterfeit currency notes of Rs 100/ denomination were recovered and seized in early hours of 23/02/2000. Accused S.K Singh was arrested. Pursuant to disclosure statement of accused S.K Singh, said accused led the police party to Tis Hazari Court at Chamber No. K41, Western Wing from where he got recovered 85 counterfeit currency notes of Rs 100/ denomination which were seized in the early morning of 23/02/2000.
SC No. 04/2009 4/43
State Vs. Sunil Kumar etc. On 23/02/2000 in the morning police party reached house of accused T.A Krishnamurthy bearing no. 107, Narayan Nagar, Laxmi Nagar, Delhi and apprehended him and from right pocket of his worn pant recovered six counterfeit currency notes of Rs 100/ denomination which were seized.
Pursuant to disclosure statement of accused Pankaj, he led the police party on 24/02/2000 to opposite Bhagwan Mahavir Hospital, Rohini from where the police party apprehended accused Harbans Singh Sandhu @ Balbir Singh on the pointing out of accused Pankaj and from his possession 36 counterfeit currency notes of Rs 100/ denomination were recovered and seized.
Pursuant to disclosure statement of accused T.A Krishnamurthy, said accused led the police party on 25/02/2000 to Indian Restaurant at Karol Bagh from where accused Inderjeet Singh was arrested. Said accused Inderjeet opened his Mercedez car No. DIC266 from whose dash board he got recovered polythene containing counterfeit currency notes of Rs 500/ and Rs 100/, on checking of which they were found to be amounting to Rs 14,800/, which were seized. Accused Inderjeet led the police party to store SC No. 04/2009 5/43 State Vs. Sunil Kumar etc. inside of kitchen of Indian Hotel from where he got recovered two machines of Hewlett Packard Office Jet Pro saying that these machines were used for printing counterfeit currency notes. Said machines were seized.
On pointing out of accused T.A Krishnamurthy, accused Mahinder Pal was also arrested from Karol Bagh on 25/02/2000 and from inner pocket of his worn coat 10 counterfeit currency notes of Rs 500/ denomination and 45 counterfeit currency notes of Rs 100/ denomination were recovered and seized.
Pursuant to disclosure statement of accused T.A Krishnamurthy, said accused led the police party on 26/02/2000 to his house at N107, Narain Nagar, Laxmi Nagar, Delhi. From the bed placed in the bedroom accused Krishnamurthy got recovered 60 counterfeit currency notes of Rs 500/ denomination and 12 counterfeit currency notes of Rs 100/ denomination which were seized.
On 29/02/2000, accused Harbans Singh led the police party to his house at G49, Sant Nagar, Delhi and got recovered three counterfeit currency notes of Rs 500/ denomination and two SC No. 04/2009 6/43 State Vs. Sunil Kumar etc. counterfeit currency notes of Rs 100/ denomination which were seized.
2. On completion of the investigation, charge sheet was filed.
3. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
4. In terms of order on charge dated 15/12/2000 of my Ld. Predecessor later on 12/03/2001 charges were framed against all the accused persons for offences punishable under Sections 489B/489C IPC read with Section 34 IPC to which the accused persons pleaded not guilty and claimed trial.
5. In the course of trial accused Harbans Singh expired and against him proceedings were abated vide order dated 16/03/2005 of my Ld. Predecessor.
SC No. 04/2009 7/43
6. Also during course of trial accused Inderjeet Singh pleaded guilty and was sentenced on 11/12/2007 by my Ld. Predecessor.
7. Also during course of trial accused Pankaj pleaded guilty and was sentenced on 23/04/2009 by my Ld. Predecessor. WITNESSES:
8. In order to connect the remaining accused persons namely Sunil Kumar, Sudhir Kumar, T.A Krishnamurthy and Mahinder Pal with the offences charged, the prosecution has examined in all 8 witnesses namely PW1 Ct Mahesh Kumar; PW2 HC Kanhaiya Lal; PW3 Ct. Mahilal Singh; PW4 Ct. K. Prasanna; PW5 SI Karamveer Singh; PW6 SI Ugesh Kumar; PW7 Sh S.K Gaur and PW8 Sh S. Chakrapani.
STATEMENT OF ACCUSED:
9. Thereafter the accused persons were examined under Section 313 Cr.P.C wherein they pleaded innocence and false SC No. 04/2009 8/43 State Vs. Sunil Kumar etc. implication.
9A(i) Accused Sudhir Kumar submitted that Pankaj, accused of this case contacted him for bail matter of accused Ravi Jaina in case FIR No. 113/2000, P.S Daryaganj, under Section 489B IPC and said case was registered on 10/02/2000. Accused Sudhir Kumar further stated that he appeared as advocate for said accused Ravi Jaina in said case and said accused was granted bail on 15/02/2000; Pankaj, accused of this case gave him his documents for standing surety for accused Ravi Jaina in that case. Accused Sudhir Kumar stated that he presented the bail bond of said accused Ravi Jaina with surety Pankaj and said bail bond was sent for verification. Accused Sudhir Kumar submitted that on the next day, Pankaj did not turn up, so the bail bond was rejected and he informed said Pankaj by pager; that evening police apprehended him. Accused Sudhir Kumar Singh submitted that he was not given his balance fee of Rs 14,000/ out of the agreed fees of Rs 15,000/ by said Pankaj who only gave him only Rs 1,000/ as part fee regarding which he had dispute with him; Pankaj had earlier also threatened him that he had contacts with various officials and he will falsely implicate Sudhir Kumar Singh SC No. 04/2009 9/43 State Vs. Sunil Kumar etc. and in the said bail matter of Ravi Jaina, the accused Sunil, an advocate by profession was his associate. Accused Sudhir Kumar submitted that he and Sunil both have been falsely implicated in this case at the instance of Pankaj.
9A(ii) Accused T.A Krishnamurthy submitted that he only knew Pankaj and he was doing share broking business. Accused T.A Krishnamurthy further submitted that during 199899, Pankaj had sold some of the stolen shares in which he had suffered financial loss of around Rs 40,000/ and he had a dispute in this connection with Pankaj and due to this Pankaj got him falsely implicated in this case; he was retired from Air Force as Sergeant after serving 15 years with clean record, drawing his pension. Accused T.A Krishnamurthy further stated that he was lifted from near ITO, where he was with his friends namely Vimal and Mr. Ahuja for some work and Pankaj gave him a message in his pager to settle his dispute of account; there Pankaj came alongwith some persons who were in civil clothes and from there he was taken into custody and was falsely implicated in this case. Accused T.A Krishnamurthy further submitted that thereafter he came to know that Pankaj was facing several cases of SC No. 04/2009 10/43 State Vs. Sunil Kumar etc. selling fake Indira Vikas Patras and stolen shares in various courts of Delhi.
9A(iii) Accused Mahinder Pal submitted that he was manufacturing plastic products through plastic granules; Harbans Singh Sandhu used to visit him at his factory at Raghuvir Nagar, DDA Complex, 857, bus stand; the said Harbans Singh Sandhu had a shop of plastic granules and he requested him for supply of plastic granules through his brother. Accused Mahender Pal further submitted that he had the transaction in respect of the plastic granules regarding which there was some dispute regarding the payment to the brother of Harbans Singh Sandhu; Harbans Singh Sandhu called him at Rajouri Garden near Wimpy Restaurant and he reached at the said place alongwith Ashok Rana on 22/02/2000 at about 1.30 pm where Harbans Singh Sandhu alongwith four other persons were sitting in a black coloured taxi, he was called in the taxi and thereafter he was taken to Defence Colony police station and falsely implicated in this case.
SC No. 04/2009 11/43
State Vs. Sunil Kumar etc. DEFENCE EVIDENCE 9B Accused Sunil Kumar denied to lead defence evidence. Other accused led the defence evidence.
9B(i) DW1 Ashok Rana; DW2 Om Parkash Ahuja and DW3 Mahinder Pal accused himself under Section 315 Cr.P.C are the examined witnesses in defence.
ARGUMENTS
10. I have heard the arguments of Ld. Addl. PP for the State, Ld. Defence counsel and have perused the material on record and given my thoughtful consideration.
10(i) Ld. Addl. PP argued that large number of counterfeit currency notes were recovered from the possession of accused persons and several of them were of the bunch of the same series number, for which inference has to be drawn that the accused persons were in conscious possession of these counterfeit currency notes with the knowledge and reason to believe the same to be forged and counterfeit and for which possession no justifiable explanation has come forth. SC No. 04/2009 12/43
State Vs. Sunil Kumar etc. Since currency notes of similar series passed through several hands of the accused persons, it clearly implied and was suggestive of use of these currency by the accused persons, bringing into fore, the common intention shared by the accused persons as once these counterfeit currency notes are circulated and so recovered then inference is to be drawn of common intention.
It was also argued by Ld. Addl. PP that the police officials, recovery witnesses were nursing no grudge against the accused persons to falsely implicate them and when the entire evidence on record is considered in totality the cumulative effect is that the prosecution has been successful in proving its case against the accused persons, beyond reasonable doubt.
10(ii) Ld. Defence counsels argued that the testimonies of the material witnesses viz. police officials are suffering from material contradictions and severe infirmities going to the root of the matter which check the basic version and core of the prosecution case; in the backdrop of the fact that all through on several days of investigation despite admitted availability no independent witnesses have been SC No. 04/2009 13/43 State Vs. Sunil Kumar etc. joined in the investigation, apprehension of the accused, the stated searches and seizures while the investigation lacks fairness, but instead it is proved on record that accused had been falsely implicated, the case property planted upon them. Ld. Defence Counsels prayed for the acquittal of the accused.
APPRECIATION OF EVIDENCE
11. The case of the prosecution primarily hinges on the material testimonies of PW3 Ct Mahilal Singh; PW5 SI Karamveer and PW6 SI Ugesh Kumar. Ct Mahesh was examined in chief, partly cross examined before my Ld. Predecessor as PW1 but later on account of his expiry as noted in order dated 18/05/2009 of my Ld. Predecessor, he could not be further examined. Incomplete testimony of PW1 accordingly cannot be read in evidence.
12. In terms of presented case of prosecution and as per version of PW3 Ct Mahilal in his examination in chief, PW5 then ASI Karamveer Singh received secret information at 6.30 pm on 20/02/2000 while on patrolling duty in Defence Colony Market. In his SC No. 04/2009 14/43 State Vs. Sunil Kumar etc. cross examination PW3 stated that they had left the police station simultaneously at about 6.30 pm. PW3 further said that the secret information was disclosed by secret informer to all of them when they were at distance of about one kilometer from the police station when they were present near C Block where there were no shops around but some residential houses were there.
13. In his examination PW5 SI Karamveer stated that when they reached Defence Colony Market at 6.30 pm then secret information was received and that place was about 500/750 metres away from police station.
14. PW3 stated that IO had asked 2/3 passers bye to join the raid but none agreed and no notice in writing was served on any such passer bye. PW5 testified of having asked 4/5 passers bye to join the raiding party but none agreed and went away without telling their names and addresses, no notice was served upon them.
15. PW3 stated that he with Ct Mahesh and ASI Karamveer SC No. 04/2009 15/43 State Vs. Sunil Kumar etc. Singh, the members of the raiding party reached near the Gumbad at about 6.40 pm where the secret informer pointed towards accused Sunil from a distance of about four paces and left thereafter. PW3 stated that accused Sunil was alone present then on the pavement near the Corporation office and accused Sunil was apprehended by PW5 while PW3 and Ct Mahesh followed PW5.
16. PW5 stated that accused Sunil was standing opposite MCD office facing park when he was apprehended at about 7.15 pm on the pointing out of secret informer. As per PW5, till the apprehension of accused Sunil, secret informer remained with them and only thereafter secret informer left.
17. As per PW3, the place of apprehension of accused Sunil was 500 metres away from the place of receiving of secret information. PW5 termed the said distance to be 100 or 150 metres initially, again saying it would have been 50 metres or 100 metres.
18. PW3 testified that the personal search of accused Sunil SC No. 04/2009 16/43 State Vs. Sunil Kumar etc. was not conducted and he himself had taken out the counterfeit currency notes, hundred in number of Rs 100/ denomination each amongst Ex P4 (colly) out of his pocket of worn black colour coat. PW3 again said that accused Sunil handed over the aforesaid 100 counterfeit currency notes to IO and thereafter the personal search of accused Sunil was conducted and some other genuine notes were also recovered from his personal search besides other articles which he could not specify.
19. PW5 testified that accused Sunil had not taken out himself the counterfeit currency notes but in his personal search PW5 had recovered those 100 counterfeit currency notes from inner left pocket of black colour coat.
20. PW3 testified that PW5 had informed some senior officer from public telephone in the market situated at a distance of 100 meters from place of arrest of accused Sunil regarding recovery of counterfeit currency notes from accused Sunil and at that time when PW5 had gone to make the call, PW3 and Ct. Mahesh remained SC No. 04/2009 17/43 State Vs. Sunil Kumar etc. present with said accused at spot. Per contra, PW5 absolutely denied of having made any call or having contacted any senior officer by phone/otherwise to tell about said recovery from accused Sunil.
21. As per PW3, the writing work was done by PW3 at the spot while sitting on pavement for about one/one and half hours. PW3 further stated that Ct Mahesh took rukka to police station, returned back to spot at about 9.30 pm with copy of FIR and rukka and then they had left the said spot of arrest of accused Sunil for M Block, Defence Colony Market.
22. PW5 stated that 3 or 4 hours were taken for him for writing work before arrival of SI Ugesh Kumar at spot. PW5 again said that the said time would have been two and half hours or three hours while after arrival of SI Ugesh Kumar, two hours were taken by SI Ugesh Kumar thereafter for completing the investigation work. PW5 stated that by approximation they left the spot of apprehension of accused Sunil at about 11 or 11.30 pm. SC No. 04/2009 18/43 State Vs. Sunil Kumar etc.
23. PW3 stated that thereafter from M Block, Defence Colony Market accused Pankaj was apprehended on pointing out of accused Sunil and that place was 200/300 metres away from the place of apprehension of accused Sunil Kumar. PW5 stated said distance to be 50 metres or 100 metres and the time of apprehension of accused Pankaj to be before mid night. PW6 stated said distance to be 500/600 meters. PW5 stated at that time accused Pankaj was standing at the corner of the road. Arrest memo Ex PW1/6 of accused Pankaj prepared by PW6 finds mention of the arrest of accused Pankaj at 11 pm on 20/21022000 from H. No. 207, C9, Sector7, Rohini, New Delhi. PW6 deposed that pursuant to disclosure statement of accused Sunil, they went to Defence Colony, Main Market and in this course he requested 4/5 passserbyes to join proceedings but none agreed while it was about 10.30 pm. As per PW6, there after 10/12 minutes, accused Pankaj came, was identified by accused Sunil and immediately arrested. PW6 deposed accused Pankaj was apprehended at A Block Market of Defence Colony but no site plan was prepared regarding the place of arrest of accused Pankaj. SC No. 04/2009 19/43
24. PW3 deposed that from the Defence Colony Market after apprehension of accused Pankaj, recovery of the counterfeit currency notes from his possession and the writing work done at spot there, they had returned back to police station on foot with both accused Sunil and Pankaj who were lodged in lock up after they were produced before the SHO.
25. PW5 stated that from the place of arrest of accused Pankaj after the writing work was done for about approximately one hour, accused Sunil and Pankaj were taken for medical examination to AIIMS, again he said that at Safdarjung hospital, further again he said name of the hospital he did not remember and thereafter to police station. PW5 further elicited that from the Defence Colony Market they had gone to the hospital in two TSR whose fare was paid by SI Ugesh Kumar, PW6. PW6 SI Ugesh stated that from the Defence Colony Market accused Sunil and Pankaj were brought to police station in a TSR or some other vehicle, he did not exactly remember and produced before the SHO at police station at about 2 am. PW6 further said that medical examination of the accused was not got SC No. 04/2009 20/43 State Vs. Sunil Kumar etc. done in the night but was got done on the next day around 2 pm before their production in the court.
26. Pursuant to alleged disclosure, Ex PW1/E dated 22/02/2000, of accused Pankaj recorded by PW6 SI Ugesh, accused Pankaj led the police party to the stated house of accused S.K Singh. PW5 stated that the house of accused S.K Singh bearing number P 60 Krishna Vihar, Delhi was one room accommodation at ground floor and all members of the police party went inside the said room. PW5 stated that doors of neighbors were knocked by SI Ugesh Kumar for joining them in investigation but they did not gave any response. Besides accused S.K Singh there was another male person present inside the said room. There were other rooms at ground floor which were not of the accused. In presence of PW5, SI Ugesh Kumar had not asked any occupant of other rooms at ground floor regarding the ownership of their said room. PW5 also stated that those occupants of other rooms did not open their rooms despite knocking of IO. PW5 stated that room of the S.K Singh was tenanted room but he stated that he did not knew whether IO enquired in respect of the SC No. 04/2009 21/43 State Vs. Sunil Kumar etc. landlord of accused S.K Singh or had done anything to ascertain about the facts of tenancy of said room of accused S.K Singh.
27. PW6 stated that when accused Pankaj gave disclosure statement on 22/2/2000 they had come to know that accused S.K Singh was an advocate which fact he told to the SHO at police station but had not informed about the raid or prospective arrest of such accused advocate to any superior police officer, any office bearer of Delhi Bar Association, Bar Council of Delhi or District and Sessions Judge. PW6 also stated that no public person was made member of the raiding party before they started from police station at about 11.30 pm on 22/2/2000 to raid the house of accused S.K Singh. PW6 was unable to tell how many storeyes were there in the house of accused S.K Singh but simplicitor stated that accused S.K Singh was residing at the ground floor in a single room which was not connected with any kitchen, bathroom, toilet separately nor were these inside the said room. PW6 also stated that there was one colleague with accused S.K Singh there who had told his name which PW6 did not remember and that other person told that he was also an advocate. SC No. 04/2009 22/43
28. PW5 stated that a briefcase was on the table in the said room of accused S.K Singh located opposite the door of the room, on opening which briefcase without key by accused S.K Singh one counterfeit currency note of Rs 500/ and six counterfeit currency notes of Rs 100/ were recovered, which were seized vide memo Ex PW1/3.
29. PW6 stated that in the room of accused S.K Singh a small briefcase of fibre was on the floor in standing position near side the bed, which bed was perhaps a folding bed. As per PW6, there were two such beds, a table in said room. PW6 could not recollect whether there was any TV or fridge but there were clothes on hanger. No site plan of said place was prepared by PW6. PW6 even was unable to say whether briefcase was opened with the help of any button or was having any numbers for opening it. Such briefcase or other stated articles viz., documents were not seized in the course of investigation. PW6 elicited that accused S.K Singh was tenant in said room but he had not obtained any document of proof of tenancy of accused in respect of said room during course of investigation nor SC No. 04/2009 23/43 State Vs. Sunil Kumar etc. did he enquire as to who was the landlord or owner of the said room nor recorded the statement of such landlord of said room. No photographs were taken of said room or even outside of it. PW6 specified that they had not taken the personal search of the other person who was present with accused S.K Singh in the dead hours of the night. The members of the raiding party with accused Pankaj left the said room of accused S.K Singh at about 3.30 am or 3.40 am, as per PW6. As per PW5 they had reached the house of accused S.K Singh at 12 mid night of the intervening night of 22 and 23 February, 2000 and it took about one and half hours or two hours for investigation work thereafter which they had left that place.
30. PW5 testified that from the house of accused S.K Singh they had gone to Tis Hazari Courts, reached there before sunrise, entered the court premises from the gate near lock up, which gate was not locked and there was no police official, watchman or any court official there. As per PW5, the chamber of the accused S.K Singh was towards the side of St. Stephen Hospital. The key of the chamber was kept in the cavity above door and such key was the single key by SC No. 04/2009 24/43 State Vs. Sunil Kumar etc. which the chamber was opened. PW5 also testified that there was a wooden table in the chamber, small briefcase was placed on it from which the accused S.K Singh took out eighty five counterfeit currency notes of Rs 100/ denomination of different series, which were sealed in a paper envelope with the seal of UK and seized vide memo Ex PW1/P. From amongst stated counterfeit currency notes, 138 in numbers, Ex P3 (colly) and 401 stated counterfeit currency notes of Rs 100/ denomination, Ex P4 (colly), Ex P5(colly) and Ex P6 (colly), PW5 could not tell as to which were recovered from which of the accused but stated that he could only say of it after matching the numbers of the currency notes with the seizure memo.
31. As per PW5, the members of the raiding party had not met any watchman, any police official or any court official in the Tis Hazari premises from the gate till they reached aforesaid chamber and it took two hours for them for writing work there. No board of accused S.K Singh outside said chamber no. K41, Western Wing, Tis Hazari Court was seen by any member of the raiding party including PW5 and PW6. PW6 stated that in the briefcase besides SC No. 04/2009 25/43 State Vs. Sunil Kumar etc. the said eighty five counterfeit currency notes there were other papers as well. The other papers and briefcase was not seized. Neither any higher police officer or office bearer of Delhi Bar Association or Ld. District and Sessions Judge or the office of Ld. District and Sessions Judge were informed about the such raid, recovery and seizure of the said counterfeit currency notes from said chamber. It is admitted by PW5 and PW6 that there was police post at Tis Hazari. Neither any police official at said police post was contacted by the members of the raiding party before conducting the search of said chamber nor during the course of proceedings of recovery nor post recovery. PW6 in contradiction with version of PW5 stated that there were two tables and two chairs in said chamber, the chairs were of wood, neither having any cane nor any cushion. As per the version of PW5, there was only one wooden table in the chamber. No site plan of the chamber was prepared nor photographs of the chamber were taken during the course of investigation. It was also not ascertained in course of investigation from office of Delhi Bar Association or Ld. District & Sessions Judge, Tis Hazari as to whom the said chamber K41, Western Wing SC No. 04/2009 26/43 State Vs. Sunil Kumar etc. had been alloted or whether accused S.K Singh was sole possessor of said chamber since key of said chamber was not in exclusive possession of accused. Even said key was not seized nor produced in court.
32. The police party had raided the house of accused T.A Krishnamurthy on 23/02/2000. PW5 and PW6 could not tell as to how many storeyes in said house were built though PW5 stated that it was situated in the residential area and there was no shop nearby seen when they reached between 11 am to 12 noon on 23/02/2000. PW5 also stated that he did not knew whether any enquiry was made regarding owner of the said tenanted premises or as to how many total rooms were there in the possession of the accused T.A Krishnamurthy. PW5 stated that only wife of accused was present besides accused at his house then. As per PW5, accused T.A Krishnamurthy was arrested in his drawing room and PW6 had conducted the personal search of accused while accused was wearing pant and shirt whose colour and description he did not remember. SC No. 04/2009 27/43
33. PW6 stated that they reached the house of accused T.S Krishnamurthy around 9.30 am on 23/02/2000 and accused T.A Krishnamurthy was arrested after one and half hours of reaching the house. Even PW6 could not tell how many storeyes were there in the house. PW6 could not specify who was the owner of the house of accused T.A Krishnamurthy but stated that it was rented house. As per PW6, on 23/02/2000 ASI Karamveer, PW5, had taken the personal search of accused T.A Krishnamurthy and they had not searched the house of accused where they remained for about one and half hours. PW6 also stated that PW5 had not given his personal search to PW6 before conducting search of accused T.A Krishnamurthy. Contrary to record and personal search memo Ex PW1/L of accused T.A Krishnamurthy PW6 denied of recovery of Rs 555/ , genuine currency notes from personal search of accused T.A Krishnamurthy. PW6 deposed of having mentioned the denomination and numbers of the currency notes seized from accused T.A Krishnamurthy but was confronted and contradicted with seizure memo Ex PW6/C where there was no mention of the denomination of seized currency notes. So, PW5 and PW6 have given contradictory SC No. 04/2009 28/43 State Vs. Sunil Kumar etc. version of time of reaching the house of accused T.A Krishnamurthy on 23/02/2000, who conducted the personal search of said accused and what were the articles recovered in the personal search as well as the efforts made to join neighbors of accused T.A Krishnamurthy in the investigation, search or seizure. No refusing person has been proceeded as per law. It remains unspecified and undisclosed as to what members of the raiding party were doing for one and half hours at the house of accused T.A Krishnamurthy on 23/02/2000 when after reaching there they met with accused T.A Krishnamurthy who opened the door allegedly and even did not search the house of the accused ?
34. In the case of Naveen Chauhan @ Chussi v. State, 2010 (3) CCC (HC) 565, Hon'ble Mr. Justice V.K Jain held that where the prime suspects were interrogated on a day but their house was not searched that day itself, which the minimum a police officer would have done to collect any incriminating evidence which he might get against the prime suspect in the case, it was found difficult to accept the alleged later recovery from the house of such prime suspect/accused.
SC No. 04/2009 29/43
35. Having allegedly recovered six counterfeit currency notes from person of accused T.A Krishnamurthy when he was present at his house, it remains still a mystery as to what prevented the members of the raiding party to have searched the house of accused T.A Krishnamurthy on 23/02/2000 itself to locate if there were other counterfeit currency notes as well, through they remained there for one and half hours. On this count alone, the later alleged recovery of counterfeit currency notes of Rs 31,200/ from said house of accused T.A Krishnamurthy on 26/02/2000 does not go down the throat.
36. On 26/02/2000 pursuant to subsequent alleged disclosure statement of accused T.A Krishnamurthy again his aforesaid house was searched. PW5 stated that from the bed placed in drawing room, accused T.A Krishnamurthy took out pink coloured polythene containing 60 counterfeit currency notes of Rs 500/ denomination, part of Ex P7 (colly) and 12 counterfeit currency notes of Rs 100/ denomination which were sealed in pullanda and seized vide memo Ex PW1/N. Per contra, PW6 stated that the said recovery on SC No. 04/2009 30/43 State Vs. Sunil Kumar etc. 26/02/2000 was got effected by accused T.A Krishnamurthy not from his drawing room but from the room adjacent to drawing room at his house and the recovered counterfeit currency notes, totalling Rs 31,200/ were of denomination of Rs 500/ as well as Rs 100/ whose exact number he did not remember. No site plan of said place of recovery was prepared nor proved. PW6 elicited that on 26/02/2000 he had requested 2/3 passerbyes to join the investigation but none of them agreed, all went away, no action was taken against any such refusing person as per law while no neighbor or inhabitant of locality was even asked to join investigation, search or seizure on 26/2/2000 at the house of accused T.A Krishnamurthy. In the course of investigation, it has not been ascertained as to who the landlord was of such rented accommodation of accused T.A Krishnamurthy. No statement of landlord or owner of said premises of accused T.A Krishnamurthy was recorded during course of investigation nor such person was cited as a prosecution witness nor examined. Even no material in evidence was collected to substantiate that accused T.A Krishnamurthy was residing at the aforesaid place. SC No. 04/2009 31/43
37. PW5 simplicitor stated that they had also arrested accused Mahinder Pal on 25/02/2000 from Karol Bagh and on his search 10 counterfeit currency notes of Rs 500/ denomination amongst P7 (colly) and 45 counterfeit currency notes of Rs 100/ denomination were recovered and seized vide memo Ex PW1/W. PW5 was unable to specify from which place of Karol Bagh accused Mahinder Pal was arrested. PW5 stated that accused Mahinder Pal was apprehended on the road in the afternoon and at that place there were shops, there was normal traffic present, coming and going while the shops were open and the shopkeepers and the customers could be seen. PW5 stated that he could not say whether at the place of apprehension of accused Mahinder Pal any bus stop could be seen or whether accused Mahinder Pal was arrested at the bus stop.
38. PW6 stated that accused Mahinder Pal was standing at Karol Bagh Market on 25/02/2000 at about 12.30 pm when he was apprehended at the bus stop, where even there was a shade though he did not remember the name of bus stop which was written there. PW6 further elicited that there were public persons on the bus stop SC No. 04/2009 32/43 State Vs. Sunil Kumar etc. and on the road amongst whom he asked 2/3 persons to join the investigation but none agreed. Names and addresses of those refusing persons were not noted down nor they were proceeded against as per law for refusal to join investigation.
39. PW6 stated that the personal search of accused Mahinder Pal was conducted by PW5 while PW5 had not offered his search before conducting the search of accused Mahinder Pal. Per contra, PW5 stated that PW6 took the personal search of accused Mahinder Pal and only half an hour prior to apprehension of accused Mahinder Pal, accused Inderjeet got recovered photostat machine. Also, PW5 stated that in his presence, no independent person or shopkeeper or customer in shop or any passerby was asked by PW6 or Addl. SHO to join proceedings, search of accused Mahinder Pal or seizure of case property.
40. Subsequent to receipt of secret information at about 6.30 pm on 20/02/2000 at Defence Colony Market by PW5 and the other members of the raiding party namely PW3 and Ct Mahesh Kumar and SC No. 04/2009 33/43 State Vs. Sunil Kumar etc. till of the members of the raiding party remained at said Defence Colony Market till nearly mid night, on the way as well as at the spot of arrest of accused Sunil and accused Pankaj; subsequently before leaving police station in the night of 22/02/2000 to stated house of accused S.K Singh at Krishna Vihar, on the way as well as at the said house of accused S.K Singh; again on the way to Tis Hazari Court, in the vicinity of chamber No. K41, Western Wing, thereafter at the house of accused T.A Krishnamurthy at Laxmi Nagar on way on both days 23/02/2000 and 26/02/2000 as well as in the afternoon time at Karol Bagh Market on 25/02/2000 at the time of alleged apprehension of accused Mahinder Pal at the spot, apparently no sincere efforts have been made by the responsible officers of investigating agency for joining of any independent witness(es) in the raiding party; interception of the accused regarding which they allegedly had concrete information, recovery of the alleged counterfeit currency notes and the consequential arrest of the accused to lend credence to their such acts in the course of investigation.
41. Admittedly, on all these places specified in the SC No. 04/2009 34/43 State Vs. Sunil Kumar etc. preceding paragraph, before arrival, before or after apprehension of accused, before or after the alleged recovery of the case property from the places outside the jurisdiction of police station Defence Colony, no efforts had been made to inform or call upon the incharge of the police station (s) within whose jurisdiction such raid was organized and such recovery was allegedly effected.
42. Even for searching the alleged places of accused when the officials of investigating agency had with them the information of such accused being at such places, outside jurisdiction of police station Defence Colony neither the incharges of police stations having jurisdiction over such places were informed nor their services were requisitioned before or in the course of conducting such searches or seizure. Even subsequent to alleged recoveries and seizure of the said case properties neither the case properties were deposited with the incharges of such police station having jurisdiction over the area from where such searches were made nor even the copies of such recoveries were duly sent to them.
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43. Investigating officer belonging to one police station is permitted to search any place falling within the limits of another police station in certain exigencies without making any requirement to the police officer of the police station where the search is to be conducted in certain exigencies. One such exigency can be when there is possibility of delay in requisitioning the services of the police officer of another police station and such delay could defeat the very purpose of the search. In such circumstances, when search is conducted by the investigating officer without requisitioning the services of the officer incharge of the another police station within whose jurisdiction the search was conducted, under SubSection (4) of Section 100 Cr.P.C, he is required to forthwith send notice of the search to the officer incharge of the police station within the limits of which such place is situated, and is also required to send alongwith such notice a copy of the list, if any, prepared under Section 100 Cr.P.C. He is also required to send to the nearest Magistrate empowered to take cognizance of the offence, copy of the records prepared by him under subSection (1) and (3) of Section 165 Cr.P.C. SC No. 04/2009 36/43
44. Failure to comply with the provisions regulating searches casts doubt over the bonafides of the officers conducting such searches.
45. Alongwith the chargesheet, no copy of any daily dairy, containing any information of departure and return of members of investigating agency, any investigation work done on 20/02/2000 till 29/02/2000 had been placed on record nor proved. For reasons best known to the officers of the investigating agency, such entries were with held.
46. In this fact of the matter, non joining of the independent witness(es) in the entire sequence of occurrence of facts in the course of investigation from the time of organisation of the raid till recovery and seizure of the alleged case properties with effect from 20/02/2000 till 29/02/2000 and non placing on record the arrival and departure entries of any or all officers of the investigating agency, bring into fore the fact that the genesis of the crime is suppressed as no witness (es) from the localities of recoveries whose presence could be SC No. 04/2009 37/43 State Vs. Sunil Kumar etc. natural was joined in the investigation, nor cited nor examined, which creates a doubt regarding the truth of the prosecution version. Reliance placed upon the case of State of U.P vs. Madan Mohan and Others, AIR 1989 SC 1519 and Pawan Kumar vs. Delhi Administration, 1989 Cri.L.J 127.
47. The seized currency notes were allegedly counterfeit. PW7 Sh S.K Gaur, the then Technical Officer, Ink Factory, Bank Note Press, Dewas, M.P and PW8 Sh. S. Chakrapani, the then Deputy General Manager, Bhartiya Reserve Bank, Note Mudran Limited at Mysore have proved their respective reports Ex PW7/A and Ex PW8/A respectively opining that the 95 currency notes of Rs 500/ denomination and 401 notes of denomination of Rs 100/ each examined by them were counterfeit.
48. Accused Mahinder Pal when examined himself under Section 315 Cr.P.C as DW3 brought on record as Ex DW3/A (colly), the copies of register with the entries regarding work done by the employees for goods manufactured pursuant to installing of molding SC No. 04/2009 38/43 State Vs. Sunil Kumar etc. machines in December, 1999 for job of plastic parts in 857, Bus Stop, DDA Complex, Second Floor, Raghubir Nagar, New Delhi.
49. DW1 Sh Ashok Rana testified that on 22/2/2000 he had gone to the factory of accused Mahinder Pal at Second Floor, DDA Complex, Raghubir Nagar and at about 1.30 pm that day accused Mahinder Pal accompanied him to Tilak Nagar to purchase some buttons for jeans, on the way they went near Wimpy Restaurant at Rajouri Garden where a black colour car having black glasses came and a Sikh occupant of said car called the accused Mahinder Pal by his name with whom accused Mahinder Pal had some talk. DW1 stated that thereafter accused Mahinder Pal sat in the said car and went away and even DW1 waited for him for few minutes there and later went back to his place.
50. DW2 Om Parkash testified that on 21/02/2000 he, accused T.A Krishnamurthy and Vimal, friend of T.A Krishnamurthy reached ITO on 21/02/2000 at 11 am since he was told by accused T.A Krishnamurthy that Pankaj had called T.A Krishnamurthy there SC No. 04/2009 39/43 State Vs. Sunil Kumar etc. for some settlement of some disputes of shares. As per DW2, at that place Pankaj, three other persons accompanying him came at 11 am on 21/02/2000, one amongst them held the collar of T.A Krishnamurthy and one amongst them told DW2 that they were people of staff and he should leave. DW2 came under fear and left from there while those persons took away T.A Krishnamurthy . DW2 went to the house of accused T.A Krishnamurthy at No. 40, Shakarpur Khas, Delhi where he was residing on rented accommodation since 3/4 years prior to 2000 and informed the wife of accused there at first floor. DW2 stated that he was knowing accused T.A Krishnamurthy for last 14/15 years and had family relations with him and they all used to visit each other's house.
51. In the case of State of Haryana vs Ram Singh, 2002 (1) JCC 385, it was inter alia held that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
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52. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favor of the prosecution and the other in favor of the accused, the later should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 SCC 516 were relied.
53. The intra contradictory version of material witnesses PWs 3,5 and 6, the severe infirmities embedded in their statements in respect of the manner of sequence of occurrence with effect from receipt of secret information, apprehension of the accused Sunil, Pankaj, investigation work done at the spots of Defence Colony Market including the recovery and seizure of the case properties, return of the accused persons after or before their medical examination; subsequent raids effected at different places viz. the alleged residence of accused S.K Singh at Krishna Vihar, Chamber No. K41, Western Wing; stated rented premises of accused T.A krishnamurthy at Laxmi SC No. 04/2009 41/43 State Vs. Sunil Kumar etc. Nagar, Delhi on 23/02/2000 as well as 26/02/2000; alleged apprehension of accused Mahinder Pal from unspecified place in Karol Bagh, the elicited intrinsic circumstances enumerated above speak volumes against the prosecution case and raise considerable and reasonable amount of suspicion in mind regarding the apprehension of the arrayed accused, possession of the alleged counterfeit currency notes by the accused and the complicity of the accused in the commission of alleged offences. Neither the investigating agency in investigation nor the prosecution in its evidence brought any material to substantiate or prove that the two machines Ex P1 and Ex P2 make Hewlett Packard could be used for printing counterfeit currency notes or for purposes other that photocopying of documents.
54. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this court.
55. The aforesaid infirmities in the background of reasonable possibility of false implication of the accused persons, elicited above, SC No. 04/2009 42/43 State Vs. Sunil Kumar etc. renders the prosecution version not proved, beyond reasonable doubt.
56. Relying upon the law laid and elicited in the preceding paragraphs, since two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and other to their innocence, view which is favourable to the accused is being adopted. All the accused persons are given benefit of doubt and are acquitted for the offences charged. Bails bonds of accused on bail are canceled and their sureties are discharged. Case properties be confiscated to the State after expiry of period of appeal. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 26/08/2011 ASJ (FTC)/SD/ NEW DELHI .
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