Delhi District Court
State vs . Sameer @ Murtaza on 10 September, 2020
State Vs. Sameer @ Murtaza
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTHWEST)02,
DWARKA COURTS: DELHI
SC No. 93/17
Case Registration No. 440797/2016
CNR No: DLSW010023912015
FIR No. 15/2008
Police Station: Najafgarh
Under Section: 489C IPC
STATE
VERSUS
SAMEER @ MURTAZA
S/o Juber Ali
R/o H. No. C202, Gali No. 5, Madhu
Vihar, New Delhi.
Date of institution : 20.07.2015
Date of Reserving judgment : 18.11.2019
Date of Pronouncement : 10.09.2020
Decision : Acquitted
For State : Sh. Pramod Kumar, Learned Addl Public
Prosecutor.
For Defence: Sh. Raj Kumar, counsel for accused.
JUDGMENT
1. Accused was committed for trial by court of Sh. Vivek Kumar Gulia, Ld. CMM, South West, Dwarka, New Delhi, charge sheet having been filed against accused for commission of offence U/sec 489C IPC.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 1....of 24 State Vs. Sameer @ Murtaza
2. Accused was chargesheeted for commission of offence punishable under Section 489C IPC on facts that on 09.01.2008 at about 09:25 PM at Jai Vihar Nala Road, near Jai Vihar Pulia, accused was found in possession of counterfeit currency notes i.e. seven bundles of notes of Rs. 100/ denomination (total Rupees Sixty Five Thousand) knowing or having reason to believe the same to be counterfeit and intending to use the same as genuine.
3. Brief facts on the basis of which chargesheet in the matter was filed are as follows:
4. That on 09.01.2008, SI Kishore Pandey alongwith HC Vijender and Ct. Surender were present near Dichau Bus Depot i.e within area of PS Najafgarh on patrolling duty. At about 09:00 PM, secret informer informed that one person having counterfeit currency notes will pass from road adjoining Jai Vihar drain. On receipt of information, SI Kishore Pandey apprised the same to accompanying staff and asked threefour passersby to join the raid after apprising regarding secret information but all left telling their genuine excuses. SI Kishore Pandey took position alongwith staff behind bushes on road adjoining Jai Vihar Pulia drain. At about 09:20 PM, one person with one packet in his hand turned towards road adjoining Jai Vihar drain from Nangloi Road and secret informer pointed towards him whereupon SI Kishore Pandey alongwith accompanying staff chased and apprehended that person. SI FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 2....of 24 State Vs. Sameer @ Murtaza Kishore Pandey checked one green colour polythene bag having leaves printed upon it held by that person in his hands whereupon seven bundles of counterfeit currency notes of denomination of Rs. 100/ were found in the same whereupon numbers of different series were found.
5. On inquiry, the person told his name to be Sameer @ Mohd. Murtaza. The total amount of currency when counted came out to be Rs. 65,000/. Currency notes were kept in a plastic dabba and the dabba was converted into pulinda and pulinda was sealed with the seal bearing initials of "KP".
6. SI Kishore Pandey prepared tehrir and got FIR lodged by sending the same in the PS through Ct. Surender. SI Kishore Pandey took up investigation after registration of FIR.
7. During investigation, IO SI Kishore Pandey arrested accused and recorded his disclosure statement. IO recorded statements of witnesses U/sec 161 Cr.P.C and deposited case property into Malkhana of PS. IO released accused on police bail on account of offence being bailable.
8. Further investigation in the matter was assigned to ASI Hari Singh who sent counterfeit currency notes in plastic box alongwith sample seal to General Manager, India Security Printing Press, Nasik, Maharashtra for result. Report was not received till filing of charge sheet.
9. Report of Currency Note Press, Nashik Road, Maharashtra was filed before court by way of supplementary charge sheet.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 3....of 24 State Vs. Sameer @ Murtaza
10. On 20.07.2015, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. CMM, South West, Dwarka with a view to put the accused for trial.
11. In the light of the police report and the documents filed alongwith the same, Learned CMM, South West, Dwarka having taken cognizance of the offence complied with the provisions of section 207 of Cr.P.C. and committed the case to the Court of Sessions.
12. On 15.02.2016, charge was framed against accused for having committed offence punishable under section 489C IPC. Charge was read over and explained to the accused to which he did not plead guilty and claimed trial.
13. In support of its case, the prosecution examined 09 witnesses in total.
14. PW1 ASI Krishan Pal is Duty Officer who exhibited his endorsement on rukka vide Ex. PW1/A and FIR vide Ex. PW1/B.
15. PW2 Ct. Ramesh Kumar is the police official who deposed that on 15.03.2009, he under the instructions of ASI Hari Singh collected pulinda containing case property bearing seal of "KP" alongwith sample seal and vide RC No. 265/21/9 deposited the same in Printing Press at Nasik and obtained a separate receipt from concerned office. He again said that he had gone to Nasik on 12.03.2009 and deposited case property in Printing Press on 14.03.2009. He deposed that he returned to FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 4....of 24 State Vs. Sameer @ Murtaza Delhi on 15.03.2009. He deposed that he deposited receipt received from Printing Press in the Malkhana. He deposed that so long as case property remained in his possession, same was not tempered with.
16. PW3 Ct. Surender is police official who deposed that on 09.01.2008 at about 09:00 PM, he alongwith SI Kishore Pandey and HC Bijender were on patrolling opposite DTC Depot, Dichau Kalan. He deposed that one person gave secret information that one person would be arriving alongwith fake currency notes from Nangloi side and would proceed towards Dichau Drain in some time. He deposed that on receipt of secret information, they concealed their presence in the bushes near Nala. He deposed that secret informer was with them. He deposed that after 20 minutes, one person came from side of Nangloi who was pointed out by secret informer and upon pointing, they ran after the said person and said person was apprehended at distance of 2030 feet from place where they had concealed their presence in the bushes.
17. PW3 deposed that the person was holding a polythene bag of green colour in his hand which was checked by SI Kishore Pandey and it was found to contain 07 bundles of Rs. 100/ denomination. He deposed that the said person was taken to place where there was street light. SI Kishore Pandey counted currency notes and found the same to be 650 in number. Name of apprehended person was revealed at the spot to be Sameer. He correctly identified accused before court.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 5....of 24 State Vs. Sameer @ Murtaza
18. PW3 deposed that currency notes were kept by SI Kishore Pandey in a plastic container which was wrapped with a cloth and sealed with seal of KP. He deposed that seal after use was handed over to him. After sealing case property, rukka etc was prepared.
19. PW3 deposed that rukka was handed over to him by SI Kishore Pandey which he handed over to PS for registration of FIR. In the PS, he handed over rukka to Duty Officer. Thereafter, Duty Officer handed over to him one envelop but he did not check contents of the envelop. He handed over the said envelop to SI at the spot. Thereafter, accused, he himself, HC Bijender and SI K. P. Singh went back to PS.
20. PW3 deposed that he can identify case property if shown to him. He deposed that he can identify case property on basis of green colour polythene bag which was having leaves printed on the same and it was containing 07 bundles of currency notes of Rs. 100/ denomination and one bundle was half bundle. He deposed that there was no specific mark of identification put on currency notes, as such, he would not be in a position to identify the same.
21. PW3 identified one green colour polythene before court vide Ex. P1. He identified cloth piece used for sealing jar vide Ex. P2 and fake currency notes vide Ex. P3 (colly).
22. PW4 Ravinder Nath Vithal Jadhav is Retired Assistant Works Manager, Currency Note Press, Nasik Road. He deposed that on 06.03.2009, he was working as Assistant FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 6....of 24 State Vs. Sameer @ Murtaza Works Manager, Currency Note Press, Nasik Road, Maharashtra. He deposed that on that day, he received 650 currency notes of Rs. 100/ denomination each from Najafgarh Police Station from Ramesh Kumar PC 1829 in one plastic jar duly sealed with seal of KP. He deposed that same was received by Mr. M. P. Bain, Assistant Works Manager, Forgery Department, Currency Note Press.
23. PW4 deposed that on 09.03.2009, he was assigned task of examination of currency notes contained in the sealed jar which were to be examined in Forgery Lab, CNP. He marked photocopy of office order dated 09.03.2009 in this regard vide Mark PW4/PX. He deposed that this order is not on record and the same is internal order of office and is available in Currency Note Press.
24. PW4 deposed that on 02.04.2009, he examined Currency Notes referred above and on examination, he came to conclusion that all the currency notes were counterfeited notes. He exhibited his report dated 09.04.2009 in this regard vide Ex. PW4/A.
25. PW5 Inspector Kishore Pandey is first IO who deposed that on 09.01.2008 at about 06:45 PM, he left PS alongwith HC Vijender and Ct. Surender for patrolling. He deposed that while patrolling at about 09:00 PM, they reached Dichau Bus Stand where he received secret information that one person having possession of counterfeit currency notes would be going towards Jai Vihar Drain from side of Nangloi. He FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 7....of 24 State Vs. Sameer @ Murtaza deposed that at this, threefour passersby were asked to join the raiding party but they refused. He deposed that at this, he briefed accompanying staff. He deposed that there were bushes near Jai Vihar Drain and they concealed their presence behind the bushes. He deposed that at about 09:25 PM, secret informer pointed towards one person coming from side of Nangloi and proceeding towards Jai Vihar Drain. The said person was apprehended by PW5 with his associates after running 22 to 25 paces. He deposed that the person was found carrying one polythene bag and on checking the same, it was found containing currency notes of Rs. 100/ denomination totaling to Rs. 65,000/. He deposed that there were 07 bundles of currency notes of Rs. 100/ denomination. He deposed that 6 bundles consisted of 100 currency notes each of Rs. 100/ denomination and 7th bundle contained 50 currency notes of Rs. 100/ denomination.
26. PW5 deposed that he prepared seizure memo and seized currency notes. He deposed that the green colour polythene bag in which currency notes were found was seized separately. He deposed that currency notes were kept in a plastic jar and lid of the same was covered with a piece of cloth and then sealed with seal of KP. He deposed that in the similar manner, green colour printed polythene bag was sealed in a separate plastic jar with seal of KP. He exhibited seizure memo vide Ex. PW5/A.
27. PW5 deposed that the person from whose possession currency notes were seized disclosed his name to be Sameer. He FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 8....of 24 State Vs. Sameer @ Murtaza correctly identified accused before court.
28. PW5 deposed that at about 10:45 PM, he sent rukka to PS through Ct. Surender for registration of FIR vide Ex. PW 5/B. He deposed that at about 12/12:15 midnight, Ct. Surender returned with copy of FIR and original rukka. Thereafter, entire police team and accused went to PS. He deposed that case property was deposited in Malkhana by him. Thereafter, father of accused was informed by PW5 who came to PS whereupon accused was released on bail. He again said, accused was arrested at the spot and thereafter, he was brought to PS. He deposed that after arrest of accused, arrest memo was prepared at the spot vide Ex. PW5/C. He deposed that personal search memo of accused was prepared vide Ex. PW5/D. He deposed that he also recorded disclosure statement of accused after his arrest at the spot. He deposed that he prepared conviction slip of accused.
29. PW5 deposed that on 01.04.2008, investigation was transferred from him. He correctly identified case property before court vide Ex. P1 to Ex. P3 (colly). He deposed that during investigation, he recorded statement of Ct. Surender and HC Bijender.
30. PW6 ASI Satyawan is MHC(M) who deposed that on 03.03.2009, as per instructions of IO, one plastic jar sealed with seal of KP alongwith sample seal were sent to JM India Security Printing Press, Nasik, Maharashtra vide RC No. 265/21 through Ct. Ramesh Kumar who after arrival from Pune, FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 9....of 24 State Vs. Sameer @ Murtaza Maharashtra deposited acknowledgment receipt of the same to him regarding which he made entry. Copy of the relevant record in this regard was exhibited by him vide Ex. PW6/A. He exhibited copy of road certificate vide Ex. PW6/B and copy of acknowledgment receipt vide Ex. PW6/C.
31. PW7 ASI Bijender is a member of patrolling party who corroborated version of IO/PW5. He corroborated Ex. PW5/A, Ex. PW5/C and Ex. PW5/D. He exhibited disclosure statement of accused vide Ex. PW7/A. He correctly identified accused before court. He deposed that currency notes were found to be fake currency notes by bare looking upon paper of notes and the said currency notes were of different series number. He correctly identified case property before court vide Ex. P1 to Ex. P3 (colly).
32. PW8 Retd. ACP Abhay Singh Yadav was SHO PS Najafgarh from 20.08.2007 to 30.09.2009. He deposed that investigation of the present case was conducted by SI Kishore Pandey and thereafter ASI Hari Singh (since expired). He deposed that ASI Hari Singh was working in the aforesaid PS under his supervision and he can identify his signatures and handwriting as he had seen him signing and writing during course of his official duty. He deposed that on 07.07.2008, ASI Hari Singh was assigned further investigation of present case by him. During investigation, ASI Hari Singh sent sealed pulinda of recovered fake currency notes from accused through Ct. Ramesh Kumar to Currency Note Press, Nasik Road, FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 10....of 24 State Vs. Sameer @ Murtaza Maharashtra. He deposed that after completing investigation, chargesheet u/sec 489C IPC was prepared against accused by ASI Hari Singh and filed in the court. He exhibited chargesheet vide Ex. PW8/A identifying his and ASI Hari Singh's signatures upon it at points A and B respectively. He deposed that later on, after receipt of report from Nasik Press regarding fake currency notes, supplementary chargesheet was filed in the court.
33. PW9 SI Ravi deposed that on 29.07.2015, at instruction of SHO, he had collected report of Currency Note Press, Nasik, Maharashtra which was in sealed envelop. He deposed that he had opened the envelop containing the said report. He exhibited the envelop vide Ex. PW9/A and corroborated report vide Ex. PW4/A already. He deposed that he filed that report in court in form of status report on 31.07.2015 and filed supplementary chargesheet in the court.
34. Prosecution evidence was closed on 31.05.2019 on separate statement of Ld. Additional PP for State.
35. On 19.10.2019, accused was examined under section 313 Cr.P.C wherein incriminating material and evidence was put to accused to which accused stated that false report was prepared on asking of IO just to falsely implicate him. He stated that prosecution witnesses have deposed falsely being interested witnesses on asking of IO. He stated that it is a false case and he has been falsely implicated by IO. He stated that he had some money transaction with one Hussain Ali who pressurized him to FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 11....of 24 State Vs. Sameer @ Murtaza give 20% interest per month on lending amount and on his refusal, he was called by SI Kishore Pandey at the PS where he found Hussain Ali present and SI Kishore Pandey started pressurizing him to return principal amount of Rs. 50,000/ alongwith interest @ 20% per month for the last 10 months. He stated that on his refusal, he was threatened by SI Kishore Pandey in presence of Hussain Ali. He stated that he was again called by SI Kishore Pandey in December, 2007 and January, 2008 and when he refused to accede their illegal demands, police officials had obtained his signatures on blank papers forcibly and also obtained his signatures on some typed formats in order to falsely implicate him. He stated that thereafter his father also called and his signatures were also obtained on some blank papers.
36. Accused did not lead any Defence Evidence.
37. I have heard arguments addressed by respective counsels and perused the record including written arguments and judgments filed on behalf of accused.
38. Section 489C IPC makes possession of forged or counterfeit currency note or bank note an offence if person in possession of the same knows or has reason to believe the same to be forged or counterfeit and intends to use the same as genuine or that it may be used as genuine.
39. Before coming to the point as to whether ingredients of offence U/sec 489C IPC have been proved by prosecution or FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 12....of 24 State Vs. Sameer @ Murtaza not, let me first take up version of prosecution as has come before court in evidence and then observe as to whether the same inspires sufficient confidence so as to warrant testing of facts of present case on parameters of offence U/sec 489C IPC.
40. Accused was purportedly arrested on 09.01.2008 on charge of being in possession of counterfeit currency notes to the tune of Rs. 65,000/ in aggregate.
41. PW3 Ct. Surender, PW5 Inspector Kishore Pandey and PW7 ASI Bijender constitute team that allegedly arrested accused with counterfeit currency notes.
42. PW3, PW5 and PW7 have deposed to be on patrolling duty on 09.01.2008 when secret informer allegedly met SI Kishore Pandey/PW5. No DD entry vide which the trio left Police Station for patrolling duty on 09.01.2008 has been proved on record by prosecution though PW7 in his cross examination has volunteered that SI Kishore Pandey had made DD entry 80 B regarding their patrolling duty but fact of the matter remains that the same has not been proved on record which is an important missing link in story of prosecution.
43. Secondly, there is contradiction between versions of PWs constituting patrolling party as to how they reached the place while patrolling from where accused was allegedly arrested. PW3 Ct. Surender in his cross examination in this regard stated that they went for patrolling on private motorcycle. He stated that he does not remember number and make of said FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 13....of 24 State Vs. Sameer @ Murtaza motorcycle. PW5 in this regard in his cross examination stated that he was on his Scooter at the time of patrolling and Ct. Surender and HC Bijender were on the Scooter of Ct. Surender.
44. Further aspect which requires to be taken into account is factum of mentioning of FIR number on seizure memo Ex. PW 5/A, disclosure statement of accused Ex. PW7/A, personal search memo of accused Ex. PW5/D and arrest memo of accused Ex. PW5/C. As per arrest memo of accused Ex. PW 5/C, accused was arrested on 09.01.2008 at 09:25 PM. Perusal of FIR Ex. PW1/B shows that information was received at the PS at 11:10 hours on 09.01.2008. Time of taking of rukka has been mentioned in Ex. PW5/B to be 10:45 PM. PW3 in his cross examination has stated that Duty Officer took near about 1 ¼ hours to register the FIR. PW7 in his cross examination stated that Ct. Surender /PW3 had taken about 1 ¼ hours to come back to the spot from PS after registration of FIR. PW5 in his cross examination stated that Ct. Surender took 2 2 ½ hours to come back to the spot alongwith FIR. Version of all these PWs prima facie shows that after PW3 left spot with rukka at 10:45 PM on 09.01.2008, information was received in the PS at 11:10 hours and PW3 returned after registration of FIR after 12:00 in the morning of 10.01.2008 (PW5 in his examination in chief has also stated that at about 12/12:15 midnight, Ct. Surender returned with copy of FIR and original rukka). FIR number is mentioned on Ex. PW5/A, Ex. PW5/C, Ex. PW5/D and Ex. PW7/A. None of the patrolling party FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 14....of 24 State Vs. Sameer @ Murtaza witness i.e. PW3, PW5 and PW7 in their examination in chiefs have deposed that FIR number on all the above mentioned exhibits was added by IO /PW5 after registration of FIR. Technically, there could not have been any arrest of accused before registration of FIR. Prosecution has not offered any explanation as to how FIR number upon aforesaid exhibits was found to be mentioned. Non explanation of the same has casted serious doubt on veracity of prosecution version and manipulation of documents in these circumstances cannot be ruled out particularly when there is overwriting in year of FIR in Ex. PW5/A, Ex. PW5/D and Ex. PW5/C and year of FIR in Ex. PW7/A is mentioned to be 07 whereas FIR was lodged in year 2008.
45. Defence counsel in order to stress upon this aspect has filed judgment in case titled as "Prithvi Pal Singh @ Munna Vs. State 2000 (1) JCC (Delhi) 274" wherein Hon'ble High Court of Delhi has held as below:
"There is another infirmity which has shaken the foundation of the prosecution case to an irreparable extent. The Rukka (Ex. PW-11/A) reveals that the alleged search and seizure was made at 7.05 P.M. and the Rukka was sent to the police station at 8.35 P.M. on the basis of which the FIR (Ex. PW-7/A) was registered at the Police Station Pahar Ganj. The prosecution witnesses have stated in one voice that the documents were prepared on the spot. The FIR (Ex. PW-7/A) shows that it was registered at 8.50 P.M. Surprisingly, the notice under Section 57 of the Act (Ex. PW/A), the seizure memo (Ex. PW-4/C), the personal search memo of the appellant (Ex. PW-4/D) and the search memo of the appellant's house (Ex.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 15....of 24 State Vs. Sameer @ Murtaza PW-4/F) bear the number of the FIR (Ex. PW-7/A). The number of the FIR (Ex. PW-7/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that all these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. PW-7/A) had appeared on the top of these documents. This gives rise to two inferences that either the FIR (Ex. PW-7/A) was registered prior to the alleged recovery of the contraband or that number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution case and robs the efficacy of the evidence of the aforesaid police officials regarding the alleged recovery of contraband from the appellant's possession."
46. Further, no number of any allegedly recovered counterfeit currency notes has been noted by IO in seizure memo Ex. PW5/A nor in the body of chargesheet, any number of allegedly recovered counterfeit currency notes has been mentioned by IO. How, allegedly recovered counterfeit currency notes were identified by alleged recovery witnesses before court is matter of great surprise to this court in absence of noting of any number of the same or in absence of giving any identification mark by IO in this regard. PW3 in his examination in chief in this regard has deposed that there was no specific mark of identification put on the currency notes, as such, he would not be in a position to identify the same (examination in chief recorded on 10.03.2016) but surprisingly with change of court, PW3 identified the same in his next portion of examination in chief recorded on 27.09.2018. PW3 in his cross examination stated that IO did not mention number FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 16....of 24 State Vs. Sameer @ Murtaza of FICN (Fake Indian Currency Notes ) in the recovery memo or in the rukka. PW5/IO in his cross examination stated that he did not mention serial number of FICN in the seizure memo. PW7 in his cross examination has stated that he does not remember if IO had mentioned the number of FICN in the seizure memo or rukka. In absence of noting of any details/series /serial number of allegedly recovered counterfeit currency notes, the biggest surprise has been thrown by IO as Prefix and Serial Number of one of the allegedly seized counterfeit currency notes finds mention in report of expert from Currency Note Press (Ex. PW4/A) wherein details of notes received has been mentioned to be as per letter under reference. No letter under reference has been brought or proved on record though from perusal of Ex. PW4/A, it transpires that the same is 366 /SHO /N. Garh Delhi dated 02.03.2009. How come prefix and serial number of one of allegedly recovered counterfeit currency note finds mention in Ex. PW4/A without the same having been mentioned anywhere on record by IO has not been explained anywhere by State. All this and what has been deposed by PW3 in his examination in chief recorded on 10.03.2016 as mentioned above causes serious doubt regarding veracity of case property in present case and tempering of case property in present case cannot be ruled out on account of what has been just discussed and what is going to be discussed in succeeding paras.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 17....of 24 State Vs. Sameer @ Murtaza
47. PW4 in his report Ex. PW4/A has not noted initials of two seals upon plastic jar wherein he received counterfeit currency notes in present case. PW4 in his cross examination has denied the suggestion that as the currency notes were received in unsealed condition or that for the said reason, he has not mentioned in his report about seal impression of KP. PW4 to court question asked in this regard stated that it is not necessary to mention in the report the seal impression on the sealed pulinda /jar etc the contents of which are assigned to him for examination. I am of the view that mentioning of details of seal impression on the container wherein case property was received for examination was a must so as to rule out possibility of tempering of case property and in absence of mentioning of the same by PW4 /Expert in his report Ex. PW4/A, possibility of tempering in case property cannot be ruled out.
48. Tempering of case property in present matter cannot be ruled out in view of what has been deposed by PW2 Ct. Ramesh Kumar before court. PW2 is the police official who allegedly took pulinda containing case property to Currency Note Press, Nashik Road, Maharashtra. He in his examination in chief deposed that on 15.03.2009, he collected pulinda containing case property under instructions of IO ASI Hari Singh and deposited the same in a Printing Press at Nasik and obtained a separate receipt from the concerned office. He again said that he had gone to Nasik on 12.03.2009 and deposited case property in the Printing Press on 14.03.2009. He deposed FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 18....of 24 State Vs. Sameer @ Murtaza that he returned to Delhi on 15.03.2009 and deposited receipt received from Printing Press in Malkhana. He in his cross examination stated that he does not remember the time but he had taken the case property from MHC (M) on 12.03.2009.
49. State has exhibited road certificate vide which PW2 allegedly took case property to Currency Note Press, Nashik Road, Maharashtra vide Ex. PW6/B which is dated 03.03.2009. Malkhana record in this regard also has been exhibited by State vide Ex. PW6/A as per which also, case property was handed over to PW2 on 03.03.2009 and which was deposited vide diary number 225/09 dated 06.03.2009.
50. State has not reexamined PW2 with regard to what he has deposed in his examination in chief and cross examination and what has been deposed by PW2 is contrary to record as contained in Ex PW6/A and Ex. PW6/B and tempering of case property in these circumstances cannot be ruled out.
51. One more factor raising suspicion of tempering in case property is delay in sending case property for examination to Currency Note Press, Nashik Road, Maharashtra. Case property in present case was allegedly seized on 09.01.2008 whereas the same was sent for examination after more than one year i.e. on 03.03.2009. In the circumstances of present case, tempering in case property in these circumstances cannot be ruled out.
52. Defence has filed judgment in case titled as "Jitender @ Jeetu Vs. State 2006 (3) JCC 1382" wherein Hon'ble High FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 19....of 24 State Vs. Sameer @ Murtaza Court of Delhi observed as below:
"We have also noted that the clothes worn by the deceased were held back and sent to the FSL after one month alongwith chocolate colour shirt which is alleged to have been recovered at the instance of the appellant. The holding back of the recovered articles for a period of one month cannot rule out the possibility of foul play."
53. In the present case, as mentioned above, delay in sending case property for examination to Currency Note Press is more than one year and foul play in circumstances of present case qua case property cannot be ruled out.
54. It was argued by defence during course of arguments that no public witness was joined during alleged recovery proceedings and disclosure, discovery and arrest were made in presence of same witnesses which casts shadow of doubt on prosecution version.
55. Defence relied upon judgments in cases titled as "Pawan Kumar Vs. Delhi Administration 1988 (2) RCR 421 and State of Haryana Vs. Ram Singh (2002) 2 SCC 426" in this regard.
56. In Ram Singh's Case (Supra), Hon'ble Apex Court held that all disclosures, discoveries and arrests made in presence of three interested witnesses as no independent witness could be foundcreates a doubt or suspicion which must go to the benefit of the accused.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 20....of 24 State Vs. Sameer @ Murtaza
57. PW3 in his examination in chief is silent about IO asking any public witness to join the raid though in his cross examination, he has stated that IO asked passerby to join the investigation but they all declined. He stated that IO did not serve any notice upon the said passerby who refused to join the investigation. He stated that IO did not note down their names and addresses. PW5 in his examination in chief stated that 34 passersby were asked to join the raiding party but they refused. PW7 in his examination in chief stated that thereafter SI Kishore requested 34 passersby to join the raiding party but they refused to join the same. It is not the case that public witnesses were not available as IO himself has deposed that he asked 34 passersby to join raiding party. Non joining of raiding party by independent witnesses has made recovery in present case doubtful in circumstances of present case as discussed above and as are to be discussed yet.
58. No FSL form appears to have been filled in by IO immediately after alleged seizure of counterfeit currency notes from accused. PW5/IO in his cross examination in this regard has stated that he had not filled up the FSL form at the spot. It is an established practice to fill FSL form in triplicate which may rule out possibility of tempering later on. Non filling of FSL form by IO either at the spot or thereafter makes prosecution version doubtful and false implication of accused cannot be ruled out.
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 21....of 24 State Vs. Sameer @ Murtaza
59. The last and most important aspect of the matter is that complainant in the present case is Investigating Officer of the case which is not desirable. In "Megha Singh Vs. State of Haryana AIR 1995 SC 2339", Hon'ble Apex Court observed that "It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr. P. C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation".
60. In Mohan Lal Vs. State of Punjab Criminal Appeal No. 1880 of 2011 decided on 16.08.2018, Hon'ble Supreme Court has stressed on the legal significance of fairness of the investigation; and in that context has said this about investigation being carriedout by a person who is also the complainant in a criminal case : "In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 22....of 24 State Vs. Sameer @ Murtaza official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion."
61. In the present case, PW5 is complainant who lodged FIR and carried out investigation for its majority including recording of statements of witnesses U/sec 161 Cr. P. C. There was no compulsion with police authorities to continue PW5 as IO after registration of FIR in present case but his continuation as IO has reduced credibility of prosecution case in the circumstances as discussed above.
62. In view of my abovemade discussion, I am of the view that prosecution has failed to inspire sufficient confidence through evidence adduced before court so as to test facts of present case on ingredients of offence under Section 489C IPC and there is no requirement of testing facts of present case on ingredients of offence under Section 489C IPC as recovery in the present case from accused is doubtful and tempering of case property cannot be ruled out. Accused deserves to be given FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 23....of 24 State Vs. Sameer @ Murtaza benefit of doubt which is accordingly given to accused and accused is acquitted for commission of offence U/sec 489C IPC.
63. File be consigned to Record Room.
Digitally signed by SONU SONU AGNIHOTRI
AGNIHOTRI Date:
Announced in the open 2020.09.10
16:50:25 +0530
Court on 10th September, 2020 (Sonu Agnihotri)
ASJ02 (South West),
Dwarka Courts, Delhi
FIR No: 15/2008 PS: Najafgarh Case Registration No. 440797/2016 page no. 24....of 24