Delhi District Court
State vs . Om Prakash & Others on 18 August, 2012
State Vs. Om Prakash & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL,
TIS HAZARI COURTS, DELHI
SC No. 12 of 2011
ID No. 02401R0140372011
FIR No. : 03/2011
Police Station : Special Cell
Under Section : 489A/489B/489C/
489D/34 IPC
STATE
versus
1. Om Prakash
S/o Late Jagdish
R/o C-473, Gali No. 24,
Bhajan Pura, Delhi
.........Accused no.1
2. Sanni
S/o Sh. Dharmvir Singh
R/o Dhannu Gurjar Ka Makan,
Gali No. 18, Village-Govind, Delhi
.........Accused no.2
3. Rohit
S/o Kanti Tyagi
R/o C-125, Gali No. 11, Bhajan Pura,
Delhi
.........Accused no.3
SC No. 12/2011 Page no. 1 of 25
State Vs. Om Prakash & others
Date of Institution : 21.03.2011
Date of Committal to Sessions Court : 02.05.2011
Date of judgment reserved on : 13.08.2012
Date of pronouncement of judgment : 18.08.2012
Present: Sh.R.K.Tanwar, Addl. P. P. for State
Sh. Ashok Chikara, Advocate, counsel for accused
Om Prakash
Sh. Hansraj Singh, Advocate, counsel for accused
Rohit and Sanni
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on January 8, 2011 at about 2.15 PM, a secret information was received to SI Satish Rana that one person named Om Prakash was indulging in printing of fake Indian currency notes (FICN in short) in the denomination of ` 100/- & ` 50/- from his house located at C-Block, Gali No. 24, Bhajan Pura, Delhi. Secret informer further informed that accused Om Prakash used to supply the said FICN and also used the same to meet his daily expenses and further told that Om Prakash would come near Power House before Khajuri Red light at Pusta Road, Delhi between 4 PM to 4.30 PM to supply FICN in the denomination of ` 100/- & ` 50/- to two persons namely Sanni & Rohit in huge quantity and if raid be conducted, all three persons could be apprehended with FICN. Accordingly, SI Satish Rana produced the secret informer before Insp. Subhash Vats, who made inquiry from the secret informer and thereafter, conveyed the secret information to senior officer on phone who directed him to conduct the raid immediately. At the direction of Insp. Subhash Vats, SI Satish Rana constituted a raiding party comprising of ten police officials under SC No. 12/2011 Page no. 2 of 25 State Vs. Om Prakash & others the supervision of Insp. Subhash Vats and thereafter, he briefed the secret information to the members of the raiding party.
(i) It was alleged that the raiding party left from the office of Special Cell at about 2.40 PM in private cars vide DD No. 10 and they reached near Power House at Pusta Road at about 3.45 PM. On the way, efforts were made to persuade public persons to join the raiding party but none came forward.
(ii) It was alleged that at about 4.05 PM, two persons came from Khajuri Red Light side, the person who was wearing green linedar shirt and blue Jeans was identified by secret informer as Rohit and the another person who was wearing black colour jersey and blue jeans was identified as Sanni. It was alleged that after about 5 minutes, another person who was wearing grey colour jacket reached there and the said person was identified as Om Prakash by the secret informer. Thereafter, accused Om Prakash talked with the said persons and thereafter he had taken out two yellow colour envelopes from two different pockets of his jacket and handed over one envelope to Rohit and another to Sanni.
Both the said persons namely Rohit and Sanni obtained the envelopes and had a look inside it and thereafter kept the same in their right side pocket of their pants. As soon as these three persons started moving towards the direction from which they had come, police party apprehended them. It was alleged that SI Satish Rana had caught hold accused Om Prakash whereas HC Ashok caught hold accused Sanni and HC Ram Gopal caught hold accused Rohit.
SC No. 12/2011 Page no. 3 of 25
State Vs. Om Prakash & others
(ii). In was alleged that SI Satish Rana disclosed his identity
and also offered the search of members of raiding party, but accused refused to take the search. Request was also made 8-10 persons to join investigation but none came forward and went away. Thereafter, investigating officer had taken the search of accused Sanni and one yellow colour envelope was recovered from the right side pocket of his pant which was containing 35 FICN in the denomination of ` 100/- each having serial No. 7LH-031937 and 30 FICN in the denomination of ` 50/- having serial number OND 177233. All the recovered currency notes were kept in the same envelope and sealed in a cloth parcel with the seal of SR and parcel was given serial No. S. Form FSL was also filled up, thereafter seal was handed over to HC Ram Gopal.
(iv) It was alleged that thereafter SI Satish Rana had taken the search of accused Rohit and on search, one yellow colour envelope containing 35 FICN in the denomination of ` 100/- each having serial number 7LH-031937 and 34 FICN of ` 50/- each having serial No. OND 177233 was recovered from the right pocket of his pant. All the recovered currency notes were kept in the same envelope and sealed in a cloth parcel with the seal of SR and parcel was given serial No. R. Form FSL was also filled up, thereafter seal was handed over to HC Ram Gopal.
(v) It was alleged that thereafter, search of accused Om Prakash was taken and one yellow colour envelope was recovered from the right side pocket of his pant which was found containing 76 FICN in the denomination of ` 100/- each having serial number 7LH-031937 and 54 FICN of ` 50/- each having serial No. OND 177233. All the recovered currency notes were kept in the same envelope and sealed in a cloth SC No. 12/2011 Page no. 4 of 25 State Vs. Om Prakash & others parcel with the seal of SR after taking it from HC Ram Gopal and parcel was given serial No. O. Form FSL was also filled up, thereafter seal was handed over to HC Ram Gopal.
(vi) It was alleged that all the recovered currency notes were fake and counterfeit as the security thread was quite dull. Thereafter, SI Satish Rana prepared a rukka and sent HC Ram Gopal to the police station of Special Cell to lodge an FIR for the offence punishable under Section 489B/489C/34 IPC.
(vii) It was alleged that further investigation was assigned to ASI Amrik Singh, who reached the spot at about 10 PM. Consequently, SI Satish Rana had handed over all the documents, sealed pullandas, FSL forms and accused persons to him. It was alleged that during interrogation, accused Om Prakash disclosed that he could get recovered photocopy/scanner and other printing material from his house. Pursuant to his disclosure statement, one copier make HP-Desk Jet F # 370, one scanner, copier of white and grey colour adopter, cables were recovered and same were sealed in pullandas with the seal of AS and pullanda was marked as A. It was alleged that one currency note of ` 100/- pasted on white paper sheet having serial No. 7LH 031937 and one currency note of ` 50/- pasted on white sheet having serial no. OND 177233 were also recovered. It was alleged that these two currency notes were master pieces through which accused used to copy the FICN. Both the currency notes were sealed in separate pullanda with the seal of AS and pullanda was given mark B. Other printing materials, incomplete sheets, cartridges etc. were also recovered and same were sealed in a pullanda and pullandas was given mark B1.
SC No. 12/2011 Page no. 5 of 25
State Vs. Om Prakash & others
(viii) It was alleged that accused Om Prakash had further
disclosed the name of Shiv Kumar and Suleman but their whereabouts could not be traced out.
(ix). After completing the investigation, challan was filed against the accused persons for the offence punishable under Section 489A/489B/489C/489D/34 IPC.
2. After complying with the provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on April 18, 2011. Thereafter, the case was assigned to this Court on May 2, 2011. Accordingly, the case was registered as Sessions Case No.12/2011.
3. Vide order dated May 24, 2011, a charge for the offence punishable under Section 489B/34 IPC was framed against all three accused persons to which they pleaded not guilty and claimed trial. Another charge for the offence punishable under Section 489A/489B/489D IPC was also framed against accused Om Prakash to which he pleaded not guilty and claimed trial. A separate charge for the offence punishable under Section 489C IPC was also framed against accused Sanni and Rohit to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused persons, prosecution has examined as many as following eight witnesses :-
SC No. 12/2011 Page no. 6 of 25
State Vs. Om Prakash & others
PW-1 ASI Mathias Baxla, In-charge of Mal Khanna
PW-2 Sh. Satya Prakash Gupta, brother of Om Prakash
PW-3 ASI Ramesh Chand, duty officer, proved the FIR
and DD No. 8A and 9A
PW-4 HC Ram Gopal, Member of the raiding party
PW-5 SI Satish Rana, complainant & 1st investigating
officer
PW-6 HC Ashok Kumar, member of raiding party
PW-7 ASI Amrik Singh, 2nd investigating officer
PW-8 Sh. Vijender Singh, Senior Scientific Officer, proved
the FSL report
5. Thereafter, accused persons were examined under Section 313 Cr.P.C. in which they denied all the evidence led by the prosecution and refused to lead evidence in their defence. Accused Rohit and Sanni took the plea that police had picked them up from their respective houses and falsely implicated them in this case. Accused Rohit further submitted that when he asked why he had been lifted, police officials had given beating to him. Accused Om Prakash submitted that he had made a complaint to the police against his neighbour Mr. Sharma as he had raised illegal construction in the gali, thereafter, Mr. Sharma in collusion with the police got implicated him in this case. It was submitted that nothing was recovered from his house and the entire case property have been planted upon him.
SC No. 12/2011 Page no. 7 of 25
State Vs. Om Prakash & others
6. Learned counsel appearing for accused Om Prakash strenuously contended that the prosecution case is based on the deposition of police official witnesses but there are so many discrepancies and deficiencies in their deposition that no reliance can be placed on their uncorroborated testimony. It was submitted that PW4 to PW7 had not followed the Punjab Police Rules 1934 as they admitted that they did not use to make entry in the register at the time of their arrival and departure, thus, contended that rojnamcha register can be managed in the Special Cell. It was contended that prosecution case was that the rukka was sent to the police station at about 8.15 PM from the spot and thereafter, an FIR was registered at about 9 PM but duty officer ASI Ram Chander (PW3) in his examination-in-chief, deposed that he had received rukka at about 4.15 PM, thus it was contented that the entire case is concocted. It was further submitted that as per prosecution version, the rukka was sent through HC Ram Gopal (PW4) who in his cross-examination deposed that he had left from the spot to the police station at about 7.45 PM whereas prosecution case is that rukka was prepared at about 8.15 PM. It was further contended that prosecution case is that total 264 FICN were recovered from all the accused persons whereas only 263 fake currency notes were sent to the FSL, Rohini. It was contended that it is not cleared where one note had gone. It was argued that the case property was tempered before it was reached in the hands of expert. It was further contended that the prosecution case is that one master piece of FICN was recovered from the house of accused Om Prakash and with the help of said master piece, accused Om Prakash used to print/copy FICN. It was contended that the alleged master piece was found pasted on a white sheet, thus only one side of FICN could be printed/copied and there is no explanation how the SC No. 12/2011 Page no. 8 of 25 State Vs. Om Prakash & others another side was printed. No master piece of another side was recovered from the house of accused Om Prakash. It was further submitted that the police had not complied with the provisions of law at the time of taking search of the house of accused Om Prakash. Even no effort was made to join any public independent witness, thus, no reliance can be placed on the alleged recovery. No intimation was given to the local police. No sincere efforts were made to join public person at the time of alleged raid and the story of investigating officer that he asked about 20 persons to join the raiding party are not convincing. It was further submitted that investigating officer had deliberately used private vehicles in the raid without maintaining the log book of the vehicle, thus in the absence of log book, prosecution has failed to establish that any such raid was conducted. It was submitted that there are some contradictions between the deposition of PW5 & PW6 as PW5 deposed that the master piece of currency note was having only one side whereas PW6 deposed that it was having two sides. PW6 deposed that HC Ram Gopal returned to the spot after lodging the FIR whereas prosecution case is that he did not come back to the spot.
7. Apart from the above contentions, learned counsel appearing for other accused persons contended that no reliance can be placed on the deposition of police official witnesses as there is a possibility of tempering with the case property because when the case property was produced in the Court, the yellow colour envelopes, in which the FICN were allegedly kept by the accused persons were missing and there is no explanation from the prosecution in this regard. It was further submitted that there is contradiction between the deposition of PW5 & other witnesses as PW5 deposed that after completing the investigation, he SC No. 12/2011 Page no. 9 of 25 State Vs. Om Prakash & others along with team members reached the police station at about 3 AM whereas other witnesses deposed that they reached between 4 AM to 5 AM. It was further submitted that though prosecution case is that entire writing work was done at the spot below the electricity pole but no such electricity pole has been shown in the site plan. It is further submitted that no sincere efforts were made to join the public witness at the time of alleged recovery and in support of his contention, he relied upon two judgments namely Nand Chand Vs. State of Delhi 1991 JCC1 & Mohan Singh Vs. State of Haryana 1995 JCC 565.
8. On the other hand, learned Additional Public Prosecutor refuted the said contentions by arguing that the testimony of police official witnesses cannot be discarded on the mere fact that they are police officials and interested in the conviction of the accused persons. It was submitted that sincere efforts were made to join the public persons before apprehending the accused persons but no public person came forward, thus, it was contended that mere non-joining of public persons is not sufficient to discard the deposition of police official witnesses. It was further contended that the contradictions pointed out by the counsel for accused persons are minor in nature and not fatal to the prosecution case in any manner.
9. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful considerations to their contentions.
SC No. 12/2011 Page no. 10 of 25
State Vs. Om Prakash & others
10. Though prosecution has examined eight witnesses to bring home the guilt of accused persons yet star witnesses of prosecution are only four namely PW4 HC Ram Gopal, PW5 SI Satish Rana, PW6 HC Ashok Kumar and PW7 ASI Amrik Singh. It is also pertinent to state that the entire prosecution case is based on the deposition of police official witnesses as investigators failed to persuade any independent and respectable persons to join the proceedings.
11. First of all, I shall deal with the contentions as to whether there is a scope to manage the case-diary in the Special Cell as police officials posted there do not make any entry of their arrival and departure. However, before that I deem it appropriate to examine as to whether police officials posted at Special Cell are supposed to make entry of their arrival and departure in the register or not?
12. In this regard Rule 22.48 and 22.49 of Chapter XXII of Punjab Police Rules, 1934 are relevant and same are as under:
"22.48 Register No. II - (1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act. It shall be in Form 22.48 (1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in the police station register and the other shall be dispatched to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf.
(2) ------------------------------------------------------------------- (3) -------------------------------------------------------------------
22.49 Matters to be entered in Register No. II. - The SC No. 12/2011 Page no. 11 of 25 State Vs. Om Prakash & others following matters shall, amongst others, be entered.
(a) -------------------------------------------------------------------
(b) -------------------------------------------------------------------
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
(d) Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.
(emphasis supplied) From bare perusal of the above rules it becomes abundantly clear that all police officials irrespective of their rank are bound to record their arrival at the time of joining their duties and departure at the time of leaving their office. Admittedly, Register no. II is being maintained at Special Cell, thus for the purpose of Rule 22.49, it falls within the four corner of 'Police Station.' Thus, the testimony of PW4 to PW7 to the extent that being the officials of Special Cell they are not required to enter their arrival and departure in the daily diary is without any basis. Since, the members of raiding party had not made any entry of their arrival and departure in the register No. II in terms of Rule 22.49 of SC No. 12/2011 Page no. 12 of 25 State Vs. Om Prakash & others Punjab Police Rules, there is substance in the contention of learned counsel for accused persons that there is a scope to manage the rojnamcha i.e. Register No. II.
13. Prosecution case is that after apprehending the accused persons, rukka was prepared and sent to the police station at about 8.15 pm and FIR was registered at 9:00 pm but during trial witnesses did not support the prosecution case. In this regard the testimony of PW3 ASI Ramesh Chand, PW4 HC Ram Gopal and PW6 HC Ashok Kumar are relevant.
14. PW3 in his examination-in-chief deposed that he had received rukka through HC Ram Gopal at about 4.15 pm and thereafter he had registered the FIR. In his cross-examination he admitted that there is overwriting in the FIR at daily diary number. Thus, as per the deposition of duty officer (PW3) the said FIR was registered at 4.15 pm which is contrary to the prosecution version as the rukka was sent from the spot at about 8.15 pm only. It is pertinent to state that the testimony of PW3 to the extent that he had received the rukka at about 4.15 pm was not challenged by the prosecution during his deposition. As already stated that prosecution case is that investigating officer, PW5 SI Satish Rana had sent the rukka to the police station at about 8.15 pm through HC Ram Gopal (PW4) but when PW4 graced the witness box he did not support the prosecution case by deposing that he had left from the spot to lodge an FIR at about 7.45 pm. If rukka was prepared at about 8.15 pm only how could PW4 left from the spot at about 7.45 pm. Further, prosecution case is that after lodging the FIR, PW4 stayed at the police station and did not come back to the spot whereas PW6 HC Ashok SC No. 12/2011 Page no. 13 of 25 State Vs. Om Prakash & others Kumar deposed that after lodging the FIR, HC Ram Gopal reached the spot along with FIR. Though he deposed that he did not recall at what time HC Ram Gopal returned to the spot, yet deposed that he had returned after the arrival of ASI Amrik Singh. From the above, it is explicit that the deposition of PW3, PW4 and PW6 are paradoxical to the prosecution version.
15. Now coming to the contentions relating to the use of private vehicles in conducting the raid delibrately. In this regard the deposition of PW4 to PW7 are relevant.
16. PW5 SI Satish Rana in his examination-in-chief deposed that he had used two private cars and one private gypsy in the raid. He further deposed that cars were being driven by him and inspector Subhash Vats whereas gypsy was being driven by ASI Ajay Vir Singh. In his cross-examination, he deposed that the car that was being driven by him belonged to him but it was in the name of his wife. Though it is not clear to whom the another car and gypsy belonged to, yet it appears that the same belonged to inspector Subhash Vats and ASI Ajay Vir Singh. It is pertinent to state that neither Subhash Vats & Ajay Vir Singh were cited in the list of witnesses nor produced in the witness box during trial. PW4 and PW6 also supported the deposition of PW5 on this aspect. Now question emerges why PW5 had preferred to use private personal vehicles in conducting the raid?
17. PW5 in his cross-examination deposed that at that time Special Cell had 10-12 different type of vehicles and drivers were also posted on the said vehicles. He further deposed that log books are being SC No. 12/2011 Page no. 14 of 25 State Vs. Om Prakash & others maintained in the said vehicles. However, he deposed that he did not remember whether any vehicle was allocated to his team or not at that time. PW4 in his cross-examination admitted that numerous official vehicles were available in the Special Cell along with the drivers. He further deposed that he did not know why official vehicles were not used in conducting the raid or why personal vehicles were used in the raid. Similarly, PW6 deposed that he can not tell any reason why private vehicles were used in raid despite the fact that numerous official vehicles were available in the office at that time. PW7 also admitted that numerous official vehicles were available in the office at that time despite that he also used private vehicle. PW5 deposed that he had borne the fuel expenses of his car spent in the said raid, but he failed to produce any voucher or daily diary in this regard. But PW4 made a contradictory statement by deposing that whenever any police official used his personal vehicle in raid etc, he has to bear the fuel expenses. PW6 deposed that he did not know who had borne the fuel expenses. From their deposition, it is manifested that numerous official vehicles of all types were available in the Special Cell at the time of alleged raid, but PW5 preferred to use personal vehicles in the alleged raid without any special reason. It is not the prosecution case that they had used the private vehicles in order to conceal their identity. Admittedly, no log book of the vehicles used in the raid was maintained. Nor any document was prepared to show how many kilometers said vehicles had travelled. No doubt in some special circumstances, investigating agency is compelled to use private vehicles in order to conceal their identity from the culprits but once they used private vehicles in the raid, it was the paramount duty of the investigator to maintain the log book of the said vehicle. In the instant case neither any reason is furnished to use private vehicles in the SC No. 12/2011 Page no. 15 of 25 State Vs. Om Prakash & others alleged raid nor any log book was maintained. In these circumstances, it is difficult to brush aside the contention raised by learned defence counsels.
18. Now coming to the contentions relating to the issue as to whether investigating officer had followed the provisions of law at the time of taking the search of the house of accused Om Prakash?
19. Section 100 Cr.P.C deals with the general provisions of search. Sub-section 4 to Section 100 Cr.P.C. reads as under:
"Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
(emphasis supplied)
20. Now question arises as to whether such person is required to attend the Court to prove the said search as learned Additional Public Prosecutor strenuously contended that in a city like Delhi no public person comes forward to help the police as such persons do not want to appear before the Court as a witness as it causes lot of hardship to them. Sub-section 5 to Section 100 is the appropriate answer to the said query and same runs as under:
"The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no SC No. 12/2011 Page no. 16 of 25 State Vs. Om Prakash & others person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it."
21. Thus, from sub-section 4 & 5 to Section 100 Cr.P.C. it becomes explicit that before making a search of a house, it is mandatory to call upon two or more independent and respectable inhabitants of the same locality and if no such person is available in the said locality, such persons should be called from other locality. It is pertinent to state that the persons should be independent and respectable. Mere asking from any tom and harry who are not even interested to disclose their name to the police does not amount compliance of the said mandatory provisions.
22. Sub-section 6 to Section 100 Cr.P.C cast a duty to permit the occupants of the premises to join the search and copy of list prepared should be supplied to such occupant. Sub-section 6 reads as under:
"The occupant of the place searched or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person."
(emphasis supplied)
23. It is admitted case of the prosecution that no public witness was called for at the time of taking the search of the house of accused Om Prakash. However, witnesses took the plea that no such person was called for due to odd hours. To my mind, the said plea is not sustainable in the eyes of law as no such exemption is provided to the police officer. Rather in the odd hours, police officers should be more cautious at the time of taking search of the house. It is also admitted case of the prosecution that the wife of accused Om Prakash was present in the SC No. 12/2011 Page no. 17 of 25 State Vs. Om Prakash & others house but no effort was made to join her in the alleged search. PW5 in his cross-examination deposed that investigating officer could call the wife of Om Prakash at the time of alleged recovery from his house and he can not tell any reason why the investigating officer (PW7) had not called her to join the proceedings. PW7 had not given any explanation why she was not called for at the time of alleged recovery. Admittedly, no list of seized articles was delivered to the wife of Om Prakash. Thus, it becomes abundantly clear that investigators failed to comply with the provisions of law at the time of taking search of the house of Om Prakash without any just and reasonable explanation. Even no intimation was given to the local police either before taking the search or thereafter. It is pertinent to state that these provisions are not ornamental but mandatory in nature. But there is no explanation from prosecution why the said provisions were not complied with at the time of alleged recovery from the house of accused Om Prakash.
24. Now turning to the contention as to whether 263 FICN were recovered or 264?
25. Prosecution case is that total 146 FICN of Rs.100/-each were recovered from the accused persons i.e. 35 FICN each were recovered from Sanni and Rohit and 76 FICN were recovered from Om Prakash, thus total 146 FICN (35+35+76) were recovered. The said FICN were sealed in separate pullandas with the seal of SR. However, when the said pullandas were opened in FSL Rohini, as per report Ex. PW8/A, total 145 FICN were found against 146 FICN. The said 145 FICN were marked as X120 to X265. However, when author of Ex. PW8/A i.e. Sh. Vijender Singh Senior Scientific Officer appeared in the witness box as SC No. 12/2011 Page no. 18 of 25 State Vs. Om Prakash & others PW8 and deposed that total 146 FICN of `.100/-each i.e. (35+35+76) were examined by him and all notes were found counterfeited. During cross-examination, no question was put to the witness on what basis total 145 FICN was mentioned in the initial portion of the report. In other words, no opportunity was given to the witness to clarify the said discrepancy. On the converse, during cross-examination, it was not disputed that he had examined total 146 FICN of Rs.100/each and not 145 FICN. Thus, to my mind, it may be a clerical mistake in the initial portion of the report Ex. PW8/A wherein total number of FICN is mentioned as 145. Moreover, when the FICN were produced in the Court, same were 146 in number, thus, I do not find any substance in the contention raised by learned defence counsel.
26. Prosecution version is that two master-pieces of currency of ` 50/- and ` 100/-each were recovered from the house of accused Om Prakash. The said master-piece currency notes were found pasted on the white paper sheet. The serial number found on the said master-piece currency notes was similar to on the recovered FICN. On that basis, it was alleged that accused used to print/copy FICN from the said currency notes. If the master-piece currency notes were pasted on the white paper sheet as alleged by the prosecution, it means that only one side of said master-piece could be used to copy/print the FICN and not both the sides. There is no explanation from the prosecution how the accused could copy/print both sides from the said master-pieces to prepare the FICN. It is pertinent to state that it is not the prosecution case that both the master-pieces were not found pasted on the white paper sheet and in order to preserve the same, said currency notes were pasted by the investigator during investigation. In this regard, the testimony of PW5 SI SC No. 12/2011 Page no. 19 of 25 State Vs. Om Prakash & others Satish Rana, investigating officer is relevant. In his cross-examination he admitted that the master-piece Ex. P-3 is pasted on the white sheet, thus, its one side is not visible. He further deposed that no master-piece was recovered from the house of accused Om Prakash which showed both sides of currency notes. In these circumstances, prosecution has failed to establish how the FICN could be prepared from the recovered master- pieces. Moreover, there is major contradiction between the deposition of PW5 and PW6 as PW6 deposed that dye of both sides of FICN were recovered from the house of accused Om Prakash. If it was so where is that. Admittedly, prosecution has not produced the same in the Court.
27. Now coming to the contention raised by learned counsel as to whether there was any chance of tempering with the case property or not?
28. It is admitted case of the prosecution that when FICN were recovered from the accused persons, same were in yellow colour envelopes and investigating officer had sealed the recovered FICN after keeping the same in the respective envelopes. But when the case property was opened first time in the Court during the deposition of PW4, the said yellow colour envelopes were found missing. It was contended by learned Additional Public Prosecutor that the said envelopes probably had been misplaced in the FSL. Sh. Vijender Singh, Sr. Scientific Officer was examined as PW8 to prove the FSL report but he nowhere deposed that the said FICN were in the yellow colour envelopes as alleged by the prosecution. There is no evidence on record to suggest that when the sealed parcels were reached in the hands of PW8, the recovered FICN were in the sealed yellow colour envelopes. In other words, the possibility SC No. 12/2011 Page no. 20 of 25 State Vs. Om Prakash & others of tempering with the case property cannot be ruled out.
29. It is admitted case of the prosecution that the writing work was carried out at the place of arrest till midnight and all writing work was done either below the light of electricity pole or after sitting in the car. During investigation, investigating officer had prepared the site plan Ex. PW5/C. However, in the said site plan, investigating officer had not denoted the point where the electricity pole was located. If there was no electricity pole at the place of arrest, question of conducting writing work below the electricity pole does not arise.
30. It is admitted case of the prosecution that after completing the investigation, PW5 to PW7 reached the police station together. PW5 in his cross-examination, deposed that he reached the police station at about 2.45 AM whereas PW6 deposed that investigating officer had recorded his statement at Special Cell at about 3.30 AM. This shows that they had reached the Special Cell at about 3.30AM whereas PW7 deposed that he along with the members of raiding party reached to the Special Cell after 3 AM. Though, there is discrepancy between their deposition, yet to my mind, the said discrepancy is not suffice to discard their testimony.
31. It is admitted case of the prosecution that when the accused persons were apprehended, no public person had joined the investigation despite the fact that accused were arrested from the congested place and there were lot of shops and residential premises near the place of occurrence. However, it is also admitted case of the prosecution that PW5 had asked several public persons to join the raiding party on the SC No. 12/2011 Page no. 21 of 25 State Vs. Om Prakash & others way as well as after reaching the spot and PW7 had also made request to the public persons to join the investigation but none came forwards.
32. In case Nanak Chand vs. State of Delhi (supra), it was held by our own Hon`ble High Court that:
"The recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.
33. In case Mohan Singh vs. State of Haryana (supra), Hon`ble Apex Court refused to accept the recovery which was allegedly affected from the Railway Station despite the fact that police had joined one mobile sweet vendor as an independent witness. In this regard, the relevant observations are made in para No. 5 and the same are reproduced as under:
"The prosecution case with regard to the search of the appellant and seizure of a country made pistol from the possession of the appellant rests on the evidence of Hira Lal, PW5, Head Constable Desh Raj PW 6 and sub- Inspector, Baljit Singh, PW 7. The rest of the prosecution witnesses are formal in nature. PW 6 and PW 7 as said above are police officials being Head Constable and sub- Inspector of Police respectively. Only Hira Lal, PW 5 is said to be an independent witness, accordingly to the SC No. 12/2011 Page no. 22 of 25 State Vs. Om Prakash & others prosecution the investigation had taken place in the waiting hall of Rewari Railway Station. Head Constable Desh Raj, PW 6 clearly deposed in cross-examination that 10 to 20 persons were present in the waiting hall at that time. From the evidence of Desh Raj, PW 6 and Baljit Singh, PW 7 it is clear that the Railway Booking Office and tea vendors stall were located near the place where the appellant was apprehended and searched. But no one form amongst the person sitting in waiting hall or any one from the booking office or tea stall was joined as witness by the investigation in the person and seizure of the country made pistol said to have been recovered from the possession of the appellant. From the evidence of PW 6 and PW 7 it does not appear that they made any effort whatsoever to call any public witness or railway officials working in the booking office while taking the search of the appellant and recovery of pistol in that process. No explanation is forth coming for not joining any independent witness. Baljit Singh, PW 7, however, preferred to pick up Hira Lal, PW 5 who is nothing but a mobile sweet vendor. According to the prosecution Hira Lal happened to be there when the appellant was apprehended at that particular time when search of his person was made and the country made pistol is said to have been recovered. In these facts and circumstances when the police officials deliberately avoided to join any public witness or railway officials though available at the time when appellant was apprehended the evidence of Hira Lal who is nothing but a chance witness and the evidence of police officials PW 6 and PW 7 has to be closely scrutinised with certain amount of care and caution."
(emphasis supplied)
34. In the instant case also the investigating officer had not made any sincere efforts to join any independent person at the time of alleged recovery whose identity can be established by the prosecution. In his cross-examination, PW5 categorically admitted that he had not called any respectable person from the nearby locality either at the time of raid or during investigation. In the name of so called 'efforts', investigating SC No. 12/2011 Page no. 23 of 25 State Vs. Om Prakash & others officer had asked some passers by to join the investigation who were not even ready to disclose their names and addresses to him. Such half hearted efforts cannot be termed as 'genuine and sincere efforts'. At least it was expected from the investigating officer that he would make some sincere efforts from the persons whose identity can be established during the course of trial but no such effort was made.
35.. Further, prosecution case is that the raiding party was constituted by PW5 SI Satish Rana under the supervision of Insp. Subhash Vats and the raid was conducted by SI Satish Rana and all work was done by SI Satish Rana. However, PW6 in his cross- examination deposed that Insp. Subhash Vats was the leader of the raiding party and all work was done at the instance of Insp. Subhash Vats. He categorically deposed that the raid was conducted by Insp. Subhash Vats and not by SI Satish Rana. If raid was conducted by Insp. Subhash Vats, there is no explanation from the prosecution why he has not been produced in the witness box. Moreover, from the testimony of witnesses examined by the prosecution, it is explicit that Insp. Subhash Vats had participated in the investigation but investigating officer did not deem it appropriate either to cite him as a witness on the memos allegedly prepared at the spot or cited him in the list of witnesses.
35. Taking into account of the above discussion, I am of the opinion that it will not be safe to rely upon the uncorroborated testimony of police official witnesses, thus I am of the view that all accused persons deserve to the benefit of doubt.
SC No. 12/2011 Page no. 24 of 25
State Vs. Om Prakash & others
36. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused persons beyond the shadow of all reasonable doubts, thus, I hereby acquit all accused persons from all the charges.
37. Case property be confiscated to the State and be destroyed after the expiry of period of appeal or revision or if any appeal or revision is filed then till the decision of such appeal or revision.
38. File be consigned to record room.
Announced in the open Court on this 18th day of August, 2012 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central, Tis Hazari Courts, Delhi SC No. 12/2011 Page no. 25 of 25