Delhi District Court
State vs Sakir S/O Nasruddin R/O Bear F.M School, ... on 26 February, 2011
1
IN THE COURT OF MS SAVITA RAO ADDL.SESSIONS
JUDGE (EAST02) DELHI
SC NO. 65/10
DATE OF INSTITUTION 16.11.2006
DATE OF RESERVE FOR ORDER: 19.2.2011
DATE OF DECISION: : 26.02.2011
State Vs Sakir s/o Nasruddin r/o Bear F.M School, Village Sikri Kalan, P.S.
Modi Nagar, Ghaziabad UP.
2. Vinod Kumar s/o Mangal Singh r/o Village Sikri Kalan P.S. Modinagar
Ghaziabad UP. (discharged)
FIR No. 427/06
P.S. Mandawali
U/s 489B/489C/34 IPC
JUDGEMENT
1. The prosecution case is based upon the facts that on 8.8.2010, on receipt of the secret information that one person, namely, Sakir who deals with fake currency notes would come to Balko Market with fake currency notes. A raiding team was constituted consisting of ASI Babu Ram, Ct. Jeet Ram, Ct. Chaman Singh. Some passers by were approached to join the raiding party but none of them agreed. At about 7.45pm, accused Sakir came from the side of Sai Chowk to Balko Market and stood infront of Balko Market and on the pointing out of secret informer, Ct. Chaman started 2 conversation with accused, whereas Ct. Jeet Pal was hearing the conversation hiding himself behind the tree. Initially, accused was not ready but later on became ready to supply fake currency notes and demanded Rs. 100/ in exchange of three fake currency notes of same denomination. Ct. Jeet Pal handed over the note of Rs. 500/ and accused handed over 15 fake currency notes of Rs. 100/ to Ct. Chaman. On the preappointed signal by the raiding party, the accused was apprehended and from his search ten fake currency notes of Rs. 100/ denomination were also recovered from the accused which were sealed in an envelop. The case was registered against the accused and based upon his disclosure statement, accused Vinod was also arrested who was later on discharged. The currency notes recovered from the accused Sakir were sent for CFSL examination. The disclosure statement of accused Vinod was also recorded who named one Sameer Ahemad who had supplied the fake currency notes but despite the search conducted for him he was not traced out nor the instrument used for printing of fake currency notes were recovered. After completing the other formal investigation, the charge sheet u/s 489B/489C/34 IPC was presented before the court for trial.
2. After having heard, the charge u/s 489B/489C/34 IPC was framed against accused Sakir whereas other accused Vinod was discharged. Accused Sakir pleaded not guilty and claimed trial.
3. In order to substantiate the charge, the prosecution has relied upon the testimonies of nine witnesses.
4. PW 1 Chaman Singh was the witness who had entered into transaction with respect to exchange of three currency notes in lieu of genuine currency note of same denomination and on the completion 3 of said transaction the accused was apprehended with more fake currency notes.
5. PW2 HC Ajit Singh deposed that on 19.9.2006 he had collected two sealed parcels sealed with the seal of BR, containing counterfeit currency notes and delivered the same on 21.9.2006 at Currency notes press, Nasik against receipt and handed over the copy of receipt and RC No. 57/21/06 to the MHC (M). He testified that so long as the case property remained in his possession it was intact and was not tempered with. PW3 HC Rajender Prasad is the MHC (M) who deposed that on 8.8.2006 SI Mangesh Tyagi deposited three sealed pullandas sealed with the seal of BR in Malkhana in case FIR No. 427/06 and he entered the same in register No. 19 at sl. N. 1546. He further deposed that on 19.9.2006 the pullandas were handed over to Ct. Ajit vide RC No. 57/21 for depositing the same with security press Nasik and after depositing the same, Ct. Ajit handed over him a receipt of RC which was tagged with RC book. He proved the copy of register No.19 on which the entry was made as Ex. PW3/A. PW4 HC Amarjeet Singh is the witness of FIR and he proved the copy of FIR as Ex. PW4/A. PW5 ASI Babu Ram and PW6 Ct. Jeet Pal have deposed on the same line as deposed by Ct. Chaman in his deposition. PW5 has proved the rukka which was prepared by him as Ex. PW5/A.
6. PW7 Inspector Mangesh Tyagi is the witness who conducted the investigation of the instant case.
7. Accused has been examined u/s 313 CrPC. The entire incriminating evidence was put to the accused wherein he pleaded his false implication and innocence. He stated that he never did any business of fake currency notes. He was lifted by the police from his residence. 4
8. I have heard the arguments on behalf of State by Ld. Addl. PP Sh. A.K Mishra as well as Sh. G.M Faruqi, Ld. Counsel for the defence and gone through the record.
9. PW1 deposed that on 8.8.2006 at about 7.00pm a secret information was received that one person, namely Sakir who deals in fake currency notes, will come to Balko Market IP Extension with fake currency notes. Without waisting their time, they reached at Jai Laxmi Apartment corner. ASI Babu Ram then formed a raiding party and gave a five hundred denomination note to Ct. Jeet Ram and instructed him to act as decoy customer. Ct. Jeet Pal was also searched by ASI Babu Ram and he was not allowed to carry anything except Rs. 500/.The currency note of Rs. 500/ was handed over to Ct. Jeet pal to deal with the accused with fake currency note. Four or five public persons were asked to join the raiding party but they refused to join the raiding party. He further deposed that he was instructed to act as a shadow witness to Ct. Jeet Pal and he was instructed to hear the talks and directed to give the signal by putting his hand on his head after completion of transaction. He further deposed that at about 7.45pm one person came from the side of Sai Chowk to Balko Market and started waiting in front of Balko Market and at the pointing out of secret informer, he and Ct. Jeet Pal were sent near that person by ASI Babu Ram and Ct. Jeet Pal started talking with that person. He was hearing the conversation between Ct. Jeet Pal and that person by hiding himself behind the tree. Initially, that person was not ready but became ready to supply fake currency notes.
That person demanded Rs. 100/ for giving three
fake currency notes of Rs. 100/. He further deposed that Ct. Jeet Pal
handed over currency note of Rs. 500/ denomination to
5
that person and that person handed over 15 currency notes of Rs. 100/ denomination to Ct. Jeet Pal. He gave the preappointed signal to the members of the raiding party and that person was apprehended by the raiding party whose name was revealed as Shakir. Ct. Jeet Pal handed over 15 fake currency notes of Rs. 100/ denomination which he had received from accused. It was taken into police possession vide memo Ex.PW1/B. One currency note of Rs. 500/ denomination which was given to Ct. Jeet Pal by ASI Babu Ram was recovered from the pocket of accused Shakir which was sealed in a envelop with the seal of BR and taken into possession vide memo Ex. PW1/C. He further deposed that from the search of accused Shakir ten fake currency notes of Rs. 100/ denomination were also recovered and same were taken into police possession vide memo Ex.PW1/D. He proved the disclosure statement of accused vide memo Ex. PW1/E. He further deposed that ASI Babu Ram had prepared the rukka and he took the same to P.S and got the case registered and after registration of the case, the investigation was handed over to SI Mangesh Tyagi and he handed over the copy of FIR and original rukka to him who came on spot alongwith him. He also proved the arrest memo of accused as Ex. PW1/F and personal search memo vide Ex. PW1/G. The witness correctly identified the accused as well as case property produced before him in the court.
10. PW6 Ct. Jeet Pal is also an important witness being the member of raiding party and he deposed about receiving secret information about the accused, apprehension of accused, recovery of fake currency notes from the accused as well as arrest of the accused. He deposed that he talked to the accused about counterfeit currency notes and he told him that if he will give him one genuine currency note of Rs. 100/ then he will give him three fake 6 currency notes of Rs. 100/. Thereafter, accused was apprehended on receiving the signal from Ct. Chaman Lal. He further deposed about the proceedings conducted by the IO in the instant matter like registration of the case by sending rukka at PS etc.
11. PW7 Inspector Mangesh Tyagi is the second IO of the present case and he deposed that on 8.8.2006 Ct. Chaman came and gave him one copy of FIR of the instant case alongwith original documents as the case was marked to him for further investigation by the duty officer. Thereafter, he along with Ct. Chaman reached at spot i.e. near Balko Market, I.P Extn. Delhi and at the spot ASI Babu Ram, Ct. Jeet Pal, Ct. Sudhir and Ct. Rajeev met him along with accused Shakir. ASI Babu Ram handed over him three sealed pullandas having seal of BR along with four memos and accused. He inspected the spot and prepared the site plan as Ex. PW1/DB. He recorded the statement of ASI Babu Ram u/s 161 CrPC. Thereafter, he interrogated the accused and his disclosure statement was recorded vide memo Ex. PW1/E. Accused was also arrested vide memo Ex. PW1/F and is personal search memo was also conducted vide memo Ex. PW1/G. He had sent the accused to LBS hospital along with Ct. Chaman and Ct. Jeetpal on 9.8.2006. He further deposed that the accused was produced in the court and he obtained one day PC remand of the accused through application carbon copy of which is Ex. PW7/A. He further deposed that in the evening dated 9.8.2006 he along with Ct. Jeetpal, Ct. Sudhir, Ct. Chaman and accused Shakir left the P.S in a private vehicle for village Sikri Kalan for the search of coaccused namely Vinod and Sameer Ahmed whose names were disclosed by accused Shakir in his disclosure statement but both accused could not find them. He further deposed that on 23.8.2006 one secret informer informed 7 him that the accused Vinod will come in a short while at bus stand Anand Vihar. Thereafter, he along with Ct. Siya Ram and secret informer reached at bus stand Anand Vihar where at the pointing out and identification of secret informer, he apprehended the accused Vinod. He had instructed to SI Rishi Pal to produce the accused in court and he obtained one day PC remand of accused Vinod for the arrest of other accused Sameer Ahmed. He along with his staff took accused to Meerut for search of Sameer but in vain. He tendered in evidence the report CNP.DY No. 533/06 dated 21.9.2006 of currency notes press of the examiner Sh. R.B Shirwadkar, Asstt. Works Manager, Gazetted Officer, Class 1 for G.M, Currency notes Press is Ex. PW7/G.
10. Following points emerged/arguments raised in the case. A. Memo Ex. PW1/A to Ex.PW1D bear FIR number though were prepared before the registration of the FIR and it was admitted by PW1 and PW6 that these memos were already written when they signed over the same. Whereas PW 5 also admitted that memo Ex.PW1/A to Ex. PW1/D were written by him before obtaining signatures of witnesses. Reliance was placed upon 2000 (2) JCC 420 , Delhi, Lalji Shukla Vs State, 2000 (1) JCC 21 Delhi, Ashok Kumar Vs State, 2000 (2) JCC 430 Delhi Jitender Vs State wherein inter alia it was held that the documents which were prepared prior to the registration of the FIR but bearing the FIR number given on the top of the document in the same ink and in the same handwriting was indicative of the fact that the prosecution story was made up and far from the reality. In the instance case, in fact, the date as written beneath the particular of the witness was also not written by the witnesses but by IO. It was argued by Ld. Addl. PP that it is not necessary that all the statements were to be recorded in 8 handwriting of IO which contention is correct but in the instant case the documents particularly Ex. PW1/A to PW1/D were in one handwriting without any explanation for the contention as raised by Ld. Counsel for defence. B. There is unexplained delay of one month and 11 days in sending the case property for expert opinion, therefore the possibility of tampering cannot be ruled out. There is no statement of PW 3 regarding filling up of FSL form by ASI Babu Ram after recovery of fake currency notes. It was sought to be rebutted by Ld. Addl. PP by submitting that though there was delay in sending the currency notes for expert opinion but it was not fatal since number of notes in seizure memo were given and same were sent for expert opinion, therefore there was no possibility of tampering out. However, no explanation was furnished by the prosecution for overwriting on Ex. PW1/B1 and the other lacunas which are being discussed later on. The reliance was also placed upon 2006 (3) JCC 1382 Jitender Vs State, 2000 (3) CCC HC 18, Radha Kishan Vs State, 1997 (1) SVLR (HC) (Cr) Adeseqren Jaqson Vs State wherein it was observed interalia that CFSL from should not only be prepared at the place of occurrence when the case property was seized from the accused but the same should accompany the case property right from the recovery till the delivery of the case property to CFSL. Delay in sending the recovered articles for chemical examination leads to conclusion of possibility of foul play.
C. Road certificate i.e. register No. 21 to prove the transportation of case property from Malkhana to expert, not produced in court as admitted by PW3. No mention of deposit of FSL form by SI Mangesh Tyagi as per register No. 19 Ex.PW3/A. Reliance placed upon 1993 JCC (3) Delhi, Willson Dayal Vs State.
9D. Currency notes of Rs. 500/ was arranged by PW5 from his own pocket but no such reimbursement of Rs. 500/ was claimed by PW5 from his department and also as admitted by IO the said note of Rs. 500/ was not sent to the expert for opinion .
E. The disclosure statement Ex.PW1/E was recorded on 9.8.2006. It was deposed by PW1 that disclosure statement was recorded before arrest of accused though PW6 stated that it was recorded after about one hour of his arrest. Besides the above said, had the disclosure statement was given by accused voluntarily, nothing stopped the IO from getting such statement recorded as per the provision of section 164 CrPC which would then have been admissible in evidence at least.
F. The accused was pointed out by the secret informer but no separate pointing out memo was prepared. Reliance was placed upon II 1992 CCR 1735.
G. It was argued that the presence of two witnesses, namely, Ct. Rajeev and Ct. Sudhir remained doubtful as they were not made the witnesses to any of the documents prepared by the IO, at the same time, gave the contradictory statements from each other.
H. There was also found overwriting at point X, Y and Z on Ex.PW1/B with no explanation for the same by the IO, though he denied the suggestion that it was not on account of the fact that the fake currency notes were planted to implicate the accused.
I. PW6 had read his statement prior to coming into the witness box and even the particulars were noted down by him on the summons of the court. In these circumstances, it was argued that statement of such witness would be discarded. Reliance is placed upon 1985 CRLJ 1773 M.P Ram 10 Vilas Vs State of Madhya Pradesh. and 1993 (1) CCC 316 (HC) it was inter alia held that if the statement narrated by the witness not in witness box but shortly before entering in it, the evidence of such witness would be in admissible in view of section 162 Evidence Act.
J. PW7 proceeded for further proceeding along with Ct. Chaman Lal and Ct. Jeet Pal in search of remaining accused persons and returned on 10.8.2006 but the charge sheet filed did not find any such part of investigation. PW7 also did not tell whether the information was given to local police at Modi Nagar and Meerut whereas PW7 who as part of the same team had also not mentioned about any such visit and at the same time PW7 stated that they went to Meerut and Modi Nagar at 7.00am and returned back at 1.30/2.00pm. This witness did not know if IO had informed to local police despite being the part of same team. No DD entry has been placed on record to prove the movement of PW5 and PW7 after recovery of fake currency notes.
K. It was also argued that the expert report Ex. PW1/G cannot be read in evidence because it was not summoned by the court when an application was filed on behalf of accused to this effect for which the reliance is placed upon 1975 SCC (CR) 336 Phool Kumar Vs Delhi Administration wherein it was held that when neither the court thought it fit nor the prosecution or the accused filed any application to summon and examine as to the subject matter of his report and held that no objection can be taken at appellate stage by the accused against his non examination. However perusal of record reveals that this witness was summoned who cited his unavailability to appear before the court and requested for acceptance of opinion report as evidence u/s 292/293 CrPC. It is also from the record that 11 though an application for summoning of expert was moved on behalf of the defence and the matter was fixed up for arguments on that application also but it seems that the said application was never pressed for and the final arguments were addressed. Even otherwise as per amended act of 2006, the expert report is perse admissible in evidence in terms of section 292/293 CrPC and therefore this objection on behalf of defence is not tenable.
L. Last but not least it was argued that no independent witness was joined in the proceeding. According to version of prosecution, 5/6 passersby were asked to join the proceedings before raid but none of them agreed to do so. It was admitted by the prosecution witnesses that on the refusal of the public witnesses no notice was issued by the IO u/s 187/188 IPC. The place of occurrence was admittedly thickly populated area. The prosecution witnesses admitted that the place of incident was thorough fair surrounded by the shops of Balkbo Market, hockers on pavements and residential flats of housing society. I agree with the contention of Ld. Addl. PP that once such secret information is received, the requirement is for the immediate action and at that time the police cannot get into the procedural formality, but the facts remains that including the public witnesses is not a mere formality, that too at the place where there was abundance of public witnesses as well as sufficient time with the police party to include the public witnesses during the proceedings. Even if the some of the public persons have refused citing the genuine reason, any shopkeeper could have been any public witness or even the security guard who were present at the gates of the society surrounding the place of incident. Admittedly, no such course was adopted by the investigating team. No sincere and genuine efforts seems to have 12 been made in this respect except for citing of routine excuse of non cooperation of passersby.
The reliance was placed upon 1995 JCC 110 Munni Lal Vs State and CRLA No. 205 /1990 Ashok Kumar Vs State wherein interalia with respect to the same, based upon the testimony of only police officials, it was held that no conviction should be made solely on the testimony of police officials without any corroboration from any independent source. If public witness declined to cooperate without any reasonable cause it will be deemed the offence punishable u/s 187 IPC which is clearly spelt out in section 100 (8) CrPC.
12. Besides, the above said, the accused was asked by the PW1 to sell him the fake currency note in lieu of genuine note for which the accused agreed to. It was argued by Ld. Addl. PP that in exchange of one genuine note, the accused had agreed to give three notes of the same denomination which he would agree to give only, if the notes were fake. However, this situation would arise if the accused really wishes to do so. In the instant matter, admittedly, PW1 was unknown for the accused. It is not the case of the prosecution that accused tried to pass the fake currency note as genuine nor that he was apprehended with fake currency note on the secret information received but it is a case where the accused had voluntarily agreed to exchange fake currency notes in lieu of genuine notes which preposition is difficult to believe. It is unlikely that accused would have agreed to enter into transaction with an unknown person since even any criminal in these circumstances, at least would take this much precaution to not to transact in this manner with an unknown person.
Having discussed above, I have no hesitation to conclude 13 that the prosecution has not been able to prove its case against the accused beyond the shadow of all reasonable doubts, the accused Sakir acquitted of the charge against him. However, his surety shall remain bound for six months in compliance of Section 437A of CrPC. File be consigned to Record Room.
Announced in the open court On this day of 26.2.2011 ( SAVITA RAO) Additional Sessions Judge, KarkardoomaCourts, Delhi.
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