Delhi District Court
State vs Upender Kumar Sharma Etc. ... on 13 November, 2013
FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No. 210/00 PS: Bara Hindu Rao U/s : 255/256/257/258/259 IPC Unique ID No.: 02401R0182522000 J U D G M E N T:
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(a) S.No. of the case : 183B/2
(b) Name of complainant : SI Mahesh Kasana, No. D3425, Anti Auto Theft Squad, North District, Delhi.
(c) Date of commission of offence : 28.09.2000 & 29.09.2000
(d) Name of the accused : 1). Upender Kumar Sharma
S/o Sh. Shyam Sunder Shanstri,
R/o Old Tehsil Mohalla, District
Baghpat (U.P.)
2). Devender Sharma @ D.K.
S/o Sh. Karam Singh,
R/o 5/164, Nehru Road, In front
of Arya Nagar, Baraut, District
Baghpat, U.P.
(e) Offence complained of : U/s 255/256/257/258/259 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 31.10.2013
(h) Final Order : Acquitted
(i) Date of such order : 13.11.2013
State V/s Upender Kumar Sharma etc. ("Acquitted") Page 1 of 24
FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief as emanating from the record are that on 28.09.2000, based on one secret information in respect of preparation and selling of fake share stamps, accused Devender Sharma @ D.K. was apprehended by the officials of PS Bara Hindu Rao, from in front of Gurudwara, Rani Jhansi Road, near Azad Market Chowk and 120 sheets of counterfeit share transfer stamps were recovered from him. During investigation, IO conducted the necessary proceedings including preparation of rough sketch, seizure memo of fake share transfer stamps, registration of FIR, recording disclosure statement of accused Devender Sharma, etc. Thereafter, on the instance of accused Devender Sharma, another accused namely Upender Kumar Sharma was also arrested in the matter from whose possession more fake share transfer stamps were recovered. After concluding the necessary investigation, charge sheet was prepared and filed before the Court against both the aforesaid accused persons.
Detail of Court Proceedings:
2. After completion of investigation, both the accused persons namely Devender Kumar and Upender Kumar Sharma stood chargesheeted for offences punishable U/s 255/256/257/258/259 IPC.
3. Thereafter, since some of the offences, involved in the present matter was triable by Ld. Sessions Court, file was committed to Ld. Sessions Judge, State V/s Upender Kumar Sharma etc. ("Acquitted") Page 2 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 Delhi for necessary proceedings. However, vide order dated 09.04.2001 of Ld. ASJ, Delhi, file was remanded back to this Court with the observations that only primafacie case for offence u/s 259 IPC was made out against both the accused persons and both the aforesaid accused persons were discharged for rest of the offences complained in the chargesheet.
4. Accordingly, vide order dated 17.01.2002, charge U/s 259 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused persons, prosecution examined as many as seven witnesses, whereafter the PE in the matter was closed and statements of both the accused persons u/s 313 Cr.P.C. were recorded wherein their defence is of general denial. However, accused did not lead any evidence in their defense.
Evidence Held:
6. A total of seven witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
7. PW1 HC Kaptan Singh was the Duty Officer on the relevant date and time. He proved the factum of recording of FIR in the matter. He exhibited the copy of FIR as Ex.PW1/A. This witness was not cross examined despite being afforded State V/s Upender Kumar Sharma etc. ("Acquitted") Page 3 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 opportunity in this regard.
8. PW2 HC Ashok was the witness who took two sealed pullanda sealed with the seal of MK from MHC (M) at the relevant time vide RC no.40/21 and deposited the same with Indian Government Press, Nasik, Maharastra alongwith examination fee of Rs.1,400/. He also deposited forwarding letter of DCP, copy of which is Ex.PW2/B with the aforesaid Government Press. On his return to Delhi, he handed over receipt on RC to MHC (M) and receipt of DCP letter to the IO. He further stated that case property remained intact till same remained in his possession.
This witness was not cross examined despite being afforded opportunity in this regard.
9. PW3 ASI Mohd. Iqbal deposed that on 28.09.2000 on receipt of secret information to ASI Ashok Tyagi regarding arrival of one person namely Devender Kumar @ DK near Rani Jhansi Raod, Azad Market, involved in the racket of printing and selling of forged share tickets etc., one raiding team was constituted comprising of himself, SI Mahesh Kasana, Ct. Prahlad and HC Randhir etc. and after laying a trap, accused (Devender Kumar @ D.K.) was apprehended at the instance of secret informer. One polythene bag was recovered from the said accused. On checking, the said polythene bag found containing forged stamps on 120 sheets and each sheet were containing 90 stamps of Rs.50/ denominations. IO SI Mahesh Kumar sealed the same after State V/s Upender Kumar Sharma etc. ("Acquitted") Page 4 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 making pullanda and prepared seizure memo Ex.PW3/A. Thereafter, IO prepared rukka and got the FIR registered through Ct. Prahlad. IO prepared site plan. IO arrested the accused vide memo Ex.PW3/B and took personal search of accused vide memo Ex.PW3/C. IO recorded statements of witnesses and after completion necessary formalities, took the accused to PS Bara Hindu Rao and put him behind lockup and case property was deposited in the malkhana. During police custody remand, accused made disclosure statement and on the basis of said disclosure statement Ex.PW3/D, another accused namely Upender Kumar was apprehended from his residence at Baghpat, UP. Thereafter, accused Upender Kumar got recovered 25 more sheets of forged share transfer stamps from his house and same were sealed by IO by making a pullanda vide memo Ex.PW3/E. IO arrested the said accused and took his personal search vide memos Ex.PW3/F & G. This witness correctly identified both the accused persons as well as case property before the Court.
During cross examination, he stated that after receipt of secret information to ASI Ashok Tyagi, they reached at the spot within 7/8 minutes. He admitted that the spot was surrounded by shops and that shops were opened at that time. He did not know whether the shopkeepers were called to join the raiding party or not. He himself did not call any shopkeeper. SI Mahesh Kasana gave him the signal about coming of accused and at about 08:30 PM, accused was apprehended but he did not know the time when ASI Ashok Tyagi was signaled by secret informer about coming of accused. Words 'Big Joss' was written on the polythene bag which was recovered from State V/s Upender Kumar Sharma etc. ("Acquitted") Page 5 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 accused D.K. Sharma. He did not remember the colour of the said polythene. The said bag was handed over to ASI Ashok Tyagi and same remained in his possession. Case property was sealed in his presence. Total 120 sheets were recovered from the possession of accused Devender Kumar Sharma. IO recorded his statement at Gurudwara. IO recorded his second statement at Baghpat on 29.09.2000. He was confronted with his statement to the effect that rukka was handed over to Ct. Prahlad for registration of FIR, however the said fact was not so recorded in his statement u/s 161 Cr.P.C. He had not mentioned about the personal search of accused, putting the accused behind lockup and deposit of case property in malkhana, in his statement u/s 161 Cr.P.C. IO requested public persons to join the raiding party but they refused. Personal search of accused was conducted in his presence. He did not remember whether any currency was recovered from personal search of accused. They did not offer their search before taking search of accused. He stated that the distance between police station and place of incident was approximately 500 to 600 steps. He knew the nearby shopkeepers of said vicinity. There was juice shop near the place from where accused was apprehended. He did not remember whether IO asked any public person to join the investigation or not. He could not tell anything about the said polythene as to whether said polythene was thrown away by the IO or what happened to that polythene. Site plan was prepared in his presence. IO recorded his statement on the spot by sitting on Chabutra around the tree. He alongwith accused and other police officials reached at PS at about 10:30 PM. State V/s Upender Kumar Sharma etc. ("Acquitted") Page 6 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 He denied the suggestion that accused was not interrogated in the PS and no investigation was conducted in the PS. He admitted that disclosure statement of accused was recorded in his presence and he signed the same besides SI Ashok Kumar. The said disclosure statement was recorded by SI Mahesh Kasana. After taking police remand from the concerned Court, they immediately left for Baghpat, UP in one Tempo Traveller, which was permanently alloted to AATS Department. He disclosed the number of said vehicle as DL1V2879. He admitted that one name i.e. Shiv Kumar was disclosed by accused Devender Kumar, however said person could not be apprehended despite sincere efforts at different places including Saharan Pur, UP. They did not ask any of the neighbourers of Upender Kumar to join as a witness in the raiding party. He denied the suggestion that accused Devender Kumar was lifted from his house (Baraut) and nothing was recovered from him or that case property was planted upon the accused or that accused was falsely implicated. This witness denied rest of the suggestions put to him being formal in nature. This witness further stated that he could not tell as to whether family members of accused Devender Kumar were informed about his arrest on 28.09.2000. They did not report about the raid to local police at Baghpat or to any Head Man, Pradhan or any other Civil Authority. Accused Upender made no attempt to run away. Accused Upender was not physically taken into police possession by anybody. Large number of persons gathered outside the house of accused Upender but none agreed to join the investigation. No notice was given to anyone to join the investigation by IO. State V/s Upender Kumar Sharma etc. ("Acquitted") Page 7 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 There was no one present in the house of accused at the ground floor. They stayed at the house of said accused for about half an hour. The room at the ground floor was open. The door of the room in which stamps were recovered was opening at street side. Accused produced the recovered articles after taking out the same from his bed. They took search of the house of accused, however nothing recovered from the said house. They even had not searched any other portion of the house of accused except his room. Recovered articles were sealed at the house of accused Upender Kumar by SI Mahesh Kasana. Seal was with him & SI Mahesh Kasana handed over the same to him. Documents were prepared at the room of accused by SI Kasana in his handwriting. No information was given to any police of Civil Authority about the arrest of accused Upender even while coming back from Bagpat. He denied the suggestion that no such information was given because accused Upender was not arrested from his house at Bagpat.
10. PW4 HC Ram Niwas was the MHC (M) at PS Bara Hindu Rao on 30.09.2000 who deposed that SI Mahesh Kumar Kasana deposited the case property with him vide entry at serial no.1412 in register no.19. He further deposed that on 12.12.2000, he sent the said case property to JM India Security Press, Nasik through HC Ashok Kumar vide RC No.40/21/00 by the order of SHO. He proved the relevant entry as Ex.PW4/A. During cross examination conducted on behalf of accused Devender Kumar, he stated that no case property except the said case property State V/s Upender Kumar Sharma etc. ("Acquitted") Page 8 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 was deposited with him by the IO.
No cross examination was done on behalf of other accused namely Upender Sharma despite being afforded opportunity in this regard.
11. PW5 SI Mahesh Kasana deposed on the similar lines as of PW3 being associated with him during entire proceedings. However, this witness further deposed that he obtained police custody remand of accused Upender Kumar and tried to search for accused Shiv Kumar at different places but could not succeed. Recovered case property was sent to Government Press, Nasik for examination through HC Ashok and Ct. Anil. He filed supplementary chargesheet after receipt of report from Government Press, Nasik. This witness correctly identified both the accused persons as well as case property before the Court.
During cross examination conducted on behalf of the accused Devender Kumar Sharma, he stated that after receipt of secret information to ASI Ashok Tyagi, they reached at the spot within 8/10 minutes. He admitted that the spot was surrounded by shops. However, he showed his inability to tell whether that shops were opened or closed or any juice shop was situated there or not, at that time due to lapse of considerable time. He did not remember whether he checked any vehicle before arresting the accused Devender. He did not offer his search to accused before taking his search. The tickets recovered from the possession of accused, were in poly bag on which 'Big Jos' was printed. He did not seize the polybag in which tickets were there. State V/s Upender Kumar Sharma etc. ("Acquitted") Page 9 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 He admitted that poly bag was not the case property of this case. He did not remember whether he handed over the poly bag to any one or not. He himself deposited the case property in the malkhana. He did not remember as to how many times he recorded the statements of witnesses. He got the signatures of ASI Ashok Tyagi and HC Mohd. Iqbal on the seizure memos. He did not know whether the shopkeepers were called to join the raiding party or not. He denied the suggestion that he did not ask the shopkeepers to be member of the raiding party as he himself had not gone to the spot. They reached at police station from the spot at about 12:00 AM. He denied the suggestion that he had recorded the disclosure statement of accused twice at the spot as well as at the police station. He recorded disclosure statement of the accused at the spot. He took the accused to Baghpat at about 06:00 PM. He did not remember whether local police accompanied them or not. He did not remember whether they went to Baghpat by a private vehicle or in a government vehicle. He denied the suggestion put to him being formal in nature.
During cross examination conducted on behalf of accused Upender, he stated that he did not remember to whom he informed about the arrest of accused Upender. They left Delhi for Baghpat at about 04:30 PM. He did not remember whether they made the search of the house of said accused. He further stated that till the time they remained present at the house of accused, they were outside his house in the street. He denied rest of the suggestions being formal in nature.
State V/s Upender Kumar Sharma etc. ("Acquitted") Page 10 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013
12. PW6 SI Ashok Kumar deposed on the similar lines as of PW3 & PW5 being associated with them during entire proceedings. This witness correctly identified both the accused persons as well as case property before the Court.
During cross examination conducted on behalf of both the accused persons, he was put similar kinds of question as were put to PW3 and PW5. He stated that secret informer gave him the signal about coming of accused at about 08:35 PM. The polythene bag was handed over to SI Mahesh Kasana and same remained in his possession. Case property was sealed and deposited in the malkhana in his presence. IO recorded his statement on road in front of Gurudwara. They had not offered their search prior to taking search of accused Devender. Accused Devender did not disclose the name of such person to whom he was supposed to sell the said fake tickets. IO had informed the family members of accused Devender at the time of his arrest. There was no male member present at the house of accused Upender except him, though there were some ladies in the house. Accused Upender was interrogated inside his house. They had not called any neighbour of accused Upender during interrogation. Accused himself produced the documents to SI Mahesh Kasana. IO and accused Upender had gone inside the room from where the said documents were produced by accused. House of accused was not searched by them. He denied the suggestions put to him being formal in nature.
State V/s Upender Kumar Sharma etc. ("Acquitted") Page 11 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013
13. PW7 Constable Prahlad Singh deposed on the similar lines as of PW3, PW5 and PW6 being associated with them during entire proceedings. This witness correctly identified both the accused persons as well as case property before the Court.
During cross examination conducted on behalf of both the accused persons, he was put similar kinds of question as were put to PW3, PW5 and PW6. He stated that the bag from which the tickets were recovered, was made of cloth. Case property alongwith cloth bags was seized in his presence. He denied the suggestions put to him being formal in nature.
Arguments advanced and Court view
14. Ld. APP has argued that all the material witnesses examined during trial, have supported the case of prosecution on all material points. She also referred to the testimonies available on record as well as the documents proved during trial. Ld. APP also referred to the provision contained in S.28 IPC in support of her contention that the share stamps recovered from the accused, are counterfeit which also stands proved from the report Ex.PX issued by India Security Press, Nasik. Ld. APP further argued that accused failed to furnish any explanation about the possession of huge quantity of share stamps which also forms an additional link of circumstance proving the charges levelled against them.
15. Per contra, Ld. Defense counsels appearing on behalf of both the accused persons, argued that there are various contradictions in the State V/s Upender Kumar Sharma etc. ("Acquitted") Page 12 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 testimonies of prosecution witnesses examined during trial. They also pointed out those material contradictions which shall be discussed in detail in subsequent paras. Ld. Defence counsel further argued that there is absolute non compliance of S.100 (4) Cr.P.C. so far as recovery of share stamp from the house of accused Upender Kumar at Baghpat, UP, is concerned. Ld. counsel of accused Upender Kumar argued that there is nothing on record to show that police party ever visited Baghpat (UP) at any point of time as it has been admitted by prosecution witnesses during their respective cross examination that neither they made any arrival or departure entry in local police station of Baghpat(UP) nor they any effort was made to associate the local police, either during alleged recovery proceedings or even subsequent thereto.
Ld. counsel of accused Devender Kumar further argued that no independent public witness has been joined at the time of alleged recovery of share stamp from the possession of said accused despite the fact that he is claimed to have been apprehended from public place. In this regard, he also referred to the relevant portion of cross examination of PW3 namely ASI Mohd. Iqbal who admitted that the spot was surrounded by shops which were lying opened at that time but still, he did not call any shopkeeper to join the raiding party. It was further argued on behalf of accused Devender Kumar that the poly bag allegedly containing share stamps, was neither seized nor produced during trial. In this regard, Ld. counsel of said accused also referred to the relevant portion of the testimonies of the alleged recovery witnesses State V/s Upender Kumar Sharma etc. ("Acquitted") Page 13 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 examined by prosecution on this aspect.
16. It is well settled law that the prosecution has to prove its case beyond reasonable doubt. It is equally well settled law that prosecution cannot draw any advantage out of the weakness in defense of the accused. Still if any authority is required reference with advantage can be made to the judgment reported at State of Himachal Pradesh v/s Dharam Dass, 1992(1) C.L.R, wherein it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
In another matter titled as "Thakorbhi Viribhai Vasava & others V/s The State of Gujrat" Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled that in criminal trials, even a slightest doubt raised in favour of accused ordinarily entitles the accused to get acquittal.
17. It is quite evident from the aforesaid discussion that accused Devender Kumar @ D.K. Was initially apprehended by the police official on the basis of secret information received by PW6 namely SI Ashok Tyagi (the then ASI). It is relevant to note that said accused is claimed to have been apprehended at State V/s Upender Kumar Sharma etc. ("Acquitted") Page 14 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 about 08:35 PM from near Azad Market Chowk which is a busy and crowded place. It has been admitted by all the prosecution witnesses who were allegedly present at that time that there were many shops situated near the spot and also that some of the shops were lying opened. However, no sincere effort is shown to have been made by any of those police officials either to join any of those shopkeepers in the raiding party or atleast to witness the recovery proceedings.
18. In a case law reported as Anoop Joshi v/s State,1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In case law reported as Sadhu Singh V/s State of Punjab, 1997(3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: State V/s Upender Kumar Sharma etc. ("Acquitted") Page 15 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 "xxxxxxx
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
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19. There is another aspect involved in the matter. The police official i.e. PW5 namely SI Mahesh Kasana (the then ASI) did not offer his own search to the said accused before conducting his search. This fact has been admitted State V/s Upender Kumar Sharma etc. ("Acquitted") Page 16 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 by all the three material witnesses i.e. PW3, PW5 and PW6 during their respective cross examination on behalf of accused Devender Kumar that they did not offer their search to the said accused before taking his cursory search.
20. Not only this, it is also important to note that share stamps allegedly found in possession of accused Devender Kumar @ DK were contained in polybag on which words 'Big Jos' were written as also stated by those prosecution witnesses. Thus, said poly bag was also part of the case property but said poly bag is neither shown to have been taken into police possession nor actually produced before the Court throughout the trial. Rather, it has been admitted by PW5 namely SI Mahesh Kasana that he did not seize the polybag in which share tickets were kept. He also admitted that said polybag was not made as part of the case property in the present case. That being so, Court is of the view that there has been serious lacunas in the case of prosecution on this aspect as no explanation whatsoever has been furnished by the prosecution witnesses for not seizing the said polybag. Same creates reasonable doubt on the point of recovery of share tickets/share stamps from the possession of accused Devender Kumar @ DK.
21. Now, let us discuss the credibility of the prosecution witnesses on the aspect of recovery of share stamps from the house of other accused namely Upender Kumar Sharma. In this regard, the prosecution story is that accused Devender Kumar @ DK alongwith police party visited the house of said State V/s Upender Kumar Sharma etc. ("Acquitted") Page 17 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 accused situated at Baghpat (UP) where he (accused Upender Kumar Sharma) got recovered 25 sheets of forged share transfer stamp certificates from his house. PW2 namely ASI Mohd. Iqbal testified during cross examination by accused Upender that a larger number of persons had gathered outside the house of said accused but none agreed to join the investigation despite request made by IO, in this regard. He admitted that no notice whatsoever was given to anyone for joining the investigation. However, said part of his testimony stands contradicted with the relevant portion of the testimony of PW6 namely SI Ashok Kumar who deposed that none of the neighbour had visited the house at the time of interrogation of accused. Rather, he admitted this fact that police officials did not call any neighbour of accused Upender Kumar Sharma during investigation. Anyhow, on the basis of said admission, one fact is clear that no sincere effort was made by police officials to join any respectable of the locality during search proceedings.
22. Although, Ld. APP argued that S.100 (4) Cr.P.C. is not applicable in this case as accused Upender Kumar Sharma himself had produced the counterfeit stamps on his own after taking them out from the room of his house but the said contention is found to be without any merit. There are contradictory statements on this aspect coming from the mouth of various prosecution witnesses who were allegedly present at that time. PW3 namely ASI Mohd. Iqbal claimed that they had carried out search of the accused and the accused Upender Kumar Sharma had led the police party inside the room State V/s Upender Kumar Sharma etc. ("Acquitted") Page 18 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 wherefrom he got the share stamp lying inside his bed, recovered in their presence. PW5 namely SI Mahesh Kasana has given entirely different version on this aspect when he claimed that accused Upender Kumar Sharma was called outside his house by accused Devender Kumar @ DK and subsequently, said accused (Upender Kumar Sharma) produced 25 sheets of share transfer tickets from his house. The said witness even went to the extent of deposing before the Court that police officials did not enter inside the house of accused Upender Kumar Sharma as they remained present outside the said house in the street. PW6 namely SI Ashok Kumar has given yet another version by deposing that accused Upender Kumar Sharma was interrogated inside his house and IO (PW5) had gone inside the room alongwith accused Upender Kumar Sharma wherefrom those share transfer stamps were got recovered by him.
23. In view of aforesaid three different contradictory version given by alleged recovery witnesses, Court is of the view that IO (PW5) ought to have complied with provision contained in S.100 (4) Cr.P.C. which is mandatory in nature as the word 'shall' has been used therein. Having not done so, serious doubt is casted upon the prosecution case and the benefit thereof is to be given to the accused.
24. Even otherwise, there are various material contradictions appearing in the testimonies of prosecution witnesses examined during trial as also pointed State V/s Upender Kumar Sharma etc. ("Acquitted") Page 19 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 out on behalf of both the accused. Firstly, PW3 namely ASI Mohd. Iqbal claimed during his cross examination recorded on 16.12.2010 that IO (P5) had requested public persons to join the raiding party before apprehending accused Devender Kumar @ DK but they refused. However, PW5 (IO) namely SI Mahesh Kasana could not tell as to whether he had asked any shopkeepers or any other person to become member of raiding party at that time. Secondly, PW3 deposed that there was a juice shop near the place wherefrom accused Devender Kumar @ DK was apprehended but again PW5 (SI Mahesh Kasana) could not tell as to whether any juice shop was situated near the spot or not. Thirdly, PW3 claimed that he alongwith accused Devender Kumar and other police officials had reached PS Bara Hindu Rao at about 10:35 PM on 28.09.2000 which is again contradictory to the relevant portion of the testimony of PW5 who claimed that they had reached PS Bara Hindu Rao from the spot at about 12 midnight. Fourthly, PW3 ASI Mohd. Iqbal testified that police party alongwith accused Devender Kumar @ DK had gone to Baghpat (UP) in government vehicle i.e. Tempo Traveller bearing registration no. DL1V02879 but PW5 namely SI Mahesh Kasana (IO) could not tell as to whether they had gone to the said place by private vehicle or by government vehicle. Fifthly, PW3 namely ASI Mohd Iqbal claimed that large number of persons had gathered outside the house of accused Upender Kumar Sharma but none agreed to join the investigation despite being requested. However, the testimony of PW5 namely SI Mahesh Kasana (IO) is totally silent on the said aspect. Sixthly, PW5 namely SI Mahesh Kasana State V/s Upender Kumar Sharma etc. ("Acquitted") Page 20 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 claimed that accused Upender Kumar Sharma came outside his house at the instance of co accused namely Devender Kumar @ D.K and he himself had produced share transfer stamps outside his house and also that none of the police officials went inside the house. The said part of his statement is again contradictory to the relevant statement of PW6 namely SI Ashok Kumar who claimed that accused Upender Kumar Sharma was interrogated inside his house as also that IO(PW5) and said accused had gone inside the room where from share transfer stamps were produced before IO. Seventhly, the prosecution story as mentioned in the charge sheet and the testimonies of alleged recovery witnesses except that of PW7 namely Ct. Perhlad, reveals that it was a plastic polythene bag which was containing share transfer stamps allegedly recovered from the possession of accused Devender Kumar @ D.K but PW7 made contradictory statement during cross examination by testifying that said bag was made of cloth. Eightly, the prosecution story recites that the secret information was received by PW6 namely SI Ashok Kumar but it has come on record in the cross examination of PW3 recorded on 05.08.08 that it was PW5 namely SI Mahesh Kasana who had given him(PW3) signal about coming of accused Devender Kumar @ D.K on that day.
25. The perusal of the testimonies of prosecution witnesses in the light of prosecution story as mentioned in the charge sheet, goes to show that investigation has not been conducted in proper and fair manner. As rightly State V/s Upender Kumar Sharma etc. ("Acquitted") Page 21 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 pointed out by Ld defence counsels, no explanation has been furnished by the prosecution witnesses more particularly IO(PW5) for not making sincere efforts to identify unit wherein forged share transfer stamps were being prepared, as disclosed by accused Devender Kumar @ D.K in his disclosure statement Ex PW3/D. Not only this, accused Upender Kumar Sharma also disclosed the involvement of one another person namely Sh Shiv Kumar to be the person who used to assist him in preparing forged share transfer stamps. The disclosure statement Ex PW5/C of accused Upender Kumar Sharma further reveals that according to his disclosure, said Shiv Kumar had handed over share stamps to him for selling the same in Delhi. He also stated in said disclosure that he could get the unit of Shiv Kumar used for preparing those forged share transfer stamps, raided. However, there is nothing on record which may show that efforts were made by investigating agency to identify the said unit or to apprehend Shiv Kumar during the course of investigation. In fact, disclosure statement Ex PW5/C of accused Upender Kumar Sharma is absolutely silent about the material particulars of said Shiv Kumar including name of his father, residential address, address of the manufacturing unit wherein forged share transfer stamps were prepared, etc. It was the duty of investigating officer to interrogate the said accused on all these relevant points in order to elicit the relevant information for the purpose of conducting raids so that Shiv Kumar could have been apprehended and manufacturing unit could have been exposed. Although, it has been claimed by PW6 namely SI Ashok Kumar that they had tried to apprehend Shiv Kumar at various places State V/s Upender Kumar Sharma etc. ("Acquitted") Page 22 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 like Loni Gole Chakkar and Railway Stations of Baghpat, Sharanpur, Etc. but it is quite strange as to how and on what basis, the police team visited those places to apprehend Shiv Kumar when there was no mention about those places in the disclosure statement Ex PW5/C. Likewise, police team did not obtain police custody remand of accused Upender Kumar Sharma for the purpose of making any effort to identify the place where forged share transfer stamps were being prepared and/or to apprehend Shiv Kumar, as disclosed by him in his disclosure statement Ex PW5/C. In this backdrop, relevant part of the statement made by prosecution witnesses that no effort was made by them to carry out search in the house of accused Upender Kumar Sharma, also assumes importance. Having come to know about the fact that accused Upender Kumar Sharma was involved in preparing forged share transfer stamps in some unit, the least which was expected from the investigating agency was to carry out search atleast in the house of said accused. It is also relevant to note that PW6 namely SI Ashok Kumar claimed during his cross examination that female member was present in the house of accused Upender Kumar Sharma, who was informed about his arrest. However, the said part of his statement is again contradictory to arrest memo Ex PW3/F of said accused wherein it is mentioned in the relevant column that wife of said accused had been informed about his arrest through telephone.
26. In the light of aforesaid discussion, Court is of the view that prosecution could not establish the the complete chain of events leading to State V/s Upender Kumar Sharma etc. ("Acquitted") Page 23 of 24 FIR No. 210/00 PS Bara Hindu Rao : U/s 255/256/257/258/259 IPC DOD: 13.11.2013 the guilt of either of the two accused persons beyond reasonable doubt. Consequently, both the accused persons namely Upender Kumar Sharma and Devender Kumar @ D.K are entitled to benefit of doubt. Hence, both the said accused persons are hereby acquitted of the charge levelled against them. Their personal bonds stand cancelled. However, their surety bonds shall remain in force for a period of six months in terms of Section 437A Cr.PC. Both the said accused shall appear before the Higher Court as and when any notice of appeal/revision is received by them. Case property be confiscated to the State. File be consigned to Record Room.
Announced in the open court (Vidya Prakash)
on 13.11.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Upender Kumar Sharma etc. ("Acquitted") Page 24 of 24