Delhi District Court
State vs . Irfan & Other on 31 January, 2012
State Vs. Irfan & Other
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 14/2011
State Vs. : 1. Irfan
S/o Sh. Maqsood Ali
R/o E48/134A,
Old Seema Puri Delhi.
2. Rajesh Arora @ Bittoo
S/o Late Sh Munshi Lal Arora
R/o A522, Double Storey,
Kalkaji, New Delhi
FIR No. 354/2008
P.S. Okhla Industrial Area
U/s 489B/489C/489D IPC
Date of Institution : 15/10/2008
Date when arguments
were heard : 25/01/2012
Date of Judgment : 31/01/2012
SC No. 14/2011 1/35
State Vs. Irfan & Other
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
ASI Nizamuddin (PW1) alongwith Ct Kishan (PW3) were present near D10/1, Phase II in Okhla Industrial Area at about 1.30 pm for enquiry concerning DD No. 9 when secret informer informed ASI Nizamuddin (PW1) that at Puri Chowk bus stand a person is waiting for the bus having in his possession counterfeit currency notes and can be apprehended on raid. ASI Nizamuddin (PW1) requested passersbyes and vendors to join proceedings but all went away disclosing their reasonable inability. Without wasting time, ASI Nizamuddin (PW1) organized raiding party consisting of himself and Ct Kishan (PW3) and with secret informer reached Puri Chowk where he met Ct Yasin Khan (PW10) while patrolling who was also told about the secret information and joined him in the raiding party. At about 1.45 pm secret informer pointed towards accused Irfan who was apprehended at said place. The passengers at bus stand were told about the circumstances and asked to join the SC No. 14/2011 2/35 State Vs. Irfan & Other proceedings but all went away disclosing their reasonable inability.
The yellow polythene in right hand of accused Irfan had 130 counterfeit currency notes of denomination of Rs 1,000/ each; having only one number 3BN896112 printed on them; 100 counterfeit currency notes of Rs 500/ denomination each on which there was no. 4GV354671 printed; 140 counterfeit currency notes of denomination of Rs 500/ each on which no. 4GV354670 was printed; 10 counterfeit currency notes of Rs 100/ each on which no. STU230228 was printed. On checking of the said notes, on the left side, the impression of Gandhiji could not be seen and colour of the notes did not appear normal and on enquiry accused Irfan could not give any satisfactory reply. Knowing fully well, accused Irfan kept in possession the counterfeit currency notes of Rs 2,51,000/. Aforesaid counterfeit currency notes were kept in the said yellow polythene, parcel was prepared and sealed. Tehrir Ex PW1/C was prepared by ASI Nizamuddin (PW1) who sent Ct. Krishan Kumar (PW3) with tehrir to police station for getting FIR registered. Ct Krishan Kumar (PW3) gave tehrir to duty officer HC Jawahar Singh (PW4) who recorded FIR No. 354/08, under Section 489 C of IPC. SC No. 14/2011 3/35
State Vs. Irfan & Other Copy of the FIR and tehrir were given to Ct Krishan Kumar (PW3) to be given to ASI Nizamuddin (PW1) for further investigation. In the course of investigation ASI Nizamuddin (PW1) prepared site plan, recorded disclosure statement of accused Irfan, recorded statement of witnesses, obtained police custody remand of accused Irfan. Accused Irfan led the police party to the house of accused Rajesh Arora @ Bittoo at Flat No. A522, Double Storey, Kalkaji, New Delhi where the disclosure statement of accused Rajesh Arora @ Bittoo was recorded. Pursuant to his disclosure statement, accused Rajesh Arora @ Bittoo got recovered counterfeit currency notes of Rs 1,21,100/; raw material; CPU, Printer; monitor from his said flat, which case properties were sealed in parcels. Accused Rajesh Arora @ Bittoo was arrested. CPU, Printer and Monitor were sent to CFSL, Chandigarh and counterfeit currency notes were sent to RBI Printing Press, Nasik for analysis.
On completion of investigation, charge sheet for offences under Sections 489B/489C/489D/120B IPC was filed.
2. After completion of requirements under Section 207 SC No. 14/2011 4/35 State Vs. Irfan & Other Cr.P.C., matter was committed to the court of Sessions. CHARGE
3. On 30/10/2010, charge for offences under Sections 489BIPC; 489C IPC and 489D IPC was framed against the accused Rajesh Arora @ Bittoo and separate charge for offence under Section 489C IPC was framed against the accused Irfan by my Ld. Predecessor to which they pleaded not guilty and claimed trial. WITNESSES:
4. To connect the accused with the offences charged, prosecution has examined in all 10 witnesses namely SI (then ASI) Nizamuddin (PW1); HC Jitender Singh (PW2); Ct Krishan Kumar (PW3); ASI Jawahar Singh (PW4); Ct Amit Kumar (PW5); HC Ami Chand (PW6); HC Naim Ahmed (PW7); HC M.M Khan (PW8); Sh M.P Bain, Assistant Works Manager (PW9) and Ct Yasin Khan (PW10).
STATEMENTS OF ACCUSED:
5. Thereafter accused persons were examined under SC No. 14/2011 5/35 State Vs. Irfan & Other Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons.
6. Accused Irfan stated that his nephews Shahdab and Shahvez were detained by officials of PP Okhla PhaseII from 15.08.08 to 16.08.08. Accused Irfan further stated that at 1.30pm or 2.00pm on 16.08.08, he reached at said police post; his nephews were left and he was detained; he was told by police officials that fake currency notes were recovered from him. Accused Irfan stated that he was not having any fake currency notes and he had not given any disclosure statement.
7. Accused Rajesh Arora @ Bittoo stated that this was a false case against him and he had gone from his house to drop his children to school at about 6.45am on 19.08.08; he left his children at school namely K.R. Manglam School at Greater Kailash, PartI and thereafter, he went for morning walk at the road and park in Kalkaji; he returned to his home at about 8.15am and his wife told him that two police officials had come of which name of one was Nizamuddin and SC No. 14/2011 6/35 State Vs. Irfan & Other he had given a notice in the name of his wife and that she was asked to bring her husband i.e. accused to PS Okhla before 10.00am that day. Accused Rajesh Arora @ Bittoo stated that he and his wife went to PS Okhla at about 9.45am; police officials inquired from him and his wife; he was kept there; after two hours his wife was left; police officials told his wife that after sometime they will also leave him and that she would come again next morning at 10.00am; he was detained in the PS; he was arrested and did not know whether police officials went to his house or elsewhere and what they had done. Police officials obtained his signatures on 3/4 blank papers.
8. Both accused led defence evidence. DW1 Smt Puneet Arora, wife of accused Rajesh Arora; DW2 Mohd Lukman; DW3 Shahdab and DW4 Shahvez Ahmed were examined in defence evidence. DWs 2, 3 and 4 corroborated version of accused Irfan elicited in para 6 above.
ARGUMENTS
9. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the SC No. 14/2011 7/35 State Vs. Irfan & Other evidence led and given my thoughts to the rival contentions put forth.
10. Ld. Addl. PP for the State argued that testimonies of the material witnesses of recovery are consistent with regard of the amount of counterfeit currency notes recovered from the arrayed accused and the places from where recovery was effected; such recovered notes were of similar series and on record is the opinion of Sh M.P Bain, Assistant Works Manager, Currency Note Press, Nasik of such notes on examination were found to be counterfeit. Ld. Addl. PP for the State further argued that the accused persons were in the possession of counterfeit currency notes which they knowingly had retained with intention to use the same as genuine. Ld. Addl. PP for the State also argued that accused Rajesh Arora @ Bittoo had handed over the counterfeit currency notes to accused Irfan knowingly for selling or trafficking and and from said accused Rajesh Arora @ Bittoo even the raw material papers, paper cutter, articles, CPU and instrument etc. for use of printing of forged currency notes were recovered which he knowingly retained with intention to use them for forging and counterfeiting the currency SC No. 14/2011 8/35 State Vs. Irfan & Other notes. Ld. Addl. PP for the State has prayed for conviction of the accused persons.
11. Ld. Defence counsels for the accused argued that the report of forensic expert finds no mention of any incriminating fact of use of alleged recovered computer in printing counterfeit currency notes; no independent witness has been joined in the alleged apprehension of accused and their subsequent disclosure statements or recoveries of case properties from or at instance of the accused persons. It has also been argued that no scientific investigation has been done of the accused being acquainted, known or in any way connected inter se. Also has been argued that the police witnesses of alleged arrest, recoveries have testified in material contradictions with each other as well as with the prosecution case and their testimonies are not reliable nor worthy of credence to rest conviction of the accused. Ld. Counsels for accused have prayed for the acquittal of the accused as prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt. SC No. 14/2011 9/35
State Vs. Irfan & Other APPRECIATION OF EVIDENCE:
12. SI (then ASI) Nizamuddin (PW1) with Ct Krishan (PW3) had gone to D10/1, PhaseII, Okhla Industrial Area, New Delhi on receipt of DD No. 9, Ex PW1/A from HC M.M Khan (PW8) and there at about 1.30 pm, secret informer met him pursuant to which he organized a raiding party, reached Puri Chowk, bus stand. Before organization of raiding party, SI (then ASI) Nizamuddin (PW1) had asked few public persons to join the raiding party but none agreed. Near the Puri Chowk bus stand Ct Yasin (PW10) on patrolling duty met SI (then ASI) Nizamuddin (PW1) and Ct Yasin (PW10) was also joined in the raiding party. SI (then ASI) Nizamuddin (PW1) testified that at about 1.45 pm secret informer pointed towards accused Irfan at said Puri Chowk bus stand and then secret informer left the spot. Then SI (then ASI) Nizamuddin (PW1) with the help of Ct Krishan Kumar (PW3) and Ct Yasin (PW10) apprehended accused Irfan.
13. Ct Krishan Kumar (PW3) testified that he with SI (then ASI) Nizamuddin (PW1) had reached Puri Chowk bus stand but Ct Krishan Kumar (PW3) does not say of secret informer having SC No. 14/2011 10/35 State Vs. Irfan & Other accompanied them and pointed towards accused Irfan there. Ct Krishan Kumar (PW3) simplicitor testified that on direction of SI (then ASI) Nizamuddin (PW1), they had caught hold of accused Irfan.
14. Ct Yasin Khan (PW10) testified of having met SI (then ASI) Nizamuddin (PW1) and Ct Krishan Kumar (PW3) at Puri Chowk bus stand. Ct Yasin Khan (PW10) does not whisper of having met secret informer or seen secret informer there. Ct Yasin Khan (PW10) testified of the fact that they apprehended accused Irfan at 1.40 pm. Both PWs 3 and 10 accordingly did not say that accused Irfan was apprehended on pointing out of secret informer, as has been so alleged by SI (then ASI) Nizamuddin (PW1).
15. SI (then ASI) Nizamuddin (PW1) testified that accused Irfan was having a bag and on search of the bag, it was found containing currency notes in denomination of Rs 1,000/, Rs. 500/ and Rs 100/; total amount was Rs 2,51,000/. SI (then ASI) Nizamuddin (PW1) was unable to testify the numbers of such seized currency notes of denomination of Rs 1,000/, Rs 500/ and Rs 100/. SC No. 14/2011 11/35
16. Ct Krishan Kumar (PW3) testified that accused Irfan was having yellow polythene which was found containing 130 currency notes of denomination of Rs 1,000/; 240 currency notes of denomination of Rs 500/ and 10 currency notes of denomination of Rs 100/. Also Ct Krishan Kumar (PW3) stated that said notes were kept in the same polythene. Ct Yasin Khan (PW10) testified that accused Irfan was having yellow coloured bag which was searched.
17. Allegedly seized counterfeit currency notes from accused Irfan were initially produced in court in the course of testimony of Ct Krishan Kumar (PW3) in one sealed paper parcel. Report Ex PW1/P of Sh M.P Bain, Assistant Works Manager, Currency Note Press, Nasik finds mention of the examined notes to be counterfeit and returned in sealed condition after examination as they were so received for examination. Sh M.P Bain (PW9) testified that he had received two sealed parcels and not one.
18. Ct Krishan Kumar (PW3) stated that the 130 currency SC No. 14/2011 12/35 State Vs. Irfan & Other notes of denomination of Rs 1000/, Ex P1/1 to Ex P1/130 were recovered from accused Irfan but could not say which 240 notes out of 453 currency notes of denomination of Rs 500/, Ex P2/1 to Ex P2/453 and which ten currency notes of denomination of Rs 100/ out of Ex P3/1 to Ex P3/66 were so allegedly recovered from accused Irfan. Sh M.P Bain (PW9) did not speak of receipt of the counterfeit currency notes for examination in any yellow polythene. SI (then ASI) Nizamuddin (PW1) and Ct Yasin Khan (PW10) speak of recovery of bag and not polythene from accused Irfan containing counterfeit currency notes. Ct Yasin Khan (PW10) stated it to be yellow coloured bag which was containing the counterfeit currency notes. Ct Krishan Kumar (PW3) stated that in the same polythene the currency notes recovered were kept. No such yellow polythene has been produced by the prosecution in court during entire prosecution evidence.
19. SI (then ASI) Nizamuddin (PW1) testified that on 17/08/2008 after use seal was handed over to Ct Yasin Khan (PW10) and on 19/08/2008 after use seal was handed over to Ct Krishan SC No. 14/2011 13/35 State Vs. Irfan & Other Kumar (PW3). SI (then ASI) Nizamuddin (PW1) elicited that when they started on 19/08/2008 from police station seal was with him. SI (then ASI) Nizamuddin (PW1) further stated that from 17/08/2008 till 19/08/2008 for entire period the seal remained with him but again said that after sealing on 17/08/2008 seal was given to Ct Yasin Khan (PW10); after deposit of case property in Mal Khana, SI (then ASI) Nizamuddin (PW1) took seal from Ct Yasin Khan (PW10); after deposit of case property on 19/08/2008 SI (then ASI) Nizamuddin (PW1) obtained seal back from Ct Yasin Khan (PW10). Per contra to version of SI (then ASI) Nizamuddin (PW1), Ct Krishan Kumar (PW3) did not whisper a word of handing over of seal to him by SI (then ASI) Nizamuddin (PW1) on 19/08/2008. Infact in testimony of Ct Krishan Kumar (PW3), there is no mention of the fact that he infact had joined the investigation on 19/08/2008.
20. Regarding arrest of accused Irfan and bringing him to P.S, testimonies of material witnesses Ct Yasin Khan (PW10); Ct Krishan Kumar (PW3) and SI (then ASI) Nizamuddin (PW1) are at variance. Ct Yasin Khan (PW10) testified that at 4.30 pm accused Irfan was SC No. 14/2011 14/35 State Vs. Irfan & Other arrested at the spot but he did not remember who was informed by SI (then ASI) Nizamuddin (PW1) about arrest of accused Irfan. Ct Krishan Kumar (PW3) testified that later to his return to spot at 4 pm, after getting FIR registered, accused Irfan was arrested. SI (then ASI) Nizamuddin (PW1), organizer of raiding party and king pin of investigation, testified that from the spot after arrest of accused Irfan, they had reached police station after 4 pm while accused Irfan was put in lock up at 5 pm, that too after medical examination. SI (then ASI) Nizamuddin (PW1) could not elaborate as to when and from where such medical examination of accused Irfan was got conducted. On record there is no document to elicit or prove that accused Irfan was so medically examined on 17/08/2008.
21. Aforesaid material witnesses PW1, PW3 and PW10 have also testified in contradiction with each other regarding when and in which manner they had left the spot on 17/08/2008. Ct Yasin Khan (PW10) testified that he left the spot at 7.30 pm on 17/08/2008 and had gone on motorcycle to police station. Ct Yasin Khan (PW10) stated that SI (then ASI) Nizamuddin (PW1), Ct Krishan Kumar SC No. 14/2011 15/35 State Vs. Irfan & Other (PW3) and accused Irfan had gone from spot in TSR to police station, though SI (then ASI) Nizamuddin (PW1) had not recorded the statement of TSR driver. Also, Ct Yasin Khan (PW10) stated that SI (then ASI) Nizamuddin (PW1) had not waited for any person for whom accused Irfan was waiting at spot. Though Ct Yasin Khan (PW10) stated that he recorded the arrival daily diary at police station but he was unable to tell the number of the same. No copy of such daily diary has been placed on record.
22. SI (then ASI) Nizamuddin (PW1) testified that they remained at the spot viz., Puri Chowk bus stand for about 20 minutes, regarding which he again said that they remained there for one and half or two hours and there they did the writing work; Ct Yasin Khan (PW10) was at police picket. SI (then ASI) Nizamuddin (PW1) further stated that they had reached the police station after 4 pm and at about 5 pm accused Irfan was put in lock up after his medical examination.
23. Ct Krishan Kumar (PW3) testified that on 17/08/2008 SC No. 14/2011 16/35 State Vs. Irfan & Other they remained at spot till 3 pm, he left with rukka at 3 pm and returned at 4 pm, finally they left the spot at 5 pm and returned to police station. In the meanwhile public persons came and went, while they remained at the spot.
24. It is the case of prosecution that on 18/08/2008, accused Irfan was produced in court and his police custody remand was obtained till 20/08/2008 with direction to produce him on 20/08/2008 after his medical examination. No such medical examination of accused Irfan is on record. SI (then ASI) Nizamuddin (PW1) testified that on 19/08/08 accused Irfan was produced in court and on that day two days police remand was obtained.
25. It is also the case of prosecution that accused Irfan had led the police party to the house of accused Rajesh Arora @ Bittoo on 19/08/2008.
26. With regards to alleged recovery of counterfeit currency notes at said house of accused Rajesh Arora @ Bittoo bearing flat no. SC No. 14/2011 17/35
State Vs. Irfan & Other A522, Double Storey, Kalkaji, New Delhi, the cited and examined material witnesses namely SI (then ASI) Nizamuddin (PW1); HC Naim Ahmed (PW7) and Ct Yasin Khan (PW10) narrated their different tales in material contradiction with version of each other as well as of the presented case of prosecution.
27. Seizure memo Ex PW1/9 finds mention of the fact of the alleged recovery of counterfeit currency notes, totaling Rs 1,12,100/ from underneath the sofa seat lying in the house of accused Rajesh Arora @ Bittoo. In his examinationinchief, HC Naim Ahmed (PW7) testified that the counterfeit currency notes were recovered from the pillow on the bed in the house of accused Rajesh Arora @ Bittoo. On being cross examined by Ld. Addl. PP for the State, HC Naim Ahmed (PW7) categorically denied of entire recovery of the counterfeit currency notes from under the seat of sofa at house of accused Rajesh Arora @ Bittoo but volunteered to say that some notes were recovered from the pillow and some under the seat of sofa but HC Naim Ahmed (PW7) could not elicit which currency notes and how many counterfeit currency notes were so recovered. SI SC No. 14/2011 18/35 State Vs. Irfan & Other (then ASI) Nizamuddin (PW1) simplicitor testified that recovery of the counterfeit currency notes was effected from house of accused Rajesh Arora @ Bittoo on search of the room. PW1 did not specify nor elaborated such place (s) of such recovery.
28. Ct Yasin Khan (PW10) though stated in his examination in chief that the counterfeit currency notes were recovered from house of accused Rajesh Arora @ Bittoo, but he did not specify its exact place in the house. In his cross examination, Ct Yasin Khan (PW10) deposed that accused Rajesh Arora @ Bittoo disclosed that the currency notes were lying in his bed. There is no whisper in testimony of Ct Yasin Khan (PW10) of such alleged recovery of currency notes at house of accused Rajesh Arora @ Bittoo from beneath the sofa seat. The alleged disclosure statement Ex PW1/K of accused Rajesh Arora has no mention that the said accused could get recovered any fake currency notes from his house or even the fact that the recovery had already been effected from his house.
29. Arrest of accused Rajesh Arora @ Bittoo and its manner SC No. 14/2011 19/35 State Vs. Irfan & Other has also been testified at variance by the material witnesses. HC Naim Ahmed (PW7) testified that on 19/08/2008 they with accused Irfan went to DDA Flats, Kalkaji in search of accused Rajesh Arora @ Bittoo and when they reached DDA Flats, Kalkaji, (not DDA Flats, Double Storey, Kalkaji) accused Rajesh Arora @ Bittoo was found standing below the DDA Flats, from where he was apprehended on the pointing out of accused Irfan and there he was arrested and at that very place, disclosure statement Ex PW1/K of accused Rajesh Arora @ Bittoo was recorded. As per HC Naim Ahmed (PW7), pursuant to disclosure statement Ex PW1/K, accused Rajesh Arora @ Bittoo led police party to his DDA flat at first floor.
30. SI (then ASI) Nizamuddin (PW1) testified that they remained outside the house of accused Rajesh Arora @ Bittoo only for 5/10 minutes and no writing work was done outside the house of accused Rajesh Arora @ Bittoo. As per SI (then ASI) Nizamuddin (PW1), the disclosure statement Ex PW1/K of accused Rajesh Arora @ Bittoo was written after the seizure memo Ex PW1/N was prepared at the house of accused Rajesh Arora @ Bittoo. HC Naim SC No. 14/2011 20/35 State Vs. Irfan & Other Ahmed (PW7) in the course of his cross examination narrated all together different version, saying that on seeing them, accused Rajesh Arora went inside his house, did not try to run away and when they had gone to house of accused Rajesh Arora, accused Rajesh Arora was not called outside; no investigation work was done outside the house of accused Rajesh Arora. Ct Yasin Khan (PW10) testified that after parking the vehicle, they all members of raiding party straightway went to the house of accused Rajesh Arora @ Bittoo, did not stop in the way; the door of the flat of accused Rajesh Arora was bolted from inside, which was opened when they rang bell; it was wife of accused Rajesh Arora @ Bittoo who opened the door, before entering the flat SI (then ASI) Nizamuddin (PW1) had told the wife of accused Rajesh Arora @ Bittoo the purpose of visit.
31. The entire tenor of cross examination of Ct Yasin Khan (PW10) carried import that as soon as they entered in the flat of accused Rajesh Arora @ Bittoo, they searched the flat, made the recoveries within 15/20 minutes, in which time no writing work was done by IO, thereafter accused was arrested and then SI (then ASI) SC No. 14/2011 21/35 State Vs. Irfan & Other Nizamuddin (PW1) prepared the documents. In the course of his examinationinchief, Ct Yasin Khan (PW10) stated that after recording of the disclosure statement, accused Rajesh Arora got effected the alleged recoveries. When Ct Yasin Khan (PW10) was specifically asked which of his two aforesaid versions was correct, Ct Yasin Khan (PW10) replied, both statements are correct. Above two versions are contrary to each other. Either the disclosure statement was recorded first and then recovery was effected or after recovery was effected then disclosure statement was recorded. These two versions of the matter cannot go together but are inter se contradictory and make the statement of Ct Yasin Khan (PW10) self contradictory.
32. From the alleged search of flat A522, Double Storey, Kalkaji of accused Rajesh Arora @ Bittoo, counterfeit currency notes amounting to Rs. 1,12,100/ comprising 213 notes of Rs. 500, amongst Ex. P2/1 to 453 and 56 notes of Rs. 100 denomination amongst Ex. P3/1 to 66 were allegedly recovered; most of currency notes were found having same series number and their colour was also more SC No. 14/2011 22/35 State Vs. Irfan & Other yellowish than the original currency notes; apart from currency notes, a CPU Ex. P4, a printer Ex. P6, a monitor Ex. P5, raw materials i.e. loose papers Ex. P8 and paper cutter with blue plastic handle Ex. P7; used for printing currency notes were also allegedly recovered from the house of accused Rajesh Arora; PW1 SI Nizamuddin converted them into parcels and sealed them with the seal of NDK and seized the same vide memo Ex. PW1/N, Ex. PW1/M and Ex. PW1/L respectively; SI (then ASI) Nizamuddin (PW1) also prepared site plan, Ex. PW1/O of the place of the said recovery.
33. Aforesaid CPU, Monitor, printer cum scanner were examined by the forensic expert and as per report Ex PW1/Q, dated 30/01/09, of CFSL, Chandigarh, no data significant to the case was found/retrieved from the hard disk of 80 GB in CPU; colour printer cum scanner was found in working order, could be used to print in colour. Said report also finds mention that it was not possible to say if the said colour printer cum scanner could have been used for printing currency notes. Accordingly, said report of CFSL has nothing in it to incriminate accused Rajesh Arora as such type CPU, SC No. 14/2011 23/35 State Vs. Irfan & Other printer, monitor are common in use and the hard disk was not found containing any data incriminating accused, more specifically pointing and proving to the fact of the use of the computer in printing counterfeit currency notes.
34. SI (then ASI) Nizamuddin (PW1) deposed in his cross examination that at the house of accused Rajesh Arora, besides him his mother, wife and a boy was there. Also, SI (then ASI) Nizamuddin (PW1) stated that arrest of accused Rajesh Arora was informed to his mother who was residing in nearby Kalkaji flats. SI (then ASI) Nizamuddin (PW1) in the course of his testimony gave another different version, saying of accused Rajesh Arora, his wife and child were present at the time of arrest of accused, while mother of accused was not there. HC Naim Ahmed (PW7) stated that the information of arrest of accused Rajesh Arora was given to his wife but later on he himself admitted that aforesaid fact of giving of information of arrest of accused Rajesh Arora to his wife was incorrect and fact of giving of the information of arrest of accused Rajesh Arora to his mother was correct.
SC No. 14/2011 24/35
35. SI (then ASI) Nizamuddin (PW1) testified that the computer recovered at the house of accused Rajesh Arora was not started but the printer recovered was checked by starting it to check whether it was in working order. HC Naim Ahmed (PW7) testified that neither computer nor printer were started at the house of accused Rajesh Arora, the place of recovery.
36. Smt Puneet Arora (DW1) testified that on 19/08/08 at about 7 am her husband accused Rajesh Arora had gone to drop their son to school and at his back at 7 am two police officials had come to her house, one amongst them was SI (then ASI) Nizamuddin (PW1) and they enquired about her husband. Smt Puneet Arora (DW1) further stated that she told them that accused had gone to drop her son to school and then go for morning walk. Upon that, notice Ex DW1/DB was served on DW1 by SI (then ASI) Nizamuddin (PW1) asking her to come to police station Okhla Industrial Area at about 10 am. On return of husband of Smt Puneet Arora (DW1) at 8.30 or 8.45 am, DW1 disclosed above said fact and at about 9.45 am they went SC No. 14/2011 25/35 State Vs. Irfan & Other to police station, met SI (then ASI) Nizamuddin (PW1). Smt Puneet Arora (DW1) stated that she was also asked by SI (then ASI) Nizamuddin (PW1) to come on 20/08/2008 at about 10 am. Upon that she left the police station and came to her home but her husband accused was not set free by SI (then ASI) Nizamuddin (PW1) due to which she even rang to him twice or thrice to know when accused Rajesh Arora would be released. Later in the evening at about 7.30 pm, upon making call to police station, SI (then ASI) Nizamuddin (PW1) told Smt Puneet Arora (DW1) of arrest of accused Rajesh Arora and she was asked to come on 20/08/2008 at 10 am at police station. When on 20/08/2008, Smt Puneeet Arora (DW1) went to police station, she was told of the arrest of accused Rajesh Arora but not the reasons of arrest and she was asked to go to the Court.
37. In the case of State of Haryana vs Ram Singh, 2002 (1) JCC 385, it was inter alia held that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence SC No. 14/2011 26/35 State Vs. Irfan & Other witnesses at par with that of the prosecution.
38. In the course of his cross examination SI (then ASI) Nizamuddin (PW1) initially flatly denied of knowing any person by the name of Puneet Arora. When SI (then ASI) Nizamuddin (PW1) was confronted with photocopy Ex PW1/DA of original notice under Section 160 Cr.P.C, Ex PW1/DB then initially SI (then ASI) Nizamuddin (PW1) stated that such notice was issued by SI (then ASI) Nizamuddin (PW1) whose copy was Ex PW1/DA. SI (then ASI) Nizamuddin (PW1) stated that said notice was given at police station and Smt Puneet Arora (DW1) had come in the police station in the morning to meet her husband and to give him the food. Within moments, SI (then ASI) Nizamuddin (PW1) changed his version, saying original of Ex PW1/DA was given at 7 pm and not at 7 am while in the copy Ex PW1/DA 'pm' has been changed to 'am'. SI (then ASI) Nizamuddin (PW1) further volunteered and said the wife of accused had come in the evening at 7 pm and not in the morning at 7 am. When SI (then ASI) Nizamuddin (PW1) was unable to remember whether or not he mentioned in his case diary of giving of SC No. 14/2011 27/35 State Vs. Irfan & Other any notice under Section 160 Cr.P.C to Puneet Arora (DW1), he then refreshed his memory, saw the case diary but found no mention thereof giving of any notice to the wife of accused. Original notice Ex PW1/DB placed on record by the defence counsel in the further cross examination of PW1, falsifies the version of SI (then ASI) Nizamuddin (PW1) of any change of aforesaid 'pm' to 'am'. Notice Ex PW1/DB infact fully corroborates the version of Smt Puneet Arora (DW1), as elicited above and demolishes the put forth version of prosecution including that of SI (then ASI) Nizamuddin (PW1) of the apprehension of accused Rajesh Arora in the evening from his flat on 19/08/2008. SI (then ASI) Nizamuddin (PW1) in the course of his cross examination stated that they had reached at the flat of accused Rajesh Arora on 19/08/2008 at 5 pm and had reached police station at 7 or 7.30 pm after arrest and later to medical examination of accused Rajesh Arora. If that is so, there was no occasion at all to give notice under Section 160 Cr.P.C at 7 pm by SI (then ASI) Nizamuddin (PW1) to wife of accused Rajesh Arora. Even in Ex PW1/DB, there is clear mention of asking of SI (then ASI) Nizamuddin (PW1) to Puneet Arora (DW1) to appear before SI (then ASI) Nizamuddin SC No. 14/2011 28/35 State Vs. Irfan & Other (PW1) on 19/08/2008 at 10 am.
39. It was candidly admitted by SI (then ASI) Nizamuddin (PW1) that no enquiries were conducted about involvement of accused Rajesh Arora @ Bittoo in any previous matter of counterfeit currency notes or being acquainted or knowing co accused Irfan. Also, SI (then ASI) Nizamuddin (PW1) admitted that before conducing the search at house of accused Rajesh Arora, they had not offered themselves for search to accused Rajesh Arora. As per presented case of prosecution and admitted in the course of cross examination by SI (then ASI) Nizamuddin (PW1), one mobile phone each were recovered from accused Irfan and Rajesh Arora @ Bittoo. No call details records of mobile phones of the arrayed accused were obtained from the services providers of these mobile phones to verify acquaintance /nexus inter se accused. SI (then ASI) Nizamuddin (PW1) further admitted that he had even not checked himself or through any other member of his staff, the call histories i.e, received calls or out going calls from the seized mobile phones of the accused. Even SI (then ASI) Nizamuddin (PW1) did not check from SC No. 14/2011 29/35 State Vs. Irfan & Other the mobile phone of the accused as to whether in their instrument telephone number of the other accused was saved in the 'Contacts' or 'Call history' or any SMS was received or SMS was sent. Further, SI (then ASI) Nizamuddin (PW1) admitted that he had not investigated the aspect as to at any place the counterfeit currency notes were used by any of the accused at any point of time.
40. The prosecution has not examined the Mal Khana Mohrar and the entries of the deposits of exhibits in Mal Khana, sending of the exhibits from Mal Khana as well as Road Certificate which facts of the matter stand not proved. Admittedly, sample seal was not deposited with the Mal Khana Moharar. Sh M.P Bain, Assistant Work Manager (PW9) testified of having received two parcels with sample seal. In the course of cross examination of Ct Krishan Kumar (PW3), for the first time when the case property was produced in evidence, it was one paper parcel sealed with the seal of Chhalarth Patra Mudralay, Nasik Road. The yellow polythene bag from which counterfeit currency notes allegedly recovered from accused Irfan had not been produced in the course of evidence. The prosecution SC No. 14/2011 30/35 State Vs. Irfan & Other has not been able to prove that after alleged seizures of the case properties including the counterfeit currency notes, same were not tempered with till its production in court during evidence.
41. Sh M.P Bain, Assistant Works Manager (PW9) stated of having given report to Ct Siri Ram. Said Ct Siri Ram has not been cited nor examined as a prosecution witness.
42. Before the alleged apprehension of both the accused persons, the officers of investigating agency had with them the concrete information regarding presence of accused at the alleged places of their arrest and their alleged possession of the counterfeit currency notes. Yet, no sincere efforts have been made by the responsible officers of investigating agency for joining of any independent witness(es) in the raiding party; interception of the accused regarding which they allegedly had concrete information, recovery of the alleged counterfeit currency notes and the consequential arrest of the accused to lend credence to their such acts in the course of investigation.
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43. Admittedly, as inter alia specified in the preceding paragraph, before arrival, before or after apprehension of accused, before or after the alleged recovery of the case properties, from the house of accused Rajesh Arora, situated in Kalkaji, no efforts had been made to inform or call upon the incharge of the police station within whose jurisdiction, such raid was organized and such recovery was allegedly effected. Even no respectable inhabitants of locality or nearby localities were asked to join search, apprehension of accused or seizure of case properties to lend credence to version of prosecution and to show fairness of officers of investigating agency.
44. In this fact of the matter, non joining of the independent witness(es) in the entire sequence of occurrence of facts in the course of investigation from the time of organisation of the raid till alleged apprehension of accused Irfan, alleged seizure of alleged case properties from his possession; the apprehension of accused Rajesh Arora, alleged recovery and seizure of the case properties at his said SC No. 14/2011 32/35 State Vs. Irfan & Other flat, all material facts narrated differently and in contradiction with each other by the aforesaid material witnesses of prosecution, the version of DW1 corroborated by the existence and giving of notice Ex PW1/DB at 7 am on 19/08/2008 to DW1 by PW1; bring into fore the fact that the genesis of the crime is suppressed, even no witness (es) from the localities of recoveries whose presence could be natural was joined in the investigation, nor cited nor examined, there being no evidence on record of accused Rajesh Arora being owner or possessor of the alleged place of such recovery i.e Flat No. A522, Double Storey, Kalkaji, New Delhi; the elicited intrinsic circumstances enumerated above speak volumes against the prosecution case and raise considerable and reasonable amount of suspicion in mind regarding the apprehension of the arrayed accused and possession of the alleged counterfeit currency notes by the accused and the complicity of the accused in the commission of alleged offences. No cogent evidence has been led to prove that accused Rajesh Arora handed any amount of counterfeit currency notes to accused Irfan for sale/trafficking. Neither the investigating agency in investigation nor the prosecution in its evidence brought any material to substantiate or SC No. 14/2011 33/35 State Vs. Irfan & Other prove that the monitor, CPU, printer could be used for printing counterfeit currency notes or for purposes other that photocopying of documents. Per contra, report Ex PW1/Q of CFSL, Chandigarh finds mention of no data significant could be found/retrieved from the examined hard disk allegedly of computer of accused Rajesh Arora. Reliance placed upon the case of State of U.P vs. Madan Mohan and Others, AIR 1989 SC 1519 and Pawan Kumar vs. Delhi Administration, 1989 Cri.L.J 127.
45. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favor of the prosecution and the other in favor of the accused, the later should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 SCC 516 were relied.
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46. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this court.
47. The aforesaid infirmities in the background of reasonable possibility of false implication of the accused persons, elicited above, renders the prosecution version not proved, beyond reasonable doubt.
48. Relying upon the law laid and elicited in the preceding paragraphs, since two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and other to their innocence, view which is favourable to the accused is being adopted. Both the accused are given benefit of doubt and are acquitted for the offences charged. Bails bonds of accused on bail are canceled and their sureties are discharged. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 31/01/2012 ASJ (FTC)/SD/ NEW DELHI.
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