Delhi District Court
State vs . Rahis & Others on 4 August, 2012
State vs. Rahis & others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 14 of 2010
ID No: 02401R0097022010
FIR No. : 70/09
PS : Special Cell
U/S : 489A/489B/498C/489/D
120 B IPC
STATE
VERSUS
Rahis
S/o Nuruddin
R/o H. No. 1626 Mohalla Kabli Gate
Town Mawana Distt. Meerut UP ........Accused No. 1
Jaspal Singh @ Jassi
S/o Rattan Singh
R/o H. No. 16/3 A, 2nd Floor Tilak Nagar
Delhi. .........Accused No. 2
Mohd. Ashraf
S/o Mohd. Kasim
R/o D-23, New Jafrabad,
Delhi. ..........Accused No.3
AND
SC No. 35 of 2010
ID No: 02401R027012010
FIR No. : 70/09
PS : Special Cell
U/S : 489A/489B/498C/489/D
120 B IPC
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State vs. Rahis & others
Rashid
S/o Mohd. Rafique,
R/o H. No. 473/B, Gali No.21,
Jafrabad, Delhi ..........Accused No.4
Faraha Anwar
W/o Dilshad,
R/o H. No.123, Pratap Khand,
Jhilmil Colony, Delhi. ..........Accused No.5
Mohd. Zakir
S/o Mohd. Sabuddin @ Sabir
R/o H. No. 1248, Gali No. 42/44,
Jafrabad, Delhi.
(since discharged
vide order dated 23.08.2010) ........Accused No.6
Date of Institution : 08.03.2010
Date of Committal to Sessions Court : 15.04.2010
Judgment reserved on : 26.07.2012
Date of pronouncement of judgment : 04.08.2012
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. S.K. Gulati Advocate, counsel for accused Rahis
Sh. Summet Verma, Advocate, counsel for accused
Rashid and Faraha Anwar
Sh. Dinesh Sharma, Advocate, Amicus Curiae for accused
Mohd. Ashraf
Sh. Manmohan Goel Advocate, counsel for accused
Jaspal
1. Sessions case No. 14/10 and 35/10 are subject matter of this
judgment.
2. Briefly stated facts of prosecution case are that on December
12, 2009 a secret information was received to SI Satish Rana at about 4
pm in his office that a person in the name of Rahis was indulging in
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State vs. Rahis & others
printing and supplying of fake currency notes in Delhi and UP along with
his associates Jaspal and they were printing fake currency notes at their
rented room somewhere in Pratap Khand, Jhilmil Colony, Delhi and they
would come to supply fake currency notes in denomination of ` 500/- to
someone between 5.45 pm to 6.30 pm on road in front of gate of B-
Block, Vivek Vihar, Phase-II on motorcycle bearing No. DL-4S-AN-7776,
Red Colour Pulsar and if raid be conducted and they could be
apprehended with the receiver and fake currency notes in huge quantity
could be recovered from them. After satisfying himself with the
information, SI Dilip had produced secret informer before his Inspector
and he also confirmed secret information from secret informer and
thereafter, they conveyed to senior officer, who directed to conduct the
raid immediately.
(i) Accordingly, a raiding party was constituted comprising of
various police officials under SI Dilip Kumar. They left from the Special
Cell at about 4.30 pm vide DD 15 in private cars. On the way, SI Dilip
Kumar had asked public persons at near Sai Baba Temple near Pragati
Maidan, near Karkardooma Courts, and at the spot to join the raiding
party but none came forward. They reached the spot at about 5.30 pm.
(ii) After reaching spot, members of the raiding party took their
position at different location and Nakabandi was done up to 5.45 pm.
(iii) It was alleged that at about 6 pm, one person came on
motorcycle bearing No. DL-4S-AN-7776, Red Colour Pulsar from Jhilmil
Colony side and stopped his motorcycle at the distance of 10-15 meters
ahead where SI Dilip Kumar had parked the cars. Said person was
identified by secret informer as accused Rahis. At that time, Rahis was
wearing Khakhi colour jacket and black pant. He parked his motorcycle
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State vs. Rahis & others
on the road and stood beside by the motor-cycle. He started waiting for
someone impatiently. After about 5-7 minutes when Rahis was about to
sit of his motorcycle to go back, he was apprehended immediately with
the help of members of raiding party at about 6.20 pm. Thereafter, secret
informer left the spot.
(iv) It was alleged that thereafter SI Dilip Kumar disclosed his
identity to accused Rahis and on interrogation Rahis disclosed his name
as Rahis s/o Nuruddin. Thereafter, SI Satish Rana asked him that he had
to take his search and he also offered his search and search of police
officials and cars to the accused but accused refused to take their
search. It was alleged that at that time, SI Satish Rana also asked 8-10
public persons to join the proceedings but none came forward.
Thereafter, SI Satish Rana took the search of accused Rahis and 20 fake
currency notes of ` 500/- each were recovered from the right side pocket
of his pant. On checking the letters 'RDI' were written on the water mark
of each note, thus, it appeared the said notes were fake. All the notes
were kept in a plastic polythene and sealed with the seal of SR, form FSL
was filled up and seal was handed over to ASI Devender.
(v) It was alleged that thereafter, SI Satish Rana prepared a
rukka and sent HC Ram Gopal to the police station, Special Cell to lodge
an FIR, thereafter, SI Satish Rana conducted further investigation and
arrested the accused Rahis.
(vi) It was alleged that during interrogation accused Rahis had
disclosed the name of Jaspal, Rashid and Faraha Anwar and further
disclosed that he was involved in the printing of fake currency notes for
the last 7-8 months and he had approximately printed fake currency
notes worth of ` 5 lac.
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(vii) It was alleged that pursuant to his disclosure statement
accused Rahis led the police party to house No. 123, Pratap Khand,
Jhilmil Colony where in one room Jaspal was working on the computer.
It was alleged that after disclosing the identity of police party, personal
search of accused Jaspal was taken wherein fake currency notes worth
of ` 10,000/- in the denomination of ` 500/- each were recovered from
him. It was sealed in a pullanda and was marked as 'J'. Accused Jaspal
@ Jassi was arrested and his disclosure statement was recorded.
(viii) It was alleged that at the instance of accused Rahis and
Jaspal fake currency notes worth of ` 30,000/- in the denomination of `
500/-each were recovered from an Almirah lying in the said room,
consequently, the same were also seized and sealed and pullanda was
marked as 'A'. It was alleged that some unfinished notes in the
denomination of ` 500/- each were also recovered from the said room.
One computer, printer, scanner, photocopier, etc. were also seized from
the room. Pulanda was sealed with the seal of SR after taking it from ASI
Devender and thereafter, seal was again handed over to ASI Devender.
(ix) It was alleged that accused Rahis led the police party to the
house No. 769, Gali No. 20, Jafrabad, Delhi from where accused Mohd.
Ashraf was arrested and fake currency notes worth of ` 20,000/- in the
denomination of ` 500/- each were recovered from him.
(x) It was alleged that accused persons were taken on police
remand to unearth the conspiracy and to arrest co-accused Rashid,
Zakir and to interrogate Faraha Anwar but the said accused persons
were found absconded.
(xi) It was alleged that during investigation, it was revealed that
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State vs. Rahis & others
accused Rahis had purchased the big printer by representing himself as
Ashwani Kumar. Seized CPU was sent to forensic lab on January 11,
2010 and fake currency notes were sent for expert opinion on January
19, 2010.
(xii) It was alleged that accused Faraha Anwar had slipped away
when police conducted the raid at H.No. 123, Pratap Khand, Jhilmil
Colony. Since, accused Rashid, Zakir and Faraha were absconding,
investigating officer, SI Satish Rana filed the charge sheet against the
accused persons namely Rahis, Jaspal and Mohd. Ashraf for the offence
punishable under Section 489A/ 489B/ 489C/ 489D read with 120 B IPC
and stated that separate charge sheet would be filed against other
accused persons as and when they arrested under Section 173 (8) Cr.
P.C.
(xiii) It was alleged that on March 11, 2010 a secret information
was received in the office of Special Cell to ASI Devender that accused
Rashid and Faraha who are absconded would come at Gopal Pur red
light to go to UP. Accordingly, ASI Devender along with his staff
conducted a raid at about 10.30 am and apprehended both the accused
and arrested them in the case.
(xiv) It was alleged that fake currency notes worth of ` 10,000/-
were recovered from the bag which accused Rashid was carrying at that
time. The same was sealed in a pulanda with the seal of DPS. However,
nothing was recovered from accused Faraha Anwar. Thereafter,
investigation was assigned to SI Satish Rana.
(xv) It was alleged that on May 21, 2010 on receipt of secret
information, accused Mohd. Zakir @ Sabir was arrested. On
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State vs. Rahis & others
interrogation, he disclosed that he had received fake currency notes from
Mohd. Ashraf three times, first time, he had received fake currency notes
worth ` 22,000/- and then ` 25,000/-. As the said notes were not in good
condition, he had returned the said notes to Ashraf and third time had
received fake currency notes worth of ` 40,000/- from Mohd. Ashraf. He
disclosed that out of said ` 40,000/- fake currency notes, he had used `
5,000 to ` 10,000, ` 5,000 was given to one Samshad of Meerut and `
5,000 to one Rehmat of Mooradabad. However, no recovery could not
affected from accused Mohd. Zakir.
(xvi) It was stated that the serial numbers of recovered currency
notes were found in the seized computer, thus, it was alleged that the
said fake currency notes were printed by the accused persons.
(xvii) It was alleged that the accused Rashid had hatched a
criminal conspiracy with accused Rahis and Jaspal to print and circulate
fake currency notes and his sister Faraha Anwar had joined this
conspiracy subsequently and in furtherance of their conspiracy accused
Rashid, Rahis and Jaspal purchased a printer, computer and other
material used in printing currency notes and they started printing fake
notes at the said premises. Accused Rashid had received fake currency
notes worth of ` 2 lac and circulated the same and at the time of his
arrest fake currency notes worth of ` 10,000/- were recovered from his
possession.
(xviii) It was alleged that accused Farah Anwar was involved in
the conspiracy as she slipped away from her house when raid was
conducted, she never joined the investigation despite service of notice,
that the room of Faraha was adjacent to room of accused where they
were printing the fake currency notes, thus, she was aware about the
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State vs. Rahis & others
printing of fake currency notes by the accused persons, she had used
fake currency notes as her brother Rashid used to give fake currency
notes worth of ` 4,000 - ` 5,000/- to her per month and she could not
show any rent agreement of the room, which showed that she was well
acquainted with the accused and their deeds.
(xix) Since, accused Samshad and Rehmat could not be
arrested, SI Satish Rana filed the charge sheet against accused Rashid
Zakir and Faraha Anwar for the offence punishable under Section 489A/
489B/ 489C/ 489/D read with 120 B IPC stating that he would file
supplementary charge sheet under Section 173 (8) Cr. P.C. against
accused Samshad and Rehmat as and when they arrested.
(xx) It is pertinent to state that no charge sheet has been filed
against Samshad and Rehmat till date by the investigating officer.
3. After complying with the provisions of Section 207 Cr. P.C.
charge-sheet qua accused Rahis, Jaspal and Mohd. Ashraf was
committed to the Court of Sessions on April 8, 2010. The same was
assigned to the Court of Sh. K.S. Mohi, the then Ld. ASJ, learned
predecessor of this Court. Accordingly, the case was registered as
Session Case No. 14/2010.
4. After complying with the provisions of Section 207 Cr. P.C.
charge-sheet qua accused Rashid, Farah and Mohd. Zakir was
committed to the Court of Sessions on July 17, 2010. Accordingly, the
same was assigned to the Court Sh. R.K. Gauba, the then Ld. ASJ,
learned predecessor of this Court. Accordingly, the case was registered
as Sessions Case No. 35/10. The Sessions Case No. 35/10 was clubbed
with Sessions Case No. 14/10 and it was directed that the Sessions
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State vs. Rahis & others
Case No. 14/10 shall be the main case and proceedings recorded therein
shall form part of the other connected case.
5. Vide order dated August 23, 2011, accused Mohd. Zakir was
discharged from all the charges. However, a charge for the offence
punishable under Section 489A/ 489C/ 489D IPC read with Section 120
B IPC was framed against accused Rahis and Jaspal to which they
pleaded not guilty and claimed trial. Another separate charge for the
offence punishable under Section 489A/ 489B/ 489C and 489D IPC read
with Section 120B IPC was framed against all the remaining five accused
persons to which also they pleaded not guilty and claimed trial. A
separate charge for the offence punishable under Section 489 C IPC was
framed against accused Rashid, Jaspal, Mohd. Ashraf and Rashid to
which they pleaded not guilty and claimed trial.
6. In order to bring home the guilt of the accused, prosecution
has examined as many as following 16 witnesses.
PW1 Sh. Kapil Sehgal, owner of the shop from where
photocopier was purchased.
PW2 ASI Narender Pal, Duty Officer, proved the FIR.
PW3 ASI R.C. Sekhran, Duty Officer, proved the DD No.15
and DD 18.
PW4 HC Umesh Kumar, member of raiding party.
PW5 Sh. Anurag Sharma, Sr. Scientific Officer, examined
recovered fake currency notes.
PW6 HC Atul Kumar, connected witness, deposited
exhibits with CFSL Hyderabad and FSL Rohini.
PW7 Ct. Sandeep, connected witness, deposited exhibits
with FSL Rohini.
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State vs. Rahis & others
PW8 HC Neeraj Kumar joined the investigation with SI
Satish Rana subsequently.
PW9 Sachin Kumar Tyagi, formal witness proved the
agreement to sell.
PW10 ASI Mathias Baxla , MHC (M).
PW11 SI Jai Shree, member of raiding party.
PW12 ASI Devender, member of raiding party.
PW13 HC Ram Gopal, member of raiding party.
PW14 SI Satish Rana, Investigating Officer.
PW15 ASI Rustam Khan, proved DD No. 10A and DD No.
5.
PW16 Dr. A.K. Srivastava, Sr. Scientific Officer, CFSL
Hyderabad.
7. Thereafter, accused persons were examined under Section
313 Cr. P.C. wherein accused persons denied all the evidence led by
prosecution. Accused Rashid and Faraha took the plea that they have
been falsely implicated in this case and due to that reason no public
witness had been associated during the investigation. Accused Rahis
took the plea that nothing was recovered either from him or at his
instance and the same had been planted upon him. Accused Jaspal also
took the plea that he has been falsely implicated in this case. Accused
Ashraf took the plea that he has been falsely implicated in this case and
nothing was recovered either from him or at his instance. However, all
the accused except Mohd. Ashraf preferred not to lead evidence in their
defence.
8. In order to prove his innocence Mohd. Ashraf examined Sh.
Abid, his brother-in-law as DW1.
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State vs. Rahis & others
9. Learned counsel appearing for the accused persons raised
the following common contentions:
(i) That investigating officer has not followed the Punjab Police
Rules (PPR in short) during investigation, thus the possibility of
fabrication in the record can not be ruled out. It was submitted that even
the investigating officer and members of raiding party in their deposition
deposed that the cops of Special Cell are not governed by the Punjab
Police Rules, thus, how can we expect that they had conducted the
investigation in accordance with the law. Thus, it was contended that no
reliance should be placed on the deposition of police official witnesses.
(ii) That no sincere effort was made to join any independent
witness. It was submitted that the version of prosecution that
investigating officer had asked public persons to join the investigation at
four places and each time he asked from five persons to join the
investigation cast a reasonable doubt over the prosecution case.
(iii) That the investigating officer had played dual role i.e. role of
complainant as well as investigating officer. It was submitted that this
practice was disapproved by the Apex Court in 1995 in Megha Singh v.
State of Haryana, AIR 1995 SC 2339 and contended that it appears that
Special Cell has not given any heed to the decision of Apex Court.
(iv) That prosecution case is that accused Rahis and Jaspal had
printed fake currency notes worth of ` 5.00 lac in the last 7-8 months. As
per prosecution version, ` 1.50 lac was given to accused Ashraf and `
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State vs. Rahis & others
2.00 lac to accused Rashid whereas accused Rahis and Jaspal had
circulated counterfiet currency notes worth of ` 1.50 lac. It was
contended that no investigation was conducted how they had sold the
fake currency notes and if they had circulated the fake currency notes in
the market, where are the articles which they had purchased by using the
said counterfiet currency notes.
10. Said contentions were rebutted by learned Additional Public
Prosecutor by deposing that investigating officer had made sincere
efforts to persuade independent witnesses to join the investigation but
despite sincere efforts no one came forward. It was submitted that it is
the hard reality that no public person come forward to indulge himself in
the criminal matter unless he is affected. It was further submitted that no
doubt PW14 had played the dual role of complainant as well as
investigating officer, but this itself is not suffice to discard the prosecution
case. However, he fairly conceded that Special Cell is the part of Delhi
Police, thus is governed by the Punjab Police Rules. It was submitted
that all police officials are bound to follow the PPR during investigation. It
was contended that accused persons used to circulate the counterfiet
currency notes of their own in the market.
11. PW4, PW11, PW12, PW13 and PW14 are the star witnesses
of the prosecution. PW14 SI Satish Rana is the investigating officer, he in
his cross-examination deposed that he does not make any entry in the
Rojnamcha Register either at the time of joining his duties or at the time
of leaving the office. He further deposed that there is no attendance
register for the officials posted at Special Cell. He further deposed that
the police officials posted at Special Cell do not mark their attendance
anywhere. PW12 ASI Devender also deposed in the same tune that
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State vs. Rahis & others
police officials posted at Special Cell do not record their arrival and
departure at the time of coming and leaving the office. He further
deposed that he does not aware whether Special Cell is governed by the
PPR or not but conceded that he does not make any entry either at time
of joining his duties or leaving his office. He further deposed that even
duty officer does not record their arrival and departure. Similarly, PW13
also deposed that he does not make any entry in the rojnamcha register
either at the time of reporting for duty or leaving the office. However,
PW11 SI Jaishree took a contradictory stand by deposing that generally
she used to make her arrival and departure entry at the time of joining
and leaving the office but she did not remember whether on March 11,
2010 she had made any such entry or not. From her testimony, it is
explicit that there is inconsistency in the deposition of PW12, PW13 &
PW14 on the one hand and PW11 on the other hand as PW12, PW13 &
PW14 deposed that they do not make any entry of their arrival and
departure at the time of joining their duties and leaving office whereas
PW11 deposed that generally she makes such entry. Since no such
question was put to PW4 during cross-examination, PW4 has not made
any deposition in this regard.
12. Now question emerges as to whether police officials are
required to make an entry at the time of joining and leaving the office or
not?
13. In this regard Rule 22.48 and 22.49 of Chapter XXII of
Punjab Police Rules, 1934 are relevant and same are as under:
"22.48 Register No. II - (1) The Daily Diary shall be
maintained in accordance with section 44 of the Police
Act. It shall be in Form 22.48 (1) and shall be
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State vs. Rahis & others
maintained by means of carbon copying process.
There shall be two copies. One will remain in the
police station register and the other shall be
despatched to a Gazetted Officer to be designated by
the Superintendent of Police or to the Superintendent
of Police himself every day at the hour fixed in this
behalf.
(2) -------------------------------------------------------------------
(3) -------------------------------------------------------------------
22.49 Matters to be entered in Register No. II. - The
following matters shall, amongst others, be entered.
(a) -------------------------------------------------------------------
(b) -------------------------------------------------------------------
(c) The hour of arrival and departure on duty at or
from a police station of all enrolled police officers of
whatever rank, whether posted at the police station or
elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or
prior to the departure of the officer concerned and
shall be attested by the latter personally by signature
or seal.
Note:- The term Police Station will include all places
such as Police Lines and Police Posts where Register
No. II is maintained.
(d) Every police officer of or above the rank of head
constable, when returning from duty other than an
investigation in which case diaries are submitted, shall
have an entry made in the daily diary by the station
clerk or his assistant showing the places he has
visited and the duties performed by him during his
absence from the police station.
(emphasis supplied)
14. From bare perusal of the above rules it becomes abundantly
clear that all police officials irrespective of their rank are bound to record
their arrival at the time of joining their duties and departure at the time of
leaving their office. Thus, the testimony of PW12, PW13 and PW14 to the
extent that being the officials of Special Cell they are not required to
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State vs. Rahis & others
enter their arrival and departure in the daily diary is without any basis.
Moreover, when PW11 marks her arrival and departure in the daily diary
why the others can not mark the same. The purpose of making entry in
the daily diary is to keep a watch on the movement of police officials as
well as to show how many police officials had attended the duties on a
particular day.
15. During the course of arguments, learned Additional Public
Prosecutor fairly conceded that the Punjab Police Rules, 1934 are
applicable to all branches of Delhi Police since inception. On being asked
as to whether there is any separate rules for the Special Cell of Delhi
Police, learned Additional Public Prosecutor submitted that Special Cell
being the part of Delhi Police is also governed by the Punjab Police
Rules. Admittedly, Punjab Police Rules, 1934 are applicable to the Delhi
Police. Since, Special Cell is part of Delhi Police and there is no separate
rules for the Cell, thus, I am of the view that Special Cell is also governed
by the Punjab Police Rules.
16. No doubt Special Cell is a preimer unit of Delhi Police, which
deals with the heinous crimes including cases relating to terrorism and
counterfiet currency etc. Such heinous crimes attract severe punishment
up to imprisonment for life or even for death. When a Cell is created to
deal with such type of offences, Society and system cast a heavy duty
upon the members of such Cell to carry out the investigation in
accordance with the rules and regulations. But in the instant case, even
members of Special Cell are not aware whether they are governed by the
Punjab Police Rules or not. If they are not aware under which rules they
are governed, how can they perfom their duties in accordance with the
rules. The effect of non-compliance of rule 22.49 of PPR is that daily
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State vs. Rahis & others
diary in Special Cell can be managed as there will be no record in the
office about arrival and departure of police officials. Such type of lapses
unnecessarily supply ammunition to the defence to raise a finger over the
entire investigation.
17. Now coming to the next contention as to whether
investigating officer had made sincere efforts to join public witnesses
while conducting the raid?
18. Members of raiding party i.e. PW4, PW12 and PW14 in their
deposition categorically deposed that PW14 had asked at four places
from five persons each time to join the raiding party but none came
forword to join the raiding party. No doubt in a city like Delhi, it is difficult
to perusade a public person to join police raid of a case wherein he has
no interest. But once, investigating officer took the plea that he had
made efforts to join independent witnesses, onus is upon the prosecution
to establish that efforts were made sincerely and it was not a farce.
19. It is admitted case of prosecution that eight members of
raiding party and secret informer had left from the office of Special Cell at
about 4.30 pm in two private cars. In the car, drove by PW14, total five
persons were sitting whereas in the car drove by inspector Subhash Vats
remaining four persons were sitting. It is also admitted case of
prosecution that the members of raiding party reached Vivek Vihar,
Block-B, Phase II at about 5.30 pm. It means that police party had taken
extact 60 minutes to reach Vivek Vihar from Lodhi Colony where Special
Cell office is located. As per the testimony of members of raiding party
PW14 had stopped his car at four places i.e. near Sai Baba Temple, near
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State vs. Rahis & others
Pragati Maidan, near Laxami Nagar and near Karkardooma Court. The
distance between Lodhi Colony to Vivek Vihar must be between 18 to 20
km. It is also admitted case of prosecution that members of raiding party
were not in police uniform and they were not using police vehicle. It is
also admitted case of prosecution that only PW14 had stopped his car at
all the said places and he only got down from the car and made the
request to the alleged 20 persons. Since, he was not in police vehicle
and was not in uniform and he had to explain each individual about the
alleged secret information thereafter he had to explain why he needed
their help, thus, PW14 required at least two minutes to persuade each
individual to join the raiding party. Since, he asked 20 persons, that
means he must have spent about 40 minutes in persuading public
persons to join the raiding party. If he spent 40 minutes or 30 minutes in
persuading public persons to join the raiding party, it is seldom to reach
Vivek Vihar within 20-30 minutes.
20. As already stated that it is seldom to persuade a person to
join the police party if he has no interest in the raid, thus, if such persons
refused to join the raiding party, it is not surprising. But it is difficult to
believe that public person will not disclose his/her name on the asking of
a police officer. Thus, when PW14 and other witnesses deposed that
such persons left without disclosing their name but after disclosing their
difficulties does not inspire any confidence. Even PW14 failed to disclose
what difficulties they had disclosed to him. If the reasons furnished by
them were genuine, then he should have made more efforts, if the
reasons were not reasonable, he should have taken some action against
them. Since, the reasons disclosed to PW14 are not deposed by PW14
in his deposition, it casts a reasonable doubt over the alleged sincere
efforts made by PW14 to persuade the public persons to join the
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State vs. Rahis & others
investigation.
21. As already discussed that in a city like Delhi, it is difficult to
perusade a public person to join the police raid if such person has no
interest in the said raid. In other similar matters where prosecution case
is based on the statement of only police officials, prosecution faces same
difficulty and in all such cases accused tries to assail the prosecution
case on the ground that it was a planted case as no public person had
joined the investigation. But when we see the investigation conducted by
the CBI, we find that CBI always abled to find the independent witnesses.
They even requisit independent witnesses from government offices.
When CBI can perusade independent witnesses why Special Cell can
not do. Admittedly, numerous government and priviate offices are located
near the office of Special Cell. Thus, if sincere efforts are made there,
investigators can get as many as independent and reliable persons for
the purpose of investigation but they always perfer to ask only passers by
who may have his/her own schedule and investigators never send any
requsition to the government/priviate offices asking them to spare
one/two persons for the purpose of investigation for a particular case. To
my mind, some change in the mind-set of investigators is required.
Deposition of police officials witnesses duly corroborated by the
statement of respectable independent witness carries lot of evidentiary
value whereas the absence of such independent witness provides an
opportunity to the defence to raise an eyebrow over the version of police
official witnesses.
22. No doubt the deposition of a police official can not be
discarded on the mere ground that no public witness has joined the
investigation. But in the instant case, if we believe that PW14 had made
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State vs. Rahis & others
sincere efforts as alleged by the prosecution, he must needed between
30 to 40 minutes and if he spent 30-40 minutes in persuading public
witnesses, it is highly unbelievable that police party would be able to
reach Vivek Vihar by 5.30 pm. Thus, I am of the view that before relying
upon the uncorroborated testimony of police officials, Court has to
evaluate their testimony minutely.
23. Now turning to the next contention as to whether the
approach of PW14 to play the role of complainant and investigator is
proper?
24. It is admitted case of the prosecution that in the instant case
PW14 SI Satish Rana was the complainant and his complaint is exhibited
as Ex. PW14/A. It is also admitted fact that he had conducted the entire
investigation. Thus, PW14 had played the dual role i.e. of complainant as
well as investigator. But this approach of the investigating agency was
disapproved by the Apex Court as back as in the year 1995 in Megha
Singh v. State of Haryana, AIR 1995 SC 2339 wherein it was held:
"After considering the facts and circumstances of the
case, it appears to us that there is discrepancy in the
deposition of the PWs 2 & 3 and in the absence of
any independent corroboration such discrepancy
does not inspire confidence about the reliability of the
prosecution case. We have also noted another
desturbing feature in this case. PW3 Siri Chand,
head constable arrested the accused and on search
being conducted by him a pistol and the cartridges
were recovered from the accused. It was on his
complaint a formal first information report was lodged
and the case was initiated. He being complainant
should not have proceeded with the investigation of
the case. But it appears to us that he was not only
the complainant in the case but he carried on with the
investigation and examined witnesses under S.161
Cr.P.C. Such practice, to say the least, should not be
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State vs. Rahis & others
resorted to so that there may not be any occasion to
suspect fair and impartial investigation.
25. In view of the law laid down in the aforesaid case, it was the
pious duty of the investigating agency to ensure that the police official on
whose complaint, first information report is lodged should not have
carried on with the investigation. There is no explanantion from the
prosecution why PW14 had continued with the investigation despite the
fact that first information report was lodged on his complaint. Perusal of
the testimony of PW4, PW12 and PW14 it is explicit that inspector
Subhash Vats was present there, but he did not take the charge of the
investigation. It is also evident that inspector Govind Sharma also
reached there. But neither he took the charge of further investigation nor
PW14 handed over the further investigation to him. There is no
explanantion from prosecution under which circumstances PW14 had
carried on with the investigation despite the fact that he was author of the
first information report. In these circumstances, it casts a reasonable
doubt over the prosecution case.
26. Now coming to the next important question for what purpose
accused persons used to print the counterfiet currency notes?
27. Prosecution case is that accused Rahis, Jaspal and Rashid
had hatched a criminal conspiracy to print fake currency notes and for
that purpose they had installed necessary equipments at the house of
accused Faraha Anwar. It is also the admitted case of prosecution that
they had printed counterfiet currency notes worth of ` 5.00 lac during the
last 7-8 months. According to the prosecution, they had given ` 1.50 lac
to the accused Ashraf and ` 2.00 lac to accused Rashid and accused
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State vs. Rahis & others
Rahis and Jaspal had circulated ` 1.50 lac in the market. It is admitted
case of prosecution that only 40 counterfiet currency notes worth of `
20,000/- were recoverd from accused Ashraf and 20 fake currency notes
worth of ` 10,000/- were recovered from accused Rashid. If accused
Rahis, Jaspal and Rashid were printing fake currency notes, it means
that they must be selling these notes to some persons to circulate in the
market. If it was so, question arises against what consideration they used
to sell the said fake currency notes. It is unbelievable that they used to
print the fake currency notes just to bear the house hold daily expenses.
If they had sold counterfiet currency worth of ` 5.00 lac where is the ill-
gotten money which they had earned by supplying the fake currency
notes. If they had circulated the same by buying articles from the market,
where are those articles. Interestingly, no such investigation was made
by the investigator in this regard. As already stated that Special Cell is
the premier unit of Delhi Police, which was constituted to investigate
heinous crime, thus, investigators of such specialized unit are supposed
to conduct the investigation considering all the aspects. But in this case,
no such investigation was conducted. It is also pertinent to state that the
quality of counterfiet currency notes is not good as the words 'RDI' was
printed over the counterfiet currency notes instead of 'RBI'. Thus, it was
not easy to circulate such huge quantity of such poor quality of fake
currency notes in the market.
28. Further, prosecution case is that on December 12, 2009
accused Rahis had come to Vivek Vihar, Block B, Phase II to deliver the
fake currency notes to one Prakash. But no investigation was conducted
to establish the identity of said Prakash. It is not clear how accused
Rahis had contacted with Prakash or how Prakash had contacted with
Rahis. There is no evidence to show that there was any connection
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State vs. Rahis & others
between accused Rahis and alleged buyer Prakash. According to the
police, accused Rahis had come there to deliver the fake currency notes
to Prakash who resided somewhere in Delhi. It is seldom to believe that a
person who deals in the racket of counterfiet currency notes would come
without knowing the particular of the person to whom he was going to
supply the counterfiet currency notes. It there was any buyer by the
name of Prakash, it means that either Prakash had contacted the
accused Rahis or Rahis had called Prakash to take the delivery of
currency notes but investigator failed to collect any evidence to show that
accused Rahis knew any person Prakash and also failed to collect any
evidence that Prakash had any connection with the fake currency notes
racket. This lapse on the part of investigating agency strengthen the
defence version that the case is cooked one.
Contentions relating to accused Rashid and Faraha Anwar:
29. Learned counsel appearing for the said accused persons
vigorously contended that there is no iota of evidence to establish that
accused Rashid and Faraha were part of the conspiracy, if any, with
accused Rahis and Jaspal. It was contended that there is no evidence
that the above accused had any agreement with the accused Rahis and
Jaspal in regard to printing the fake currency notes. In support of his
contention, he relied upon S. Arul Raja v. State of Tamil Nadu 2010 (4)
JCC 2451. It was further contended that the alleged recovery of 20
counterfiet currency notes from accused Rashid is planted one as
accused Rashid was arrested after three months, it is highly unbelievable
that any person would roam keeping fake currency notes knowingly well
that police is behind him. It was further contended that during the
personal search nothing incriminating was recovered from accused
Rashid which also includes the search of the bag from where alleged
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State vs. Rahis & others
fake currency notes were recovered. It was further contended that it is
highly unbelievable that any police officer would record the disclosure
statement of accused prior to taking his search.
30. Per contra, learned Additional Public Prosecutor contended
that accused Rashid and Faraha were actively involved in the conspiracy
as the printing equipments were installed in the house of Faraha Anwar
with her consent and Rashid was involved in procuring the said
equipments. It was further contended that since fake currency notes were
recovered from the bag of Rashid pursuant to his disclosure statement,
thus recovery is admissible under Section 27 of Indian Evidence Act. It
was further contended that at the time of raid, accused Faraha was in the
house but she slipped away from the house after seeing the police party,
this establishes that she was involved in the conspiracy.
31. Prosecution has roped both the above accused in the
offence with the aid of Section 120A IPC. In addition to that, prosecution
has also relied upon the recovery of counterfeit currency notes from the
accused Rashid. No recovery is affected from accused Faraha Anwar.
32. Firstly, I prefer to deal with the issue as to whether there are
sufficient evidence to establish that above accused were part of
conspiracy with rest of the accused persons?
33. In case K. Hasim v. State of Tamil Nadu, AIR 2005 SC 128
it was held:
"The essence of a criminal conspiracy is the unlawful
combination and ordinarily the offence is complete when
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State vs. Rahis & others
the combination is framed. From this, it necessarily
follows that unless the statute so requires, no overt act
need be done in furtherance of the conspiracy, and that
the object of the combination need not be accomplished,
in order to constitute an indictable offence.
Encouragement and support which co-conspirators give
to one another rendering enterprises possible which, if
left to individual effort, would have been impossible,
furnish the ground for visiting conspirators and abettors
with condign punishment. Offence of criminal conspiracy
consists not merely in the intention of two or more, but in
the agreement of two or more to do an unlawful act by
unlawful means. So long as such a design rests in
intention only, it is not indictable. When two agreed to
carry it into effect, the very plot is an act in itself, and an
act of each of the parties, promise against promise, actus
contra capable of being enforced, if lawful, punishable if
for a criminal object or for use of criminal means."
(emphasis supplied)
34. Learned defence counsel strongly relied upon S. Arul Raja
(supra), para 21 and 28 are relevant for our discussion, thus same are
reproduced as under:
"para 21. In pursuance of this motive, it has been sought
to be established by the Respondent that the appellant
conspired with the other accused to murder Aladi Aruna. This Court in Vijayan v. State of Kerala, 1999 (1) JCC 177: 1999 (3) SCC 54 has held that to punish a person for criminal conspiracy under Section 120B of IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. Therefore, it is imperative to see whether there had been any such agreement between the appellant and co-accused to murder Aladi Aruna, which could be established by producing reliable evidence.
Para 28. We find that these events, even when taken together, cannot prove a charge of conspiracy so far the appellant is concerned. In State through Superintendent of Police, CBI/SIT v. Nalini & others (1999) 5 SCC 253 it was held that: -
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State vs. Rahis & others
"583........................................... (1)............Offence of criminal conspiracy is an exception to the general law where intent alone does not consitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.................
In this instance, mere circumstantial evidence to prove the involvement of the appellant is not sufficient to meet the requirements of criminal conspiracy under Section 120A of the IPC. A meeting of minds to form a criminal conspiracy has to be proved by placing substantial evidence and the Respondent has not adduced any evidence which underlines the same.
(emphasis supplied)
35. In the light of above settled proposition of law, evidence led by the prosecution will be analyzed to ascertain as to whether there are sufficient evidence to rope the accused Rashid and Faraha Anwar in the alleged offence with the aid of Section 120B of the IPC or not.
36. In this regard the deposition of PW4 and PW14 are relevant. PW4 in his examination-in-chief deposed that on December 15, 2009, accused Rahis had made a supplementary disclosure statement, which is exhibited as Ex. PW4/S wherein he had disclosed the name of accused Rashid. He further deposed that accused Rahis had also led the police party to the house of Rashid and memo was prepared. PW14 SC No. 14/10 & 35/10 Page no. 25 of 46 State vs. Rahis & others deposed that on December 14, 2009 accused Rahis had made a supplementary disclosure statement, which is already exhibited as Ex. PW4/S and thereafter raid was conducted to arrest co-accused Rashid, Zakir but they could not be apprehended.
37. From the deposition of said two witnesses, it is evident that the mere evidence against accused Rashid is that his name was surfaced during the interrogation of the accused Rahis. Needless to say that pursuant to alleged disclosure statement neither Rashid was apprehended nor any incriminating article was recovered from him. It is well settled law that the disclosure statement made to the police officer during interrogation has no evidentiary value and the same is hit by Section 25 of Indian Evidence Act. Thus, the deposition of PW4 and PW14 to the extent that accused Rahis had disclosed the name of Rashid in his supplementary disclosure statement has no evidentiary value as the same is hit by Section 25 of Indian Evidence Act.
38. Prosecution version is that accused Rashid, Rahis and Jaspal had hatched a criminal conspiracy to print the counterfeit currency notes and accused Rashid had arranged premises of his sister for that purpose. But during the trial, prosecution has failed to adduce any evidence in this regard. Even investigating officer did not deem it appropriate to analyse the calls detail of mobile phones of the said accused persons. Had investigating officer examined their calls detail, prosecution would be in a better position to establish intimacy between them. But investigating officer preferred to rely upon inadmissible evidence i.e. disclosure statement of accused persons. In view of the above, I am of the view that there are not sufficient evidence to rope the accused Rashid in the alleged conspiracy with the aid of Section 120B SC No. 14/10 & 35/10 Page no. 26 of 46 State vs. Rahis & others IPC.
39. Now turing to the issue as to whether there is any evidence against accused Faraha Anwar to rope her in the offence with the aid of Section 120B of IPC.
40. The allegations against accused Faraha Anwar are that she had given a portion of her premises to the accused Rahis and Jaspal to print counterfeit currency notes and she was present in the premises at the time when police had conducted raid but she slipped away from the premises after seeing the police party. In order to prove her ownership, prosecution has proved the agreement to sell in her favour through PW9 Sachin Kumar, clerk of Sub-Registrar's office. Mere fact that she was the owner of the said building is not sufficient, in the absence of any other evidence, to establish that she was part of the conspiracy. PW14 in his examination-in-chief deposed that when they entered the house, one lady had slipped away from the house. Except that there is no other evidence against the accused Faraha. Even PW14 in his entire deposition nowhere deposed that the lady who had slipped away after seeing the police party was accused Faraha Anwar. PW12 in his deposition deposed that no other person met in the premises except accused Jaspal whereas PW4 in his cross-examination deposed that he had seen two girls in another room. Thus, there is material contradiction among the testimony of witnesses examined by the prosecution.
41. From the testimony of above witnesses, I am of the opinion that there is no infinitesimal evidence against the accused Faraha Anwar to rope her in the offence with the aid of Section 120B of the IPC.
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State vs. Rahis & others
42. Now coming to the next question as to whether the alleged recovery of 20 counterfeit currency notes from accused Rashid is reliable or not?
43. Prosecution case is that on March 11, 2010 PW12 ASI Devender had received the secret information about accused Rashid and Faraha Anwar. Accordingly, a team was constituted and raid was conducted. As per prosecution version, 20 counterfeit currency notes were recovered from the possession of the accused Rashid. In order to prove the alleged recovery, prosecution has relied upon the testimony of PW11 SI Jaishree and PW12 ASI Devender Parsad.
44. Perusal of their deposition revealed that raiding party was comprising of as many as five police officials but the investigating officer did not deem it appropriate either to record the statement of any other official except PW11 or to cite them as a witness on the memos allegedly prepared at the time of arrest. As usual this time also, investigators failed to persuade any public person to join the raiding party. Nor any effort was made to join independent witness from the government offices located near the office of Special Cell. Thus, prosecution preferred to rely upon the deposition of above two police officials.
45. As per prosecution version, after arrest accused Rashid had made the disclosure statement Ex. PW11/B wherein he disclosed that he had kept the counterfeit currency notes in his bag which he was carrying. Pursuant to that disclosure statement, 20 counterfeit currency notes were recovered from the said bag. On the basis of this story, learned Additional Public Prosecution contended that the said recovery is admissible under SC No. 14/10 & 35/10 Page no. 28 of 46 State vs. Rahis & others Section 27 of Indian Evidence Act.
46. PW11 in her examination-in-chief deposed that ASI Devender informed the accused Rashid that he was wanted in the present case as non-bailable warrants had already been issued against him. Thereafter, on search 20 currency notes of Rs.500/- each were recovered from brown colour raxin bag. The said notes were fake as words 'RDI' were written on the water mark. The said notes were seized. Thereafter, investigating officer recorded the disclosure statement of accused Rashid. Thereafter, accused was arrested and his personal search memo was prepared. Thus, as per her deposition, the alleged recovery was affected prior to recording of his disclosure statement, thus, the recovery is not admissible under Section 27 of Indian Evidence Act. However, in her cross-examination, she gave a different version by deposing that in the instant case, they recorded the disclosure statement of accused first as non-bailable warrants were pending against him. But she admitted that generally, they prepared the arrest memo, then personal search memo and thereafter disclosure statement. She further deposed that accused Rashid was arrested at about 12:00 noon and his personal search was taken at about 12:15 pm. But deposed that she did not know whether her disclosure statement was recorded prior to 12.30 pm or thereafter. On the one hand, she deposed that the disclosure statement was recorded prior to preparing the arrest memo but on the other hand deposed that she did not know whether his disclosure was recorded prior to 12.30 pm or not. This shows that PW11 is not aware when the alleged recovery was affected from the accused Rashid.
47. PW12 deposed that as per general practice, they first prepared the arrest memo, then disclosure statement and then personal SC No. 14/10 & 35/10 Page no. 29 of 46 State vs. Rahis & others search. He further deposed that Rashid was arrested at 12:00 noon, his disclosure was recovered between 12.15 pm to 12.30 pm and thereafter his personal search memo was prepared. He further deposed that he did not aware whether as per PPR investigating officer is supposed to take the personal search soon after the arrest of the accused or not. This only shows the level of capability of the investigator. Now question arises what is the provision under the Punjab Police Rules in this regard. Rule 26.3 deals with the search of persons under arrest and relevant portion of the same is reproduced as under:
"(1) All persons arrested by the police and not admitted to bail shall as soon after arrrest as possible, be thoroughly searched; in the case of females such search shall be conducted by a woman and shall in all cases be conducted with due regard to decency."
(emphasis supplied) Thus, it becomes crystal clear that after arresting the accused, first thing, which is to be done is to thoroughly search the accused. Thus, the testimony of PW12 to the extent that as per practice investigating officer first prepared the arrest memo, thereafter disclosure statement and then took the personal search is not trustworthy and the same has been made to bring the alleged recovery under the purview of Section 27 of Indian Evidence Act.
48. Now question arises as to why both the witnesses are harping to state that the alleged recovery was affected pursuant to disclosure statement? In this regard, the personal search memo of accused Rashid Ex. PW11/F is relevant. In the said memo, the alleged bag had been shown as recovered during the personal search, which was found containing some old clothes of accused Rashid. If the SC No. 14/10 & 35/10 Page no. 30 of 46 State vs. Rahis & others personal search was taken in terms of rule 26.3 of PPR, it means that the alleged counterfeit currency notes were not in the bag when the personal search was taken, thus the question of producing of the said notes by the accused pursuant to his disclosure statement does not arise.
49. Look the matter from different angle, it is admitted case of the prosecution that non-bailable warrants were pending against the accused Rashid. It is also admitted case of the prosecution that accused Rashid was apprehended at 10.30 am at the instance of ubiquitous secret informer. Both the above witnesses deposed that accused was arrested at 12:00 noon, thereafter, his disclosure statement was recorded and then recovery was affected. It means the seizure memo etc. were also prepared after the recovery. I am unable to understand what the police officials were doing with the accused persons between 10.30 am to 12:00 noon. This further casts a doubt over the alleged recovery.
50. Further, it admitted case of the prosecution that accused Rahis and Jaspal were arrested on December 12, 2009 and they had disclosed the name of accused Rashid. It is also admitted case of the prosecution that since then accused Rashid was absconding. It is also admitted case of prosecution that accused Rashid was arrested on March 11, 2010. Non-bailable warrants were pending against the accused. Police officials of Special Cell were behind him. Knowing all these facts, it is difficult to believe that any person would keep counterfeit currency notes with him. On the converse, he would try to destroy the same to save himself.
51. In support of his contention, learned defence counsel relied SC No. 14/10 & 35/10 Page no. 31 of 46 State vs. Rahis & others upon the judgment Raj Kumar v. The State 2011 (4) JCC 2818 wherein Court also refused to rely upon the recovery which was allegedly produced by the accused from his pocket despite the fact that during the personal search no incriminating article was recovered. The relevant portion is reproduced as under:
"para 18..........As per the evidence on record of aforesaid PWs the personal search of said appellant was conducted vide memo Ex. PW15/D wherein nothing was found in his possession. In that event, evidence of Murari having produced the mobile phone Ex. P-4 from his pocket is not believable."
52. Taking into account the above discussion, I am of the considered opinion that the testimony of PW11 and PW12 is not sufficient to prove that the alleged 20 counterfeit currency notes were recovered from the possession of accused Rashid.
Contentions relating to accused Ashraf:
53. Counsel appearing for the accused vigorously contended that there is no admissible evidence to establish that accused had hatched any criminal conspiracy with the accused Rahis & Jaspal. It was submitted that accused had been shown arrested from H.No. 769 Gali No.20 Jafrabad Delhi whereas accused had no concern with the said house. It was submitted that accused was arrested from H.No. D-23 Jafrabad, Delhi and DW1 has proved this fact. It was submitted that as per prosecution version 40 counterfeit currency notes were recovered from the possession of the accused, it was contended that it is highly unbelievable that any person would sleep in his house after keeping counterfeit currency notes in his pocket.
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State vs. Rahis & others
54. Per contra, learned Additional Public Prosecutor opposed the said contentions by arguing that no reliance should be placed on the deposition of DW1 as he is the close relative of the accused. It was further submitted that there is no reason to disbelieve the deposition of police official witnesses. It was further submitted that accused Ashraf was arrested on the basis of disclosure statement of accused Rahis, thus it is established that accused was involved in the conspiracy with Rahis and Jaspal.
55. Police had arrested the accused Ashraf as his name was surfaced during the disclosure statement of Rahis, who made disclosure statement twice which are exhibited as Ex. PW4/E and Ex. PW4/S. Perusal of the said disclosure statement reveals that accused Rahis had hatched the criminal conspiracy with accused Jaspal and Rashid to print the counterfeit currency notes. In his disclosure statement, he nowhere disclosed that accused Ashraf was also party to the said conspiracy. In his disclosure statement Ex. PW4/E, accused Rahis disclosed that he had given counterfeit currency notes worth of ` 1.50 lac from time to time. He did not disclose that he had given the said currency notes to Ashraf for circulating the counterfeit currency notes in the market. From his disclosure statement it is not clear what was understanding between them. If Ashraf's job was to circulate the said currency notes in the market, it means that Ashraf must have returned the genuine currency notes to Rahis against the said counterfeit currency notes, but Rahis had not disclosed anything about this. Needless to say that the said disclosure statement is not admissible in evidence as same is hit by section 25 of Indian Evidence Act. However, a recovery of distinct fact is admissible in terms of Section 27 of the Indian Evidence Act.
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State vs. Rahis & others
56. Now coming to the evidence led by the prosecution. In this regard, the testimony of PW4, PW12 and PW14 are relevant. PW4 in his examination-in-chief deposed that Rahis had made a disclosure statement about Ashraf stating that he had given fake currency notes to Ashraf. Similarly, PW12 deposed that Rahis had disclosed about Ashraf that counterfeit currency notes could be recovered from him. PW14 deposed that accused Rahis led the police party to the house of Ashraf and at his pointing out Ashraf was apprehended and interrogated. Thus, it is evident that none of the above witnesses deposed that Rahis had even disclosed to them that he had hatched the criminal conspiracy with Ashraf to print the counterfeit currency notes. Nor he deposed that he had assigned the job of circulating the fake currency notes to accused Ashraf. From their deposition at the most it proves that accused Rahis had knowledge that some counterfeit currency notes were also in the possession of accused Ashraf. As already discussed that investigating officer even did not deem it appropriate to analysis the calls detail of the accused persons to ascertain that there was any interaction between them. In the absence of any cogent evidence, I am of the opinion that prosecution has failed to establish that accused Ashraf was part of the alleged conspiracy.
57. Now coming to the next limb of contentions as to whether there are sufficient evidence to prove the alleged recovery from accused Ashraf.
58. Prosecution case is that accused Rahis had led the police party to the house of accused Ashraf, thus they apprehended the accused Ashraf at the instance of Rahis and on search 20 counterfeit currency notes were recovered from his right pocket and 20 counterfeit SC No. 14/10 & 35/10 Page no. 34 of 46 State vs. Rahis & others notes from his left pocket of his pant. PW4 deposed that they reached the house of Ashraf at about 3.30 am whereas PW12 deposed that they reached at about 4.00 am. PW4 deposed that they stayed there till 5.30 am whereas PW12 deposed that they remained there till 5.00 am. PW4 deposed that he did not recollect whether I.O. had made any effort to join any person from the occupants of other rooms in the investigation. But deposed that IO had rung the door bell of some houses but none had responded. He further deposed that he did not remember whether IO had made any effort to join any person from nearby houses. Thus, from his deposition it can be culled out that PW4 is not sure whether IO had made any effort to join any person public at the time of alleged recovery from accused Ashraf. However, PW14 in his cross-examination deposed that he had made efforts to call other occupants of the building to join investigation but none came forward. But deposed that he did not remember whether he had mentioned this fact in his case diary or not. He sought permission to see the case diary of particular date, thereafter, deposed that he had not mentioned in his case diary. If he had made efforts to join public persons, he should have mentioned the same in the case diary. He further admitted that the case-diary does not sign by any senior officer. He further admitted there are 16 leafs which are photocopies whereas other leafs are carbon copies. He further admitted that he had not shown his case-diary to his inspector R.S. Sherawat. From his testimony, it is culled out that he had not made any effort to join any public independent witness to join the investigation.
59. It is admitted case of the prosecution that police had apprehended the accused Ashraf between 3.30 am to 4.00 am. It means when police reached the house of Ashraf, he must be sleeping. If it was so, it is highly improbable that he would be carrying 40 counterfeit SC No. 14/10 & 35/10 Page no. 35 of 46 State vs. Rahis & others currency notes in both the pockets of his pant. When the currency notes were produced in the Court, the same were not only new but having no folding marks. It is further improbable that twenty currency notes can be kept in the pocket of pant without having any folding marks.
60. Prosecution case is that accused was arrested from H.No. 769, Gali No.20 Jafrabad, Delhi. But prosecution failed to establish what was the status of accused; whether he was owner of the house; or he was mere a tenant. In this regard, no evidence is adduced. Consequently, there is no evidence in which capacity he was residing there. Accused Ashraf in his statement under Section 313 Cr.P.C. categorically stated that he was not arrested from the said house and took the plea that he was lifted from D-23 New Jafrabad from the house of his brother-in-law on December 11, 2009. To prove this fact, he has examined DW1 Abid who categorically deposed that Ashraf was residing with him at the said address and police had lifted him from his house on December 11, 2009. He further deposed that accused Ashraf had his driving license from the said address. However, he admitted that his name is not mentioned in his ration card. Upon this, learned Additional Public Prosecutor contended that the accused Ashraf was not residing at the said address. No doubt, Ashraf name is not mentioned in the ration card of DW1 but the question arises what document prosecution has adduced to show that he was residing at H.No. 769. It is settled law that the testimony of defence witness can not be rejected mere fact that he is interested in the acquittal of accused. DW1 categorically deposed that accused Ashraf had driving license from the said address and he had brought the same. Moreover, investigating officer failed to collect any evidence whatsoever that accused Ashraf was residing at H.No.769. In view of the above, I am of the opinion that prosecution has even failed to SC No. 14/10 & 35/10 Page no. 36 of 46 State vs. Rahis & others establish that accused had any connection with H.No. 769, Gali No.20, Jafrabad from where he was allegedly arrested.
61. Pondering over the ongoing discussion, I am of the opinion that prosecution has failed to bring home the guilt of accused Ashraf beyond the shadow of all reasonable doubts.
Contentions relating to accused Rahis and Jaspal:
62. Learned counsel appearing for the accused persons vehemently contended that the story of the prosecution that PW14 had received a secret information and pursuant to that secret information the alleged raid was conducted is a fabricated story because as per prosecution story accused persons were indulging in the activities of counterfeit currency notes for the last 7-8 months, if it was so, why the secret informer had not informed the Special Cell prior to that or if the Special Cell had information, why they had not conducted the raid prior to that. It was submitted that since no raid was conducted, no official vehicle was used and they had concocted the false story of using their private vehicles, but they had not produced any log book of the said vehicles. It was further contended that in order to prove that accused had purchased the printer from Kapil Sehgal, prosecution has relied upon the testimony of PW1, Kapil Sehgal but it was argued that his testimony is not helpful to establish that accused persons had visited his shop to buy the alleged recovered printer. It was further submitted that prosecution version is that PW14 had hired a tempo bearing registration no. DL-1LLL-3081 to transport the case property from spot to the police station but no such vehicle is in existence and this fact has been proved by the accused during trial. It was further contended that there are material contradictions SC No. 14/10 & 35/10 Page no. 37 of 46 State vs. Rahis & others between the deposition of witnesses examined by the prosecution because some witness deposed the alleged recovery was affected from first story whereas other witnesses deposed that it was affected from ground floor. Similarly, some witnesses deposed that no person met at 123 Jhilmil Colony, Delhi whereas other witnesses deposed that two girls were met whereas PW14 deposed that there was one lady but that slipped away after seeing the police party. Similarly, some witnesses deposed that after lodging the FIR HC Ram Gopal returned the spot whereas some person deposed that he met in the police station. It was submitted that no public witness was examined at the time of searching the house, provisions of law not followed at the time of taking search of the house.
63. On the other hand, learned Additional Public Prosecutor refuted the said contentions by arguing that the contradictions pointed out by learned defence counsel are minor in nature and not fatal to the prosecution case. It was submitted that mere fact that investigating officer had used private vehicles in raid does prove that the case is false. It was further submitted that PW14 in deposition clarified that there is some clerical mistake in mentioning the registration number of the tempo through which the case property was transported. It was stated that the deposition of PW1 establishes that accused Rahis had purchased the printer in the fake name of Ashwani Kumar and PW1 has identified both the accused persons. It was further stated that though efforts were made to join independent witness at the time of taking search of the house, but none came forward, thus, it can not be said that investigating officer had not followed the provisions of law at the time of taking search of the house.
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64. Counsel appearing for both the parties have not cited any case law in support of their contentions. Nor any question of law was raised by either of them.
65. I heard rival submissions advanced by counsel for parties and perused the record carefully and gave my thoughtful consideration to their contentions.
66. It is admitted case of prosecution that PW14 had received the secret information that accused Rahis and Jaspal were indulging in the racket of printing of fake currency notes at Pratap Khand, Jhilmil Colony, Delhi and they would come at Vivek Vihar in front of B Block, Phase II to supply huge quantity of fake currency notes in the denomination of ` 500 on motorcycle. But no question was put to the prosecution witnesses when they appeared in the witness box. In other words, defence has not challenged the said secret information. If, accused persons had any doubt over the said information, they should have challenged the same during the cross-examination of prosecution witnesses. But accused persons did not provide any opportunity to the prosecution witnesses to explain why they had not conducted raid prior to December 12, 2009 when accused were involved in printing of counterfeit currency notes for the last 7-8 months. In the absence of any contrary evidence, I do not find any reason to disbelieve the deposition of prosecution witnesses in this regard.
67. It is admitted case of the prosecution that during raid, investigating officer had used private vehicles. As per the deposition of PW14, one car belonged to him, which he was driving whereas another SC No. 14/10 & 35/10 Page no. 39 of 46 State vs. Rahis & others car belonged to inspector Subhash Vats. Though generally, official vehicle should be used at the time of conducting raid, yet if circumstances warrant use of private vehicles, the same can be used during raid. But the disturbing factor is that investigating officer even did not deem it appropriate to prepare the temporary log book of the said vehicles. Impartiality and transparency are the two vital elements of investigation. Log book helps the Court to appreciate the deposition of police officials. In the absence of log book of the vehicle, defence got an opportunity to raise a finger over the deposition of witnesses examined by the prosecution. To my mind, it was the paramount duty of the investigating officer to maintain the log book of the vehicles used in the raid, but he failed to prepare the same without any reasonable explanation.
68. Prosecution case is that the case property was transported to the police station of Special Cell in a Vikram Tempo bearing registration no. DL-ILLL-3081 as mentioned in the receipt Ex. PW14/F. During trial, accused had obtained information about the said tempo under the Right to Information Act and found that no vehicle is registered vide registration no. DL-ILLL-3081 and said information is exhibited as Ex. PW14/D-1. During his cross-examination, PW14 made an attempt to clarify by deposing that the registration of said tempo was DL-ILL-3081 and not DL-ILLL-3081. On the basis of said clarification, it was contended by learned Additional Public Prosecutor that the it was a clerical mistake. No doubt, it could be clerical mistake, but the question is what evidence prosecution has produced to establish the said fact. Exhibit PW14/F was prepared by PW14, thus, it was a documentary evidence. It is settled law that documentary evidence prevails over the oral deposition. When defence has placed a document obtained under RTI Act that no vehicle is SC No. 14/10 & 35/10 Page no. 40 of 46 State vs. Rahis & others registered under the said registration number, onus was shifted upon the prosecution to establish that either the said vehicle was in existence or it was mere a clerical mistake by producing the driver/owner of the said vehicle. Mere by saying that it was a clerical mistake, prosecution can not be absolved from its onus.
69. Prosecution version is that accused Rahis had purchased the printer from Kapil Sehgal. In this regard the deposition of PW1 is relevant. PW1 in his examination-in-chief deposed that on December 15, 2009 police officials visited his shop along with accused Rahis and Jaspal and after seeing them, he informed the police that he had sold a laser printer make Canon-1180 and given this in writing on his letter head, exhibited as Ex. PW1/A. He further disclosed that accused Rahis had disclosed his name as Ashwani Kumar. He also produced the bill book and the copy of relevant cash memo is exhibited as Ex. PW1/B. It is admitted case of prosecution that the alleged cash memo was issued on April 25, 2009 whereas police had visited his shop on December 15, 2009. In other words, he had seen the accused Rahis and Jaspal after about 8 months. Perusal of cash memo Ex. PW1/B reveals that neither the make of printer nor serial number of the printer is mentioned in the cash memo. In the absence of said information, it is not clear on what basis PW1 has deposed that the said cash memo pertains to the alleged recovered printer-cum-scanner. Admittedly, no CCTV was installed in the shop of PW1, thus police had no opportunity to examine the footage. PW1 has also failed to depose any special fact, which may impelled him to remember the description of accused persons. Though PW1 deposed that he can recognise all his 120 customers to whom he had sold machines during the last one year, yet to my mind it not feasible. When it was pointed out to PW1 that as per the cash memo book brought by him, SC No. 14/10 & 35/10 Page no. 41 of 46 State vs. Rahis & others he had sold only three machines in the month of April 2009, he deposed that he was having three bill books. It is not clear why he was maintaining three bill books. He further deposed that since he used to deal in old and used machines, he did not mention the model and serial number on the cash memo. This explanation is not convincing, once, he is issuing the invoice, it was his duty to mention all the particulars of the machine so that in case of dispute it could be ascertain which machine was sold to which customer. To my mind the testimony of PW1 is not sufficient to establish that accused Rahis and Jaspal had purchased the alleged recovered printer from PW1.
70. Indisputably prosecution case is that after apprehending the accused Rahis, pursuant to the disclosure statement made by Rahis, investigating officer had conducted a raid at 123, Pratap Khand, Jhilmil Colony, from where police had not only arrested the accused Jaspal but also recovered some counterfeit currency notes and printing material including computer, printer-cum-scanner etc. PW14 SI Dilip in his examination-in-chief did not depose that he had made any effort to join any public independent person at the time taking search of the said premises. However, in his cross-examination, he denied the suggestion that he did not ask any public person to join the raiding party. However, he admitted that no public person had joined the raiding party. He further deposed that he can not tell the name and address of public person to whom he made a request. He further deposed that he did not go up- stairs, thus, can not tell how many rooms were constructed thereon. He admitted that at the time of alleged recovery no public person was present and seizure memo does not bear the signature of any public person. From the above deposition, it can be safely culled out that he did not ask any neighbour or other residents of the same premises to join the SC No. 14/10 & 35/10 Page no. 42 of 46 State vs. Rahis & others raiding party otherwise he would be in a position to tell at the least premises number of whose occupants he made a request to join the raiding party. Now question arises as to whether investigating officer had followed the provisions of law at the time of conducting search at 123, Pratap Khand, Jhilmil Colony or not?
71. Section 100 Cr.P.C deals with the general provisions of search. Sub-section 4 to Section 100 Cr.P.C. reads as under:
"Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
(emphasis supplied)
72. Now question arises as to whether such person is required to attend the Court to prove the said search as learned Additional Public Prosecutor strenuously contended that in a city like Delhi no public person comes forward to help the police as such persons do not want to appear before the Court as a witness as it causes lot of hardship to them. Sub-section 5 to Section 100 is the appropriate answer to the said query and same runs as under:
"The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it."
73. Thus, from sub-section 4 & 5 to Section 100 Cr.P.C. it SC No. 14/10 & 35/10 Page no. 43 of 46 State vs. Rahis & others becomes explicit that before making a search of a house, it is mandatory to call upon two or more independent and respectable inhabitants of the same locality and if no such person is available in the said locality, such persons should be called from other locality. It is pertinent to state that the persons should be independent and respectable. Mere asking from any tom and harry who are not even interested to disclose their name to the police does not amount compliance of the said mandatory provisions. Since, in the instant case no effort was made to call upon any independent and respectable persons either from the same locality or from any other locality, thus I am of the view that investigating officer had not complied with the provisions of Section 100 (4) of Cr.P.C. at the time of taking search of 123, Pratap Khand. In view of sub-section 5 to Section 100 Cr.P.C. I do no find any substance in the contention of learned Additional Public Prosecutor that no public person comes forward to witness a search as he is required to appear in the witness box.
74. No doubt PW8 in his examination-in-chief deposed that when he reached the spot, he and HC Rajiv stayed at ground floor whereas other police officials went up-stairs whereas prosecution case is that all recovery was affected from the ground floor. From the deposition of PW8 it appears that he had reached the spot later on along with inspector Govind Sharma. Since his testimony is contrary to the deposition of PW4, PW12 and PW14, his testimony does not inspire any confidence.
75. Purpose of handing over the seal to an independent witness after sealing the case property is that no one could temper the case property. But in the instant case, investigating officer had considered this requirement merely a formality as PW14 had taken the seal from PW12 SC No. 14/10 & 35/10 Page no. 44 of 46 State vs. Rahis & others ASI Devender on number of times to seal the other case properties. To my mind, this practice is not appreciable. Since, other police officers like inspector Subhash Vats, SI Shiv Raj, inspector Govind Sharma etc were present at the time of subsequent recoveries, investigating officer should have used their seal if he required the seal to seal the case properties.
76. It is admitted case of the prosecution that the case property allegedly recovered from accused Rahis, Jaspal and Ashraf was deposited with the MCH (M) on December 13, 2009 whereas the case property allegedly recovered from accused Rashid was deposited with MHC (M) on March 11, 2010. PW9 in his deposition deposed that the case property deposited on December 13, 2009 was sent to CFSL Hyderabad on January 9, 2010 and FSL Rohini on January 19, 2010 whereas the case property deposited on March 11, 2010 was sent to FSL Rohini on April 8, 2010. Thus, there is a delay of about 25 days in sending the case property to CFSL Hyderabad whereas there is delay of more than one month in sending the case property to FSL Rohini and there is also delay of about 26 days in sending the case property to FSL Rohini which was seized on March 11, 2010. There is no explanation about the said delay from the prosecution side. Moreover, PW9 in his cross-examination deposed that he did not recollect at what time the pullands were deposited with him. He stated that he even did not remember whether the said pullands were deposited with him in the morning, afternoon or in the evening.
77. Taking into account the ongoing discussion coupled with earlier discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Rahis and Jaspal beyond the shadow of all reasonable doubts.
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78. Mulling over the foregoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused persons beyond the shadow of all reasonable doubts, thus, in my view all accused deserve benefit of doubt, thus, I hereby acquit all the accused persons from all the charges.
79. Seized case properties be confiscated to the State and be destroyed after the expiry of period of appeal or revision and if any appeal of revision is filed then after the decision of such appeal or revision.
80. In order to bring more transparency and impartiality in the investigation, copy of judgment be sent to the Commissioner of Police to enable him to issue necessary direction to the Special Cell to follow the Punjab Police Rules in its letters and spirit at the time of conducting investigation.
Announced in the open Court on this 4th day of August 2012 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central, Tis Hazari Courts, Delhi SC No. 14/10 & 35/10 Page no. 46 of 46