Punjab-Haryana High Court
Naib Singh And Others vs State Of Haryana on 23 January, 2014
Criminal Appeal-S-1607-SB of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal-S-1607-SB of 2003 (O&M)
Date of Decision: 23.01.2014
Naib Singh and others ....Appellants
Versus
State of Haryana ....Respondent
CORAM: HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. H.S.Gill, Sr. Advocate with
Mr.R.K.Dhiman, Advocate
for the appellants.
Mr. Rajat Mor, Deputy Advocate General, Haryana,
for the respondent-State.
****
1. Whether Reporters of local papers may be allowed to see
the judgment? Yes/No
2. To be referred to the Reporter or not? Yes/No
3. Whether the judgment should be reported in the Digest?
Yes/No
MAHAVIR S. CHAUHAN , J. (ORAL)
Sita Ram, Naib Singh, Baljinder Singh and Harphool Singh were put to trial on the allegations that Nirmal Singh, the complainant, came in contact with Naib Singh, Baljinder Singh and Harphool Singh, the appellants herein, at Bus Stand, Shahabad. Appellants represented to him that they could quadruplicate the currency notes and would supply four times fake currency notes against genuine currency notes. Complainant sought two days time and contacted his friend Surinder Singh. Both of them suspected that the aforesaid persons were members of a gang dealings in fake Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -2- currency notes. They arranged a micro-cassette recorder, met the appellants at Markanda Temple Park Shahabad on 02.10.1997. Nirmal Singh asked the appellants to show two currency notes of same denomination and serial number. The appellants replied in the affirmative and told that the complainant would have to deposit with them 20% of the amount as security. Nirmal Singh struck a deal with the appellants to get a sum of Rs.one lac quadruplicated and promised that when the accused would show to him two currency notes of the same denomination and serial number, he would pay an amount of Rs. 20,000/- as security for quadruplication of currency notes worth Rs. One lac. This conversation was recorded in the micro cassette. Nirmal Singh and Surinder Singh fixed 05.10.1997 as the day of their meeting with the appellants. On that day, appellants met the complainant at Markanda Temple park. They showed currency notes of denomination of Rs.100/- and Rs.50/- with same serial numbers and of same denomination. Nirmal Singh suspected the accused persons to be indulging in cheating. He slipped away from the spot on the pretext of bringing money and informed Assistant Sub Inspector, Jai Singh at Barara Chowk, Shahabad, about the incident referred to above. ASI Jai Singh recorded statement of Nirmal Singh, appended a note thereon and it having been sent to the police station, a formal First Information Report (for short, 'the FIR') came to be recorded. ASI Jai Singh (Investigating Officer) accompanied by the complainant went to the spot, apprehended the appellants and searched their person. From the person of appellant-Harphool Singh @ Bhana, five currency Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -3- notes of the denomination of Rs.100/- each of OBC series, starting from serial number 819042, one of the currency note, with serial number 819043 having been changed to 819048, were recovered. From search of person of appellant Naib Singh, 17 currency notes of the denomination of Rs.50/-each were recovered. Last digit of one of the currency notes, bearing serial number 5 BD 239063, had been changed to 5 BD 239068. Personal search of accused Baljinder Singh led to a recovery of 10 currency notes of the domination of Rs.50/-each. Last digit of one of the currency notes bearing serial number 5 BC 239041 had been changed to 5 BC 239044. Surinder Singh PW also produced, before the Investigating Officer, micro cassette having recorded conversation between the complainant and the aforesaid accused. This micro cassette was also taken in police custody. During investigation, it was also revealed that the aforesaid persons were working for one Sita Ram.
The recovered currency notes were got examined from Bank Note Press, Dewas and were found to have been extrapolated by changing the last digit of the serial numbers with red ink.
After completion of investigation, a report in terms of Section 173(2) Criminal Procedure Coder, 1973 (for short-'Cr.P.C.'), was submitted before the Jurisdictional Magistrate, who on perusal of the report found offences triable by the Court of Session to be involved, accordingly, committed the case to the Court of Session.
The matter having been entrusted to the Court of Additional Sessions Judge, Kurukshetra, the said Court afforded a hearing to the prosecution and the defence and appraised the Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -4- materials available on record to find out that a prima facie case for commission of offence triable under Sections 420, 489-A, 489-B and 489-C of the Indian Penal Code to exist. The accused were, accordingly, charged.
Prosecution examined PW1-Sub Inspector Mam Chand, PW-2 Head Constable Mangat Ram, PW-3 Head Constable Jagdish Chander, PW-4 ASI Teg Singh, PW-5 Nirmal Singh and PW-6 Jai Singh while Pws Constable Kehar Singh, Head Constable Jai Raj and Surinder Singh were given up. Besides oral evidence, prosecution also proved on record copy of FIR No.74 of 1996 as Ex.PA, statement of Nirmal Singh as Ex.PB, endorsement of the Investigating Officer Jai Singh Ex.PB/1, copy of first information report as Ex.PC, memoranda of recovery of car, currency notes and micro cassette as Exs PD, PE, PF and PG, respectively, rough site plan as ExPJ and report of Bank Note Press, Dewas, as Ex.PK.
On conclusion of evidence of the prosecution, the entire incriminating circumstances, appearing on record in the prosecution evidence, were put to the accused so as to enable them to put forth their explanation vis-a-vis the same. The accused denied all the circumstances as false and incorrect and reiterated their plea of innocence and false implication.
No evidence, however, in defence was led.
Learned Additional Sessions Judge, Kurukshetra, after hearing the learned Public Prosecutor and the learned defence counsel and on appraisal of the evidence available on record came to the conclusion that the prosecution could not establish its case Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -5- against accused Sita Ram and at the same time it could not prove the accusations against the other accused namely Naib Singh, Baljinder Singh and Harphool Singh @ Bhana except for the offence punishable under Section 489-C of the Indian Penal Code. Accordingly, vide judgement, dated 22.08.2003, Sita Ram, was acquitted of the offence charged against him, while Naib Singh, Baljinder Singh and Harphool, the appellants herein were convicted for the offence under Section 489-C of the Indian Penal Code and were acquitted of all other offences charged against them. They were directed to undergo rigorous imprisonment under Section 489-C of IPC for a period of five years and to pay a fine of Rs,1000/- each and in default of payment of fine, they were required to undergo further rigorous imprisonment for two months, each vide order of sentence dated 25.08.2003.
To challenge their conviction and order of sentence as recorded by the learned Additional Sessions Judge, Kururkshetra, the aforesaid accused persons namely Naib Singh, Baljinder Singh and Harphool @ Bhana have come before this Court by way of the instant criminal appeal.
Respondent-State is contesting the appeal.
I have heard Sh.H.S.Gill, Sr. Advocate, being assisted by Sh.R.K.Dhiman, Advocate for the appellants and Sh.Rajat Mor, Deputy Advocate General, Haryana for the respondent-State.
Learned senior counsel representing the appellants has submitted that in the report Ex.PK of Bank Note Press, Dewas, has very categorically stated that the currency notes sent for examination Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -6- were found to be genuine and only the serial numbers of some of the currency notes were found to be tampered with. According to him, the currency notes were not sealed, after these were stated to be recovered from the appellants, and the police official, who took the currency notes to Bank Note Press, Dewas, has not been examined as a witness and that being so, tampering of the serial numbers during transit cannot be ruled out. According to learned senior counsel, the official, who took the currency notes to the Bank Note Press having not been examined as a witness, the appellants have been denied an opportunity to cross-examine him and thereby making an attempt of bringing to the fore facts and circumstances, which led to tampering with the currency notes and that being so the appellants are entitled to acquittal by allowing the benefit of doubt on that account. He relies upon a judgment of this Court reported as Dev Raj Vs. State of Punjab, 2010(2) RCR (Criminal), 595, to support his contention that non examination of the official, who took the currency notes for examination and failure of the Investigating Agency to seal the currency notes before sending the same for such examination, renders the conviction of the appellants unsustainable.
Learned senior counsel has also relied upon another judgment of this Court in Ram Kumar Vs. State of Haryana, 2010(3) RCR (Criminal), 621, to contend that the prosecution has failed to bring on record any evidence to show that the appellants intended to use the tampered currency notes as genuine, therefore, the conviction recorded by the trial Court cannot be sustained.
However, the learned State counsel has expressed his Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -7- disagreement with what has been argued on behalf of the appellants. According to him, on the basis of non-sealing of the currency notes and non-examination of official who took the currency notes for examination, no benefit can be given to the appellants as, the notes were recovered from the appellants, during the course of investigation and as per report Ex.PK, the currency notes were found to be tampered with and, as such, the finding of conviction recorded by the trial Court cannot be interfered with.
Nothing more has been urged on either side.
From what has been said for and against the judgment of conviction and order of sentence recorded by the Court below, the only question that survives for adjudication is whether conviction of the appellants recorded by the learned trial Court under Section 489- C of the Indian Penal Code can be sustained in view of the objections put forth on behalf of the appellants. Answer to the question, in my considered opinion, has to be in the negative. Reasons are not very far to seek.
Undisputedly, the currency notes, said to have been recovered from the possession of the appellants, were not sealed on the spot. These currency notes remained in possession of the police officials till these were sent for examination to Bank Note Press, Dewas. Even while despatching the currency notes to Bank Note Press Dewas through HC Om Parkash, these were not sealed by the Investigating Agency. Said HC Om Parkash, the official, who, as per prosecution case, took the currency notes to the aforesaid press has not been examined as a witness to prove that the currency notes Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -8- were delivered by him in the same state in which these were handed over to him.
That being the situation, contention raised on behalf of the appellants that possibility of the currency notes having been tampered with during the interregnum these remained in custody of the police or during transit to Bank Notes Press, Dewas, cannot be ruled out, is found to be plausible and meritorious. The prosecution could have examined HC-Om Parkash to dispel this objection of the appellants by bringing on record in the evidence of said HC Om Parkash that the currency notes, when given to him were already tampered and were delivered by him at Bank Note Press Dewas without permitting himself or anybody else to tamper with the same. Unfortunately, this has not been done. Similarly, the prosecution has not been able to come out of the criticism that the currency notes after their recovery from the possession of the appellants, remained in custody of the police officials and, as such, these could be tampered with while in possession of the police.
In a similar situation that arose in Dev Raj Vs. State of Punjab (supra), the correctness of the accusations made by the prosecution against the accused therein was doubted by this Court and allowing benefit of doubt to the appellant, their conviction recorded by the Court below was set aside.
Nothing to the contrary has been shown during the course of hearing.
It also needs to be pointed out that PW Nirmal Singh, as per case of the prosecution, agreed to get the money quadruplicated Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document Criminal Appeal-S-1607-SB of 2003 (O&M) -9- when an offer for the purpose was statedly made by the appellants in the first instance. That being so, PW Nirmal Singh comes within the definition of accomplice because, by doing so, he himself made his active participation in the transaction. That being so evidence of PW Nirmal Singh becomes tainted and very weak in character. In the absence of any independent corroboration, no implicit reliance could be placed on the evidence of such an accomplice and, incidentally, there is no independent corroboration to what above said Nirmal Singh has stated during the course of the trial. That being so, the case of the prosecution is rendered of no evidence, and, therefore, the conviction recorded by the Court below against the appellants cannot be sustained.
Resultantly, the appeal succeeds and is accepted. Judgment of conviction dated 22.08.2003 and order of sentence dated 25.08.2003, passed by learned Additional Sessions Judge, Kurukshetra are set aside and the appellants are acquitted of the offences of which they were charged and sentenced.
The bail/surety bonds, while admitting to bail, pursuant to order dated 05.09.2003 of this Court, stand discharged.
(Mahavir S. Chauhan) 23.01.2014 Judge anju Anju 2014.01.31 10:21 I attest to the accuracy and integrity of this document