Delhi High Court
Ram Prasad vs State Of Nct Of Delhi on 13 November, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 7th September, 2017
Judgement pronounced on: 13th November, 2017
+ CRL.A.825/2017
RAM PRASAD .....Appellant
Through: Mr. Sanjeev Sarleen , Advocate.
versus
STATE OF NCT OF DELHI ....Respondent
Through: Mr. Akshai Malik, APP for the
State with ASI Sanjay Kumar.
+ CRL.A.849/2017
VIKAS CHAUDHARY .....Appellant
Through: Mr. Jatin Rajput, Advocate.
(DHCLSC)
versus
STATE OF NCT OF DELHI ....Respondent
Through: Mr. Mukesh Kumar, APP for the
State with ASI Sanjay Kumar.
Judgement reserved on: 27th September, 2017
Judgement pronounced on: 13th November, 2017
+ CRL.A. 816/2017
KRIPA SHANKAR SHARMA .....Appellant
Through: Mr. P. Kumar and Mr. Abhih
Kumar, Advocates.
versus
STATE OF NCT OF DELHI ....Respondent
Through: Ms. Anita Abraham, APP for the
State with ASI Sanjay Kumar from
PS-SOS, Crime, Rohini, Sector-18.
CRL.A.825/2017,849/2017,816/2017 Page 1 of 23
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By this common judgement, I shall dispose of the above three
appeals preferred against the common judgement dated 31.07.2017
and order on sentence dated 05.08.2017 passed by the Additional
Sessions Judge in case FIR No. 117/2010 registered under Section
489C of the Indian Penal Code, 1860 (hereinafter referred to as
'IPC') at PS. Crime Branch, whereby all the three appellants were
convicted under Section 489B/489C/120B/75/34 of IPC and
sentenced to undergo Rigorous Imprisonment for a period of three
years and fine of Rs.3000/- each and in default of payment of fine,
simple imprisonment for a period of one month.
2. Briefly stated, facts relevant for the purpose of deciding the three
appeals are that, a secret information was received by SI Sharad
Kohli that one Ram Prasad was involved in circulating fake Indian
currency notes in the area of Delhi and NCR. On receipt of the said
information, a team constituting SI Sharad Kohli, ASI Harcharan
Singh, ASI Ajmer, HC Kanwar Pal, Ct. Atul, Ct. Neeraj and Ct.
Kaushal was formed that reached the spot where a deal was struck
with Ram Prasad through a decoy customer/ASI Harcharan Singh.
Ram Prasad agreed to give a total of Rs. 2.10 Lakhs fake Indian
currency notes of the denominations of Rs.500/- and Rs.1000/-in
lieu of Rs. 1.5 Lakhs original currency notes.
On 05.08.2010 at around 05:20 p.m., accused Ram Prasad was
apprehended while he was circulating fake Indian currency notes of
the denominations of Rs.500/- and Rs.1000/-and a total of Rs.2.10
CRL.A.825/2017,849/2017,816/2017 Page 2 of 23
Lakhs were recovered from his possession which were seized vide
seizure memos. Thereafter the present case was registered vide FIR
No.117/2010 and investigation was taken up by Inspector Rajesh
Sharma.
During investigation, a rough site plan was prepared by the IO at
the instance of SI Sharad Kohli and statements of the witnesses
were recorded. Accused Ram Prasad was arrested and upon
interrogation he disclosed that he procured fake currency notes
from one Vikas Chaudhary of Mathura who alongwith Panditji of
Noida further procured fake Indian Currency notes from Kolkata.
Thereafter on 06.08.2010,Vikas Chaudhary was apprehended at the
instance of accused Ram Prasad from old Cantt Sadar Bazaar,
Mathura and a total of Rs.2.99 Lakhs of fake Indian currency notes
were recovered from his possession. Accused Vikas Chaudhary
was arrested and upon interrogation he further revealed that he
alongwith one Kripa Shankar Sharma of Noida, UP used to procure
fake Indian currency notes from Muklesh and Mossarraf Hossain
of Malda, West Bengal. Further, Rs.1 Lakh original currency notes,
which was paid by accused Ram Prasad to accused Vikas
Chaudhary on 05.08.2010 in lieu of Rs.2.5 Lakhs fake Indian
currency notes, were also recovered from the house of Vikas
Chaudhary and the same were seized vide seizure memo.
On 07.08.2010, accused Kripa Shankar Sharma was apprehended
at the instance of Vikas Chaudhary from the main road in front of
Lajpat Rai Market, Delhi and a total of Rs.3 Lakhs of fake Indian
currency notes were recovered from his possession. Accused Kripa
CRL.A.825/2017,849/2017,816/2017 Page 3 of 23
Shankar Sharma was arrested and upon interrogation he further
revealed that he alongwith Vikas Chaudhary used to procure the
fake Indian currency notes from Muklesh and Mossarraf Hossain
of Malda, West Bengal. He also disclosed that at times, advance
money was given to Mossaraf Hossain by depositing the amount in
Axis Bank account in the name of Mohd. Amirul Sheikh.
Raids were conducted in Kolkata and Malda, West Bengal to
apprehend Muklesh, Mossarraf Hossain and Mohd. Amirul Sheikh.
On 20.08.2010 accused Mohd. Amirul Sheikh was arrested from
Kalia Chak Malda, West Bengal. During interrogation he revealed
that he had used his Axis Bank Account No. 389010100029467 on
the instruction of Mossarraf Hossain for the purpose of transaction
of money, which was used by Mossarraf Hossain for
purchase/supply of fake Indian Currency notes.
Efforts were also made to arrest Mossarraf Hussain and Muklesh of
Malda, which however failed.
The FIR No. 117/2010 was registered under
Sections 489B/489C/120B/75/34 of IPC, however on 28.03.2011, a
charge under Section 489C IPC was framed against
accused/appellants Ram Prasad, Vikas Chaudhary and Kripa
Shankar Sharma and a common charge under Section 120-B IPC
was framed against all the accused persons to which they pleaded
not guilty and claimed trial.
3. The prosecution, to substantiate the charges levelled against the
appellant, examined 10 witnesses, in all. After meticulously
examining the evidence led by the parties, the Trial Court
CRL.A.825/2017,849/2017,816/2017 Page 4 of 23
convicted the appellants under Section 489C IPC and sentenced
them as mentioned hereinbefore. Co-accused Mohd. Amirul Sheikh
was granted benefit of doubt and was acquitted of charges framed
against him.
4. By the appeal at hand, the appellant Kripa Shankar Sharma
impugns not only his conviction but also the order on sentence.
Arguments addressed on behalf of the appellant Kripa Shankar
Sharma
5. Addressing arguments on the present appeal, learned Counsel for
the appellant submitted that the impugned judgment suffers from
several infirmities and the Trial Court had gravely erred in
convicting and sentencing the appellant; that the entire story of the
prosecution has been cooked up in the office of the Crime Branch
and no senior office or independent witness has been associated at
any stage of investigation; that perusal of the testimonies of the
prosecution witnesses reveals that the secret informer has been a
part of the investigation team throughout, until the recovery of the
fake currency notes and hence his identity was revealed to the
accused persons; that the secret informer has not been cited as a
witness; that non joinder of independent witness makes the alleged
recovery totally unbelievable; that perusal of the testimonies of the
prosecution witnesses reveals that there are material contradictions
and severe infirmities going to the root of the matter; that the
falsity of the prosecution story is also apparent from the fact that
the FIR number was written on the top left side of the seizure
memos which are in the same handwriting and in the same flow,
CRL.A.825/2017,849/2017,816/2017 Page 5 of 23
though the rukka was not even sent to the police station for
registration of the case at the time the seizure memos were
prepared; that the prosecution has failed to prove the alleged
recovery from the accused persons as no CFSL Form was filled as
alleged by the first and second IO, as nothing has come in evidence
that the same was deposited alongwith case property in the
Malkhana; that neither the Malkhana Moharer has been examined
by the prosecution nor an affidavit has been filed to testify the safe
custody of the recovered currency notes; that the official vehicle
was not used by the raiding team during investigation even though
the crime branch is the unit of Delhi police and is well equipped
with all instruments including the vehicles; that the defence
witnesses examined by the accused/appellant have clearly proved
that the accused persons were lifted by the police and that their
depositions carry equal weight to that of the prosecution witnesses;
that Section 489C IPC entails a conscious possession and the
burden lies on the prosecution to prove that at the time when the
accused/appellant was in possession of the currency notes, he knew
that they were forged.
6. To buttress his arguments, learned Counsel for the appellant has
relied on the judgements in Peeraswamy v State of NCT of Delhi
reported in 139 (2007) DLT 456, Dudh Nath Pandey v State of
Uttar Pradesh reported in (1981) 2 SCC 166, State of Haryana v
Ram Singh reported in (2002) 2 SCC 426, Banti v State of M.P
reported in (2004) 1 SCC 414, Dr. S.L. Goswami v State reported
CRL.A.825/2017,849/2017,816/2017 Page 6 of 23
in 1972 CAR 202 and M. Mammutti v State of Karnataka reported
in AIR 1979 SC 1705.
Arguments addressed on behalf of the appellants Ram Prasad
and Vikas Chaudhary
7. Learned Counsels for the appellants Ram Prasad and Vikas
Chaudhary, on instructions, stated that the appellants have opted
not to challenge the findings on conviction under Section 489C of
IPC. They however prayed to take a lenient view and to modify the
sentence as the appellants have already completed substantial
portion of the substantive sentence awarded to them by the Trial
Court.
Arguments raised on behalf of the State
8. Refuting the submissions of the learned counsel for the appellants,
learned APP appearing for the State, submitted that the impugned
judgement does not call for any interference. Counsel further
submitted that the prosecution has been able to prove its case
against the appellants, beyond any shadow of doubt, as all the
witnesses have duly supported the case of the prosecution and there
were no discrepancies in their statement; that in view of the
recovery of huge fake currency notes from the possession of the
appellants no leniency is called for and they deserve to be
convicted for the offences for which they have been charged.
9. As per the nominal roll, the sentence undergone by the appellant
Kripa Shankar as on 01.11.2017 is 1 month 28 days and that by
appellant Vikas Chaudhary is 2 years 2 months 1 day. However the
appellant Ram Prasad has been released from jail on 24.10.2017
CRL.A.825/2017,849/2017,816/2017 Page 7 of 23
after completion of his sentence. Hence the present appeal is
rendered infructuous in respect of appellant Ram Prasad.
10. On the basis of evidence, it is now to be seen whether the
prosecution had succeeded in proving the offence alleged against
the appellants under Section 489C IPC or not. The evidence of the
prosecution is to the effect that fake Indian currency notes were in
possession of the three appellants and these were recovered by a
team of police officials constituted by SI Sharad Kohli/PW-4,
comprising of HC Kanwar Pal/PW-2, Ct. Kaushal/PW-3,
ASI Harcharan Singh/PW-6, ASI Ajmer/PW-9, Ct. Atul,
Ct. Neeraj and himself. Hence as regards the alleged recovery of
fake currency notes, the case of the prosecution solely rests upon
the testimony of police officials who had intercepted appellants and
deposed about the recovery of fake currency notes from them.
11. PW-3/Ct Kaushal deposed as under:
"On 05.08.2010, I was posted at SIT, Crime Branch.
On that day, I joined investigation of the present case
with SI Sharat Kohli. Raiding party was formed to
apprehend the suppliers of fake currency notes.
Raiding party was comprising ASI Harcharan, ASI
Ajmer, Ct. Atul. Ct. Neeraj, Ct. Suresh, myself, HC
Kanwar and myself with informer. We all had left in
two private vehicles at 01:15p.m. from the office of SIT
and reached at T-point, Rohini, Near CNG Petrol
Pump, Sector-11 at 01:30 p.m. SI Sharat Kohli was
leading our raiding party. He had instructed ASI
Harcharan to become decoy customer and informer
was directed to remain with him. They were sent with
the instructions to fix the deal with accused and they
were deputed near CNG Petrol Pump, Sector-11,
CRL.A.825/2017,849/2017,816/2017 Page 8 of 23
Rohini and remaining members of the raiding party
took their position there.
At 2 p.m., from the side of Rithala Metro Station, one
person came from Rithala Metro Station and stopped
near decoy customer ASI Harcharan and after
conversing with them, he left from there on the same
way from where he had come....... ASI Harcharan was
given Rs.1,05,000 for the deal and he was instructed to
reach at the fixed place for deal and to make signal by
waiving hand on his head. Secret informer was also
with him at that time.........
ASI Harcharan was instructed to fix deal for genuine
Rs.1,05,000/- in exchange of Rs.2,10,000/- fake
currency notes....At 5:15p.m.,accused Ram Prasad
present in court, correctly identified, again came on
same motorcycle No.DL11SA4731 Bajaj, black colour,
and he had removed his helmet and started conversing
with ASI Harcharan who was with informer at that
time..... Accused Ram Prasad was apprehended at
05:20 PM and after that, informer had left the
spot.....All the notes in all bundles were apparently
fake. All the four bundles were kept in transparent
polythene sheet and with the help of doctor tape,
pullanda was prepared and it was sealed with seal of
SK. Seal after use was handed over to ASI Harcharan
Singh. SI Sharat Kohli prepared rukka. Rukka is
already Ex.PW4/C and handed over to me for being
taken to PS Crime Branch Nehru Place, for
registration of FIR. I left the spot at 8:15 PM with the
rukka and reached at PS Crime Branch at about 9.15
PM and handed over the rukka to the DO and got the
FIR No.117/10 registered. I left the PS Crime Branch,
Nehru Place with the copy of the FIR and reached at
the office at SIT, crime Branch, sector-18, Rohini at
about 12 midnight. I handed over copy of FIR and
rukka to inspt. Rajesh Sharma for the further
investigation of the case."
CRL.A.825/2017,849/2017,816/2017 Page 9 of 23
12. PW-4/SI Sharad Kohli, deposed on similar lines and further
stated that:-
"On 06.08.2010, I had accompanied the raiding team
to Mathura with accused Ram Prasad. Insp. Rajesh
was leading the team and all aforesaid raiding party
members except informer were also wits us. At about
8.30 A.M., we had made arrival entry at PS Sadar at
Mathura, U.P......SO, SI Sanjay Kumar Jaiswal of PS
Sadar was also informed as per disclosure statement
of accused Ram Prasad that for that day, accused
Ram Prasad had to take Rs.3 lacs fake currency notes
from some Vikas Chaudhary between 9-10 A.M. at
Cant area, Sadar, Mathura. He also joined the raiding
party. When we were going in the cant area of PS
Sadar, one person aged about 40 years (He is accused
in this case and not present today for identification. I
can identify said accused Vikas Chaudhary). At the
instance of accused Ram Prasad, accused Vikas
Chaudhary was apprehended. Insp. Rajesh had taken
the search of Vikas Chaudhary from the left dub of his
pant one heavy transparent polythene was found
recovered.....Total fake currency recovered was
Rs.2,99,000/-/......Accused Vikas Chaudhary was
arrested....
On the same day accused Ram Prasad and Vikas
Chaudhary were taken on 10-12 days PC remand.
Supplementary disclosure statement of accused Vikas
Chaudhary was recorded and next day i.e. on 07-8-10
accused led the police party to a mandir near red
Fort, Lajpat Rai Market. There on the road one Swift
Dzire car No. HR-99FPT3741, colour white was
parked. Accused, Kripa Shankar, present in court,
correctly identified was standing near that car and
was carrying polythene in his left hand. At 3.20 PM
accused Kripa Shankar was apprehended at the
instance of accused Vikas Chaudhary. Search of the
polythene carried by accused Kripa Shankar was
CRL.A.825/2017,849/2017,816/2017 Page 10 of 23
conducted by the IO Inpt. Rajesh and that polythene
was found containing total Rs.3 lacs fake currency
notes of Rs.500/- each denomination.................... "
13. PW-6/ASI Harcharan Singh, PW-7/Inspector Rajesh Sharma
and PW-9/ASI Ajmer Singh also made analogous depositions,
stating the entire chain of facts regarding the constitution of the
raiding committee; recording of information in DD vide DD No.12
dated 05.08.2010; arrest of accused/appellant Ram Prasad;
recovery of fake currency notes from his possession; subsequent
arrest of the other two accused/appellants i.e. Vikas Chaudhary and
Kripa Shankar Sharma and alleged recovery of fake currency notes
from their possession.
14. Upon a careful scrutiny of the testimony of the prosecution
witnesses, as regards the recovery of fake Indian currency notes
from the possession of appellants, I do not see any reason to
disbelieve the same as their testimonies well corroborate with each
other and clearly point towards the involvement of the present
appellants in the commission of the alleged crime. All the
witnesses have materially supported the case of the prosecution.
Non-Joining of Independent Witness & Material Contradictions
15. First ground raised by the learned counsel for the appellant is that
the prosecution has neither cited secret informer as a witness nor
examined any public witness, despite the alleged site of recovery
being a crowded place. Further the learned counsel for the
appellant has also pressed upon material contradictions and
CRL.A.825/2017,849/2017,816/2017 Page 11 of 23
infirmities in the testimonies of the prosecution witnesses, to
question the credibility of the case of the prosecution.
16. It is not disputed that the recovery has been effected on the basis of
the secret information. Appellant Kripa Shankar was apprehended
in the market, a public place. Appellant Vikas Chaudhary was also
apprehended from a residential locality. So, the presence of the
public witnesses cannot be disputed.
17. Regarding non-joining of any independent witness at the time of
raid, PW-4 SI/Sharad Kohli during his Examination-in-Chief had
categorically stated as under:-
"I asked 10-15 public persons after briefing them
about the information and deal but no one agreed to
join the proceedings and left the spot without
disclosing their names and identification.
xxxx
Public persons were summoned to witness the
personal search and disclosure statement but none
joined.
xxxx
It is correct that Lajat Rai Market is a thickly
populated. IO Inspector Rajesh asked to join the
investigation 8-10 people but none of them agreed."
Similarly PW-6/ASI Harcharan Singh, who was a part of the
investigation team and present at the time the three appellants were
apprehended and fake currency notes were recovered from them,
deposed on similar lines which is stated as under:-
"SI Sharad Kohli asked 10-15 public persons after
briefing them about the information and deal but no
one agreed to join the proceedings and left the spot
without disclosing their names and identification.
CRL.A.825/2017,849/2017,816/2017 Page 12 of 23
xxxx
When I was made a decoy customer nobody had taken
my search. There were 8-9 persons present at the spot
of CNG pump, sector-11 and the IO asked to join
them.
xxxx
IO had asked public persons to join investigation at
CNG Pump station but they refused to join the same
and left. 10-11 people joined investigation at Sector
11 T Point. Again said 10-11 people were asked to
join the investigation but they left without disclosing
their names and addresses. IO had not given any
notice to those public persons.
xxxx
At T point IO asked 10-11 persons to join
investigation but none agreed. I cannot tell their
names as they left without disclosing their names."
Further, during his cross examination PW-7/Inspector Rajesh
Sharma also stated that "It is wrong to suggest that no public
person were asked to join the investigation as no recovery was
made from accused "
18. Therefore, the investigating team had made all possible efforts to
associate independent witness. It is well settled principle of law
that mere non joining of the independent witnesses itself is no
ground to discard the prosecution version. The appellants Kripa
Shankar Sharma and Vikas Chaudhary have not made any specific
allegations against the Investigating Officer or the other
prosecution witnesses that they had any motive for the false
implication of the appellant or they were having any ill-will against
them. In the case of Appa Bai and another v. State of Gujarat,
reported in AIR 1988 Supreme Court 696, the Supreme Court has
CRL.A.825/2017,849/2017,816/2017 Page 13 of 23
observed that the prosecution story cannot be thrown out on the
ground that an independent witness has not been examined. The
Hon'ble Apex Court has further observed that the civilized people,
are generally insensitive when a crime is committed even in their
presence and they withdraw from the victims side. They keep
themselves away from the Courts unless it is inevitable.
19. Keeping in view the principles laid down by the Apex Court it
cannot be disputed that the general public is very much reluctant to
get dragged in police and criminal case because of long drawn
trials and needless harassment. Mere fact of non-association of
secret informer or other independent persons as a witness at the
time of recording the disclosure statement of the appellants and
effecting the recovery, itself is no ground to render the testimonies
of the official witnesses unworthy of credence and to create any
dent in the prosecution case. Hence, no adverse inference on
account of non-joining of public witnesses in such raids can be
drawn.
20. Further the ground raised by the learned counsel for the appellant
that there are material contradictions in the statement of the
prosecution witnesses also holds no ground as in such a detailed
exercise it is not necessary for each witness to observe each and
every fact. With the passage of time certain facts do skip while
deposing as memory fades and nobody is expected to narrate the
version in a parrot like version. Minor contradictions are bound to
appear in the statements of truthful witnesses as the sense of
observation differs from person to person.
CRL.A.825/2017,849/2017,816/2017 Page 14 of 23
21. In Narayan Chetanram Chaudhary & Anr. vs. State of
Maharashtra reported in AIR 2000 SC 3352 the Apex Court
reiterated the law laid down in its previous judgements and
observed as under:-
"There are bound to be some discrepancies between
the narrations of different witnesses when they speak
on details, and unless the contradictions are of a
material dimension, the same should not be used to
jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical niceties
cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason
therefore should not render the evidence of eye-
witnesses unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable evidence....
The Court shall have to bear in mind that different
witnesses react differently under different situations:
whereas some become speechless, some start wailing
while some others run away from the scene and yet
there are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and to
discard a piece of evidence on the ground of his
reaction not failing within a set pattern is
unproductive and a pedantic exercise."
22. Therefore, only such omissions which amount to contradictions in
material particulars can be relied upon to discredit the testimony of
the witnesses. The omission in the police statement by itself would
not necessarily render the testimony of witness unreliable. The
prosecution case becomes doubtful only when the version given by
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the witness in the Court is different in material particulars from that
disclosed in his earlier statements, and not otherwise.
CFSL Form
23. The next ground raised by the learned counsel for the appellant is
that the prosecution has failed to prove the alleged recovery of fake
Indian currency notes from the possession of the appellant as no
CFSL form was filled up nor the same was deposited alongwith the
case property in the Malkhana.
24. It is normal procedure that when the incriminating articles are
seized and are required to be sent to the Central Forensic Science
Laboratory, those articles are immediately sealed and deposited in
the Malkhana at the police station before they are sent to the
Laboratory. Contemporaneously with seizure and sealing of such
articles, impression of seal used on the seal is embossed on the
CFSL form in order to rule out any possibility of tampering of
seals on sealed packets after seizure anywhere or in transit till
receipt in laboratory.
25. In the absence of the CFSL form, the burden of proof to show that
the sample was not tampered with lies heavily on the prosecution,
which must establish beyond shadow of doubt that at no stage of
the transfer of the sample from one hand to other, was there any
possibility of the same having been tampered with. In the present
case, PW-4/SI Sharad Kohli after sealing the contraband
(recovered from appellant Ram Prasad) with the seal of SK, seized
the same vide seizure memo Ex.PW4/D in the first instance and
handed it over to Inspector Rajesh/PW-7. Contraband recovered
CRL.A.825/2017,849/2017,816/2017 Page 16 of 23
from appellants Vikas Chaudhary and Kripa Shankar were seized
vide memo Ex.PW6/E and Ex.PW6/J respectively, by Inspector
Rajesh Sharma/PW7 and sealed with the seal of RS. Inspector
Rajesh Sharma/PW7 has deposed on similar lines during his
Examination-In-Chief and further stated that the case property was
thereafter deposited with the MHC(M) PS Nehru place by him.
Both PW-4 and PW-7 have categorically stated that the seal after
use was handed over to ASI Harcharan Singh/PW-6 who has also
deposed the same.
26. Further PW-1/Ct. Suresh deposed that "on 09.09.2010 I was
deputed to go to Nasik for depositing of case property with Nasik
Press. I had taken three pullandas. One pullanda was having seal
of SK and two pullandas were having seal of RS. These were taken
vide RC No. 335/21/10. As long as pullandas remained with me,
there was no tampering with the same by anyone and I deposited
the sealed pullandas with Nasik Press and acknowledgement given
by Nasik Press was brought to Delhi and handed over to
MHC(M)."
PW-8/Sh. K.A. Antony Asst. Works Manager, Currency Note
Press, Nashik, Maharashtra deposed that he examined the
material received in this case in sealed condition.
27. Having therefore analyzed the material on record, I am of the view
that the omission to send the CFSL form along with sample for
analysis to the laboratory is well justified from the testimony of the
prosecution witnesses which corroborates each other and further
does not make the identity of the recovered case property doubtful.
CRL.A.825/2017,849/2017,816/2017 Page 17 of 23
Evidence on record points to the fact that no tampering took place
when the sample was being handled from person to person. Further
nothing has been brought on record by the appellants to establish
the contrary. Hence tampering with the sample is ruled out and
accordingly the ground raised by the counsel for the appellant
looses significance.
FIR No./Private Vehicle/Non-Examination of Malkhana
Moharer
28. Learned counsel for the appellant has also urged on certain
omissions on the part of the prosecution. It has been contended that
the FIR number has been mentioned on the seizure memo in the
same handwriting and in same flow, although at that time rukka
was not even sent to the police station for registration of the case;
that the official vehicle was not used by the raiding team; and that
the prosecution has not examined the Moharer of the Malkhana in
this case.
29. The lacunae on the part of the prosecution, as pointed out by the
counsel for the appellant, is not such that may be fatal to the case
of the prosecution. Hence in such circumstances, benefit of doubt
cannot be given to the appellants.
30. In the case of Sunil Kundu v State of Jharkhand reported in
(2013) 4 SCC 422 the Apex Court observed that:
"It is true that acquitting the accused merely on the
ground of lapses or irregularities in the investigation
of a case would amount to putting premium on the
depreciable conduct of an incompetent investigating
agency at the cost of the victims which may lead to
encouraging perpetrators of crimes. This Court has
CRL.A.825/2017,849/2017,816/2017 Page 18 of 23
laid down that the lapses or irregularities in the
investigation could be ignored subject to a rider. They
can be ignored only if despite their existence, the
evidence on record bears out the case of the
prosecution and the evidence is of sterling quality. If
the lapses or irregularities do not go to the root of the
matter, if they do not dislodge the substratum of the
prosecution case, they can be ignored."
In the present case, the prosecution has been able to complete the
chain of circumstances which can only lead to the conclusion of
guilt of the appellants.
Credibility of the Depositions made by Defence Witnesses
31. Learned Counsel for the appellant contended that equal weightage
is to be given to the testimony of the defence witnesses as that of
the witnesses of the prosecution but the learned Trial judge has
discarded their testimonies without giving any valid reasons. The
witnesses (DW-4 and DW-5) so examined by the appellant/Kripa
Shankar in the present case have deposed that the appellant was
lifted from his residence and not in the manner as alleged by the
prosecution.
32. Although on legal principle there cannot be any dispute in this
regard, however in view of the facts and circumstances of the
present case and other incriminating evidence placed on record, the
argument raised by learned counsel for the appellant is worth
outright rejection. The defence witnesses have failed to discredit or
shatter the case of the prosecution. We also cannot loose sight of
the fact that DW-5 is the son of the accused/appellant Kripa
CRL.A.825/2017,849/2017,816/2017 Page 19 of 23
Shankar who is an interested witness whose prime interest would
be to save his father.
33. From the material available on record, it is established beyond
shadow of reasonable doubt that total Rs. 3 Lakhs of fake Indian
currency notes of denomination of Rs. 500/- each were recovered
from the personal search of appellant Kripa Shankar. A total of 598
fake Indian currency notes of the denomination of Rs. 500/- each
were recovered from the appellant Vikas Chaudhary. Further
Rs.1,10,1000/- fake currency notes were also recovered from the
appellant Ram Prasad. All these currency notes were sent to Nashik
Press, Maharashtra for examination. The report of the FSL is
Ex.PW-7/B, which shows that all these currency notes were the
counterfeit currency notes.
34. The defence raised by the appellants is similar and the evidence so
adduced appears to be an afterthought. There is no material on
record to establish that the Investigating Officer was having any
animosity, ill will or motive for the false implication of the
appellants. Huge number of fake currency notes have been
recovered in this case. It is not believable that the Investigating
Officer could have planted these articles from his own sources.
Thus, the defence raised by the appellants does not inspire
confidence.
Conscious Possession under Section 489C IPC
35. I do not find any substance in the contentions raised by learned
counsel for the appellant that the ingredients of the offence
punishable under Section 489C IPC are not established.
CRL.A.825/2017,849/2017,816/2017 Page 20 of 23
36. In order to bring the case within the ambit of Section 489C IPC, it
has to be proved that the accused kept the counterfeit currency
notes in their possession knowingly or having reason to believe the
same to be counterfeit and intending to use the same as genuine. It
is established from the evidence on record that appellant Kripa
Shankar was apprehended in the market having in his possession
50 fake Indian currency notes of the denomination of Rs 1000/-
each and 500 fake Indian currency notes of the denomination of Rs
500/- each. Similarly huge number of fake currency notes were
recovered from the other two appellants. In their statements under
Section 313 Cr.P.C, the appellants have simply pleaded their false
implication. They have neither taken the defence that they had no
knowledge of the currency notes in their possession being fake nor
have they explained as to how these currency notes came into their
possession. In such cases as it is difficult to adduce direct evidence
to establish the knowledge of the appellant, the Court can take into
consideration the attending circumstances in order to arrive at the
conclusion. The evidence of the prosecution is to the effect that at
the time when appellant Vikas Chaudhary was apprehended, he
was found in possession of a total of Rs.2,99,000/- fake Indian
currency notes and on his disclosure statement, appellant Kripa
Shankar was apprehended from a market which led to the recovery
of another Rs 3 Lakhs fake Indian currency notes. If there had
been any valid explanation with the appellants that they have come
in possession of these currency notes, which are found to be fake
innocently, they had all the liberty to disclose the same. All the
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appellants merely pleaded their false implication. Mere possession,
in the absence of explanation in that regard, would be sufficient to
establish that the possession of these fake currency notes were
consciously with the appellants.
37. For the foregoing reasons, this Court finds no merit in the
submissions made by the appellant, to the findings on facts
returned by the Trial Court in the impugned judgment. As per the
facts and circumstances of the present case, there is a direct link of
the appellants/accused with the commission of the crime. Such
conclusion can well be established by the statement of the
witnesses, the recoveries made and other evidence placed on
record. Therefore, conviction based upon fair appreciation of entire
evidence deserves no intervention. From the material placed on
record, it stands established by the prosecution that the appellants
are guilty of having committed the offence charged for.
Overturning of a well considered and well analyzed judgment of
the Trial Court, when the case against the appellants otherwise
stood established beyond reasonable doubt, is not called for.
38. Therefore, on no count does the impugned judgment call for any
interference. The Trial Court has fully appreciated the evidence
placed on record by the parties. Findings of conviction cannot be
said to be erroneous or perverse.
39. Since the punishment is in accord with the punishment prescribed
for the offence under Section 489C IPC, this Court does not see
any reason to interfere with the order on sentence passed by the
Trial Court.
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40. Under the circumstances, the appeal being bereft of merit is
dismissed.
41. Records of the Court below be sent back forthwith along with the
copy of the order.
42. Copy of this order be sent to the concerned Jail Superintendent for
information.
SANGITA DHINGRA SEHGAL, J.
NOVEMBER 13, 2017 //gr CRL.A.825/2017,849/2017,816/2017 Page 23 of 23