Delhi District Court
State vs . Zahurullah & Ors. on 14 October, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST), SAKET
COURTS:NEW DELHI
State Vs. Zahurullah & Ors.
FIR No. 1002/98
U/s 259/34 IPC
P.S. Sriniwaspuri
J U D G M E N T
Serial No. of the Case : 164/2A/14
Unique Identification No. : 02406R0555902003
Date of Institution : 25.04.2003
Date on which case reserved for
judgment : 06.09.2014
Date of judgment : 14.10.2014
Name of the complainant : SI Vijay Singh
Date of the commission of offence : 14.10.1998
FIR No. 1002/98
P.S. Sriniwaspuri Page No.1 of 21
Name of accused : (i) Murari Lal Goel
s/o Late Shri Ayodhya
Prasad
r/o H. No.156, Ramsadan,
K. P. Road, Bulandsehar,
U.P.
(Since deceased)
(ii) Zahurullah
s/o Mohd. Siddiqui
r/o H. No.157, Siwai Mandi,
Allahabad, UP.
Offence complained of : U/s 259/34 IPC
Offence charged of : U/s 259/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : (i) Accused Zahurullah is
acquitted.
(ii) Accused Murari Lal
expired.
Date of Institution : 25.04.2003
Date on which case reserved
for judgment : 06.09.2014
Date of judgment : 14.10.2014
FIR No. 1002/98
P.S. Sriniwaspuri Page No.2 of 21
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint SI Vijay Singh wherein it is alleged that on 14.10.1998 while he along with Ct. Hari Krishan of P. P. Okhla, Ct. Subhash Rana and Ct. Pramod of Special Staff (South) were on patrolling duty at Jamia College in the night at around 10:20PM, one secret informer informed them that one person aged about 65 years who wears spectacles and another person aged about 30 years having small haircut and well built who was standing at Holy Family Bus Stand are having in their possession forged papers and stamp tickets and have come from U.P. to Delhi for selling them and thereafter upon receiving the same information, prepared a raiding party and tried to stop 45 public persons but they all refused to join the investigation and without telling their names and addresses left the spot. Thereafter, he without wasting time and after getting signal from the secret informer apprehended both the accused, and thereafter accused Zahirullah who was having one red colour polythene and upon checking were found containing some stamp papers of denomination of Rs.100/ and Rs.50/ having value of Rs.24,600/ and stamp tickets of different denominations FIR No. 1002/98 P.S. Sriniwaspuri Page No.3 of 21 having value of Rs.25,900/ were recovered. Thereafter, the case property was sealed with seal of VSG and were taken into possession. Accused Murari Lal Goel who was also carrying polythene bag of blue and white colour upon which Silko Tailors and clothers were checked and upon checking it was found that it contained 260 stamp papers value of Rs.3,30,200/ & having 81 stamp papers of denomination of Rs.200/, 26 stamp papers of denomination of Rs.500/ and 116 stamp papers of denomination of Rs.1000/ and about 37 stamp papers for denomination of Rs.5000/ were recovered from his possession, which were found to be forged and fabricated and upon asking the accused persons could not provide any license in respect to the same and could not give any satisfactory reply, therefore, entire case property were sealed in another pullanda of white colour with the seal of VSG. Thereafter, the seal was handed over to Ct. Subhash Rana. Thereafter, the present complaint was got registered through Ct. Hari Krishan.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
FIR No. 1002/98 P.S. Sriniwaspuri Page No.4 of 21
3. On the basis of material placed on record, charge was framed against the accused Zahirullah under Section 259/34 IPC to which he pleaded not guilty and claimed trial.
During the pendency of this case, accused Murari Lal Goel had expired and proceedings against him was abated vide order dated 26.08.2004.
The matter was fixed for prosecution evidence. PE was closed on 12.02.2013 and subsequently statement of accused under Section 313 Cr.P.C was recorded on 07.10.2013.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as far as six witnesses in order to prove its case.
PW1 Ct. Mahesh deposed that on 01.09.2002 while he was posted at P.P. Jamia Nagar of P.S. N. F. C. he was handed over the exhibit of the present case in sealed condition by the IO and thereafter it was sent by him to India Security Press, Nasik Road, Nasik, Maharashtra for deposition. Thereafter, he deposited the same and returned to Delhi and handed over the copy of R/C No.170/21 of the aforesaid exhibits to MHC(M) P.S. Sriniwaspuri. FIR No. 1002/98 P.S. Sriniwaspuri Page No.5 of 21
During the crossexamination, PW1 stated, he had gone to Nasik press alone for depositing the exhibits and he remained there only for one day but he did not remember the particulars of the seal.
PW2 Inspector Vijay Singh deposed that on 14.10.1998 he was posted as IC PPOkhla Head and he along with Ct. Pramod, Ct. Hari Kishan and Ct. Subhash Rana were on patrolling duty and at about 10:20PM while they were present in the area of Jamia College met a secret informer who informed that two persons are standing at Holy Family Bus Stand and were in possession of fake stamp and stamp papers. The secret informer also informed them that one of persons standing at the bus stand was middle age wearing spectacles and other person was a young man who had come from Uttar Pradesh to sell those stamp papers and if raided could be arrested with those fake stamp papers. Thereafter PW2 informed the senior officers and formed a raiding party with police personnel and asked some passers by to join the investigation but they refused and therefore at around 10:30PM in the night all of them reached at the Bus Stand and at the instance of secret informer apprehended both the accused persons. Thereafter firstly PW2 conducted the personal search of accused Zehurullah who was having polythene bag of yellow colour in his right hand and upon checking 246 fake stamp papers each having a value of Rs.100/ and a bag containing 4990 FIR No. 1002/98 P.S. Sriniwaspuri Page No.6 of 21 fake stamp tickets and 4800 stamps in the denomination of Rs.5/ each and remaining 190 stamp in the denomination of Rs.10/ each were recovered. Upon seeing the same appeared to be fake by quality of paper and the ink used upon it, thereafter PW2 had put all the stamps and stamp papers in the polybag and sealed it with seal of VSG vide memo Ex.PW2/A. Thereafter, accused Murari Lal Goel was also searched who was carrying a white and navy blue colour bag which was checked and was found containing 260 stamp papers having cost of Rs.3,30,200/ and 81 stamp papers which costed Rs.200 each and another 26 stamp papers of the denomination of Rs. 500/ each, 116 stamp papers of denomination of Rs.1000/ each and 37 stamp papers of denomination of Rs.5000/ each. Silco Tailors and clothers were mentioned on the polybag of accused Murari Lal and on seeing the quality of stamp papers and ink used on it. Thereafter, he kept all the stamp and stamp papers in polybag and sealed the same with seal of VSG vide memo Ex.PW2/B. Thereafter, PW2 prepared rukka Ex.PW2/C and sent Ct. Hari Krishan for registration of FIR. In the meantime, PW2 prepared site plan Ex.PW2/D. Thereafter, Ct. Hari Krishan returned with copy of FIR and PW2 interrogated the accused persons in detail and arrested them vide memos Ex.PW2/E and Ex.PW2/F and their personal search were also conducted vide memo Ex.PW2/G & Ex.PW2/H. Thereafter, disclosure statements of accused FIR No. 1002/98 P.S. Sriniwaspuri Page No.7 of 21 persons were recorded. The seized documents were deposited in malkhana and articles recovered in personal search were also deposited. JC remand of both the accused were sought. Case property are Ex.P1 to P3 (colly).
During the crossexamination, PW2 stated, he received the information at about 10:20PM near Jamia College and he had not recorded that information in writing. He prepared the raiding party at the spot and during patrolling he was having IO kit with him. Further, it was correct that the place from where the accused persons were apprehended is the same and distance between them is half kilometre and also that the place from where the accused persons were arrested is a busy place. He stated that bus stand of Holy Family is at distance of 10 metre from the main gate of Holy Family Hospital and also that in the site plan the bus stop is shown in front of the hospital. At that time hospital was opened however no public person was at the bus stop and there is no commercial area or market near bus stop of Holy Family Hospital. PW2 further stated that it was correct that Julaina Market is more than 100 metre from the bus stop of the Holy Family Hospital i.e. after crossing the red light. No public persons were joined the raiding party as police persons were present and that the accused persons were arrested at around 10:30PM and also that from the accused persons no ticket of bus or train was recovered. PW2 also stated that he did not remember what clothes FIR No. 1002/98 P.S. Sriniwaspuri Page No.8 of 21 or of what colour accused Zahirullah was wearing at the time of the incident since the matter was 1314 years old. PW2 further stated that he remained at the spot for about 45 hours along with other police officers and rukka was sent at about 11:50PM and Ct. Hari Krishan returned back at 01:00AM in the night and that the recovery was effected prior to sending the rukka. He further admitted that the recovery memo bears FIR Number which was put by him later on. He further stated that accused was arrested after the copy of FIR was received by him and he deposited the case property in malkhana in the night of 14/15.10.1998. He did not know the name of MHC(R) and had not made any entry or signed in the malkhana register. He further admitted that he had not offered himself for personal search before searching the accused and had handed over the seal to Ct. Subhash Rana. He admitted that he was the complainant in the present FIR and was also the investigating officer in the same FIR.
PW3 HC Hari Krishan deposed that on 14.10.1998 he was posted at P.S. Sriniwas Puri and on that day he along with Ct. Pramod, Ct. Subhash Rana and SI Vijay Singh was on patrolling duty. Thereafter PW3 had deposed on the lines of PW2.
During crossexamination, PW3 stated, they had left the police station at about 10:00PM on 14.10.1998 and he was driving the FIR No. 1002/98 P.S. Sriniwaspuri Page No.9 of 21 motorcycle and SI Vijay was his pillion rider but he was not aware if any departure entry was made at the police station regarding leaving for patrolling duty. Also that he was beat constable for Abul Fazal area and SI Vijay was chowki Incharge of the area and secret informer had met on Jamia Road near Batla House and that they were on motorcycle at that time. The area is surrounded by Muslim community and at about 11:00PM to 12 midnight number of people had reduced on the road and also that otherwise the area is well lit. Thereafter they parked their motorcycle near the shop of kabari and it was correct that if the motorcycle or car is parked in Batla House area then the traffic moment is stalled and therefore it took them about 10 minutes to reach the Holy Family Hospital after parking the motorcycle at Batla House. He has also stated that there was pedestrian movement on the road and even at Batla House and near Holy Family Hospital and that there were other persons also standing at the bus stop awaiting for the bus. He further stated that he and SI Vijay were in uniform and other staff were in civil and other two police had also on motorcycle and they parked motorcycle at Batla House and that the accused were holding a polythene bag and the colour of the same he did not remember. He also stated that they remained at the spot for about 10 minutes and the IO was SI Vijay Singh who had sent the rukka himself and even thereafter he continued to be the IO of the case. He further FIR No. 1002/98 P.S. Sriniwaspuri Page No.10 of 21 stated that he reached the police station at about 10:50 PM with rukka and the police team reached the police station after about 3045 minutes of his reaching the police station i.e. at about 11:45PM. He further stated that he was not cited as a witness on seizure memo, arrest memo and recovery memo. He further stated that pullanda on the seizure memo were prepared prior to the preparation of rukka by the IO SI Vijay Singh in his own handwriting and that the seizure memo was prepared in his presence but he could not tell if any addition or deletion was made on the seizure memo after the same was prepared and he could not tell the place where the accused persons were kept after arrest. PW3 also stated that he had handed over the rukka and copy of FIR to the IO after getting the same registered in the police station and Ct. Subhash and Ct. Pramod were posted as Special staff who were also on patrolling duty in the area and met them after the secret informer met them. He further stated that he could not tell if the IO had reduced the secret information into writing or if the same was sent to senior officers and that arrest memo was prepared in his presence but he was not cited as a witness by the IO and all documents were prepared by IO SI Vijay in his own handwriting and the IO was having IO kit having necessary item but he could not tell whether the IO was carrying the same in his hand or shoulder. The pullanda and other seized articles were not deposited in the malkhana by the FIR No. 1002/98 P.S. Sriniwaspuri Page No.11 of 21 IO in his presence and he could not tell if the IO informed the relative of the accused about arrest.
PW4 HC Pramod deposed that on 14.10.1998 he was posted as Special staff and on that day he along with Ct. Subhash Rana were on special patrolling duty and were present at near Jamia College where SI Vijay Kumar and Ct. Hari Krishan met them and in the meantime one secret informer also met them and informed about the present incident.
Thereafter PW4 deposed on the lines of PW2 & PW3 and the same is not repeated for the sake of brevity.
During his crossexamination, PW4 stated, he along with Ct. Subhash had started on his private motorcycle at about 06:00PM from special staff office and departure entry for patrolling was recorded by the duty officer and same was for entire South District and SI Vijay met them at about 10:00PM Near Jamia College while they were on foot and thereafter they parked their vehicle and started patrolling on foot. Thereafter, a secret informer met them after 1015 minutes at Jamia College Gate, but he did not remember as to how far was Batla House from the place where the secret informer met them but Holy Family Hospital was about 500 metre from Jamia Gate. He further stated that he proceeded toward Holy Family hospital and followed the secret informer and he did not remember where the motorcycle FIR No. 1002/98 P.S. Sriniwaspuri Page No.12 of 21 was parked by him. The accused persons were found standing toward the bus stand towards Holy Family Hospital gate and there were 810 more persons were present at the bus stop at that time. He further stated that IO SI Vijay Singh had prepared all documents in his own handwriting and all the documents were prepared at the Bus Stand and they all remained at the spot for about two and half hours and that he along with Ct. Subhash had returned to the Special Staff Office from the spot. Also all the recoveries of stamp papers and stamp were counted by SI Vijay Singh which took him about 1520 minutes and that the polythene was of red and yellow colour which was carried about accused Zahirullah and recovery memo was prepared by IO in his presence he had signed the same only after going through it and no addition or deletion was made after the same was prepared. He further stated that rukka was sent after about one and half hour of apprehending the accused and no document was prepared before sending of the rukka. After sending the rukka all the documents were prepared by SI Vijay and it was correct that he had not signed Ex.PW2/H & Ex.PW2/G. He also stated that they were in civil uniform and he could not say anything about arrest memo and personal search memo as the same were not signed by him. Ct. Hari Krishan returned to spot with copy of FIR and rukka after about an hour and during this time Ct. Hari Krishan left the spot. IO had prepared the seizure FIR No. 1002/98 P.S. Sriniwaspuri Page No.13 of 21 memo of recovery, arrest memo and personal search memo etc. The accused was apprehended on the pointing out of secret informer about 1020 minutes of receiving the secret information and that there was pedestrian movement on the road at that time and that IO had requested some passerby to join investigation but all of them refused and no notice in writing was given to them.
PW5 ASI Sher Singh deposed that on 14/15.10.1998 he was posted as duty officer and he recorded the FIR on the rukka brought by Ct. Haris Krishan. He produced the original FIR Ex.PW5/A and rukka is Ex.PW5/B. During crossexamination, PW5 stated, it took about 2025 minutes in registration of FIR and he did not know if any accused or member of raiding party had come to the police station during his duty hours.
PW6 Ct. Subhash Rana deposed that on 15.10.1998 he was posted at P.S. Sriniwaspuri in Special Staff and on that day he along with Si Vijay Singh, Ct. Pramod and Ct. Hari Krishan were on patrolling duty and that is at around 10:30PM at Zakir Nagar Road upon receiving secret information regarding two persons standing at Holy Family Hospital in possession of fake stamp papers. Accordingly, raiding party was constituted.
Thereafter the witness has deposed on the lines of PW3 & PW4 FIR No. 1002/98 P.S. Sriniwaspuri Page No.14 of 21 and the same is not repeated for the sake of brevity.
On asking leading question by Ld. APP for the State regarding the date of recovery the witness has stated it to be 15.10.1998 and has further deposed that due to lapse of time he did not remember the same correctly.
During his crossexamination, PW6 stated, he was posted as Special Staff for about one and half year before the present incident, also that all of them were patrolling on foot when they received the secret information and SI Vijay Singh and HC Hari Krishan were in Maruti800 car of SI Vijay Singh and that the secret informer gave the information to SI Vijay Singh near the boundary wall of Jamia Milia opposite the side of Escorts Hospital. He further stated that upon receiving the said information, they all five sat in Maruti800 car of SI Vijay and went to Holy Family Bus stop and the vehicle was driven by SI Vijay Singh and also that SI Vijay Singh and Ct. Hari Krishan were in uniform and he himself & Ct. Pramod were in civil dress. He further stated, that there were 57 more persons present at the but stop where they reached and they reached within 12 minutes after receiving the information and that SI Vijay Singh alone had made inquiries from the accused persons. He further stated that the polythene bag in the hand of accused Zahirullah was of red and yellow colour and was not having any print upon it and also FIR No. 1002/98 P.S. Sriniwaspuri Page No.15 of 21 the counting of stamp paper was done by SI Vijay in his presence. Ct. Pramod & Ct. Hari Krishan were also present at that time and they remained at the spot for about half an hour. He further stated that from the spot they all went to the police station along with accused except Ct. Hari Krishan and secret informer in the car of SI Vijay Singh. He further sated that they remained at the spot till 11:00PM and from the police station he and Ct. Pramod left after 1520 minutes and the writing work was done by SI Vijay Singh in his own handwriting at the spot only and he did not remember as to how the recovered stamp papers were sealed, whether the seal was affixed on the bag recovered from the accused or on the cloth piece. He further stated that he deposited the seal in malkhana which is handed over to him by the IO and that the document Ex.PW2/A i.e. the seizure memo of stamp papers and Ex.PW2/B the seizure memo of stamp papers and stamp tickets were prepared at the spot and the entire contents from top to bottom were written at the spot when he signed them and no addition or deletion was made on these documents after he had put signatures on the same at about 10:35PM.
Ct. Pramod had conducted the personal search of accused and the document Ex.PW2/E i.e the arrest memo of the accused was prepared at the spot and the contents of the same from top to bottom were written at the FIR No. 1002/98 P.S. Sriniwaspuri Page No.16 of 21 spot when he signed the same at 10:40PM. He further deposed that all the documents were prepared and signed by him within 1020 minutes of reaching the spot at Holy Family Hospital bus stop but he did not remember at what time he had reached P. P. Okhla after leaving P.S. Sriniwaspuri.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 259 IPC :
Having possession of counterfeit Government stamp-- Whoever has in his possession any stamp which he knows to be a counterfeit of any stamp issued by Government for purpose of revenue, intending to use, or dispose of the same as a genuine stamp or in order that it may be used as a genuine stamp, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.FIR No. 1002/98 P.S. Sriniwaspuri Page No.17 of 21
8. The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case beyond reasonable doubt. Ld. Counsel for accused has argued that the grave misconduct is evident from the fact that the complainant and IO i.e. SI Vijay Singh are the same which is beyond the settled proposition of law. He further argued that since the complainant and the investigating officer is the same, it castes a shadow on the genuineness of the investigation conducted by the IO and in fact, has led to the prejudice of the rights of the accused. Ld. Counsel has relied upon the judgment of Supreme Court titled as Bhagwan Singh Vs. State of Rajsthan, Crl. No.114 of 1971. He further argued that in the present matter the story of the prosecution is unbelievable as the prosecution witnesses have not corroborated with each other and all the witnesses examined by the prosecution during their crossexamination have given contradictory statements. He has further argued that in the present matter despite of the fact that the place of incident was a public place no public witness has been examined by the prosecution.
9. On the other hand, Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and FIR No. 1002/98 P.S. Sriniwaspuri Page No.18 of 21 all the witnesses have corroborated with each other and minor discrepancies in their version has no effect on the story of prosecution and cas of the prosecution has been proved beyond reasonable doubt and therefore, the accused is liable to be convicted for the offence U/s 259/34 IPC.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
11. In the present matter the prosecution has not proved its case beyond reasonable doubt since the fundamental right of accused of a fair investigation has been derailed from the beginning when the complainant and IO of the present matter was appointed the same. In the present matter, there are glaring contradictions in the testimonies of witnesses. All the witnesses have given completely different version in respect of their patrolling duty and further the IO in the present matter did not make any effort to join any public witness despite of the fact that the place of incident was a public place which is admitted fact by all the prosecution witnesses in their testimonies. The same casts a shadow on the story of the prosecution which FIR No. 1002/98 P.S. Sriniwaspuri Page No.19 of 21 is against the settled proposition of law.
Further in the present matter all the witnesses have given contradictory statements to the aspect of recovery of alleged fake stamps and stamp papers are concerned as the document Ex.PW2/A & Ex.PW2/B was allegedly prepared by the IO before sending the rukka and for registration of FIR but the case FIR number was written/filled subsequently which shows the tempering with the documents which again shows on the fairness of the IO while conducting the investigation.
12. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every FIR No. 1002/98 P.S. Sriniwaspuri Page No.20 of 21 reasonable doubt.
13. The failure on the part of the investigating agency to join public witnesses casts a doubt on the prosecution story. No plausible explanation is coming from the prosecution for non joining of independent witnesses. Reference may be made to the judgment titled as "Prem Singh v. State"
reported as 1996 CRI. L. J. 3604, "Pawan Kumar v. Delhi Admn."
reported as 1989 CRI. L. J. 127 (Delhi HC) and Nanak Chand v. State of Delhi reported as 1992 CRI. L. J. 55 (Delhi HC).
14. In view of above discussion, the accused Zahur Ullah is acquitted of the offence punishable U/s 259/34 IPC.
15. Case property be destroyed as per rules.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 14.10.2014 MM10 (SouthEast): Saket Courts:
New Delhi:14.10.2014
FIR No. 1002/98
P.S. Sriniwaspuri Page No.21 of 21