Delhi District Court
A Witness, Are Inconsequential. Our Own ... vs . on 20 May, 2008
S.C. No. 42/05/06 1
IN THE COURT OF SHRI H.S.SHARMA, ADDL.SESSIONS JUDGE, DELHI.
S.C. No. : 42/05/06
F.I.R. No. : 558/05
P.S. : Darya Ganj
STATE
VERSUS
ROSHAN ALI
S/o Peer Mohd.
R/o 6/90, Geeta Colony,
Delhi.
Permanent Resident of:
Village-Sheikhpur Bhuttani,
Distt. Jaunpur,
P.S. Sujan Ganj (U.P.)
Date of Institution : 11.07.2006
Date of receipt of this case in this Court : 11.07.2006
Date of Arguments : 19.05.2008
Date of Decision : 20.05.2008
JUDGMENT
The prosecution case in brief is that on 23.08.2005 Rajman (PW3), who used to work as a salesman at the DSIDC Liquor Shop, NS Marg, Darya Ganj had been approached by the accused with a currency note of Rs.500/-. He had asked Rajman (PW3) to supply him a bottle of liquor make Director S.C. No. 42/05/06 2 Special. The accused had handed over the currency note Ex.P-1 to Rajman. It was checked by Rajman (PW3). There were cross marks with red ink on this currency note. Rajman told the accused that it was a fake currency note. However, the accused insisted that it was genuine and he asked Rajman to supply the bottle. Rajman then showed the currency note Ex.P-1 to Constable Mukesh (PW2) who was on duty at that time near the shop. In the meantime SI Rajeshwar (PW5) also came there. He took the currency note Ex.P-1 and sealed it in an envelope Ex.P-2, with the seal of RC. He took it into the possession after preparing the memo Ex.PW2/B. The seal after use was handed over to Constable Mukesh (PW2). Statement Ex.PW2/A of Rajman was recorded. It was sent to the Police Station through Constable Mukesh for registration of a case where FIR, copy of which is Ex.PW2/D was registered. The accused was arrested. His personal search memo and arrest memo were prepared. His disclosure statement was recorded. The shop where he used to work was searched but nothing incriminating was found. The currency note was sent to Reserve Bank of India. Shri Devender (PW1), after checking the currency note opined, vide his report Ex.PW1/A that the currency note Ex.P-1 was not genuine. Accordingly, the currency note Ex.P-1 was sent to the Security Printing Press, Nasik. The report Ex.PW5/H shows that the currency S.C. No. 42/05/06 3 note was counterfeit. After completion of investigation, the accused was challaned.
2. Charge under Section 489-B IPC was framed against him on 27.07.2006. He pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution has examined 6 witnesses in all.
4. Devender (PW1) from Reserve Bank of India has proved the fact that the currency note IAC 352376 of Rs.500/- denomination (Ex.P-1) was not genuine. His report in this regard is Ex.PW1/A. He further deposed that the matter was referred to Printing Press Nasik, Bank Note Press Devas for expert opinion.
5. Constable Mukesh (PW2), Rajman (PW3) and SI Rajeshwar (PW5) have deposed the facts as mentioned in para 1 of the judgment. I am not reproducing their examination in chiefs.
S.C. No. 42/05/06 4
6. ASI Narayan Singh (PW4), who was the duty officer on 23.08.2005, had, on receipt of the Rukka Ex.PW2/A through Constable Mukesh Kumar, had registered the FIR no. 558/05. Its copy is Ex.PW2/B. On the Rukka he had made endorsement Ex.PW4/A. Vide DDR no. 30-A, copy of which is Ex.PW4/B, departure entry had been made by SI Rajeshwar (PW5).
7. Raj Kumar Jain (PW6) has deposed that he used to work as Manager in DSIDC. He had produced the attendance register of the salesmen. The photostat copies of the relevant pages of the register (collectively Ex.PW5/G) had been taken into possession by the police vide memo Ex.PW5/H. It was suggested to him that Ex.PW5/G is not the correct photostat copy of the original. It was also suggested to him that Rajman had never been their employee or that no register had been maintained. The witness had denied these suggestions.
8. After closure of the evidence of the prosecution the accused was examined under Section 313 Cr.P.C. He denied the prosecution evidence. His plea is as under :-
"I am innocent. SI Rajeshwar used to get clothes stitched from me. He had not paid the charges.S.C. No. 42/05/06 5
Since I was a worker at the shop, therefore, I could not afford to stitch more clothes of SI Rajeshwar without charging money. I had refused to stitch his clothes without payment of charges. It had enraged him. He got me falsely implicated in this case".
9. The accused has examined Rizwan Khan (DW1) to substantiate his defence. He has deposed that on 23.08.2005 at 7.30PM an SI had come to his shop. The accused was the head of the tailors, in that shop. That SI had gone to the accused to get the clothes of his wife stitched. The accused had told him that because of paucity of time he will not stitch the clothes. He (accused) further told him (SI) that he does not make payment of the charges. The SI had then taken away the accused with him. The accused had thereafter not come back till the time of closing of the shop.
10. I have heard the ld. Addl.P.P for the State and Ld. Counsel for the accused.
11. Ld. Counsel for the accused has pointed out a few contradictions in the statements of Constable Mukesh (PW2), Rajman (PW3) and SI Rajeshwar (PW5). It has been submitted that Constable Mukesh (PW2) in his statement has deposed that at about 8.40PM, SI Rajeshwar (PW5) had come while S.C. No. 42/05/06 6 patrolling the area. Rajman (PW3) has stated that the accused had come to him at about 8.00/8.15PM. SI Rajeshwar (PW5) has stated that Rajman (PW3) had met him at about 8.25PM. It has been submitted that the seal after use was entrusted to Constable Mukesh (PW2). The handing over of the seal was farce. In the report Ex.PW5/F, nothing is mentioned with regard to the seal impression. The report is by Assistant Works Manager, therefore, it was not the competent officer to give the report. Rajman (PW3) has categorically admitted that the currency note was sealed in the Police Station. No other person from the public was joined. Manager of Rajman (PW3) was not joined in the investigation. Devender Kumar (PW1) has not deposed that the currency note had again been sealed. All the arguments of the Ld. Counsel for the accused are devoid of merits.
12. It is now well settled that while deciding a case - be it civil or criminal - only those contradictions which go to the root of the case, are to be taken into account. Minor contradictions which do not affect the credibility of a witness, are inconsequential. Our own Hon'ble High Court in Mehmood Vs. State 1991 RLR 287, held that "Minor contradictions are bound to occur as human memory is likely to fade due to lapse of time. Description of occurrence S.C. No. 42/05/06 7 depends on power of observation, due to retention of power of reproduction. Ancillary matters unconnected with the case have no effect. Discrepancies which do not go to the route of the case, cannot be given weight or undue importance. These are bound to occur even in the statement of a truthful and honest witness. Discrepancies occur due to error of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. If they do not touch the core of the case, they be ignored".
13. Constable Mukesh (PW2), Rajman (PW3) and SI Rajeshwar (PW5) were not required to give the exact time of occurrence, the exact time of apprehension of the accused, the exact time of recovery of the currency note Ex.P-1. They were required to state the facts correctly which they had done. Now so far as the sealing or resealing of the currency note Ex.P-1 is concerned, the number of the currency note finds mention in the Rukka Ex.PW2/A, the FIR Ex.PW2/D and the recovery memo Ex.PW2/B. Therefore, the sealing and/or its resealing are inconsequential. The number of the currency note Ex.P-1 also finds mention in the report Ex.PW5/A which bears the signature of Assistant Works Manager, a Gazetted Officer-Class I. Section 292 Cr.P.C. makes such a report per se admissible.
S.C. No. 42/05/06 8
14. It is the quality of the evidence which is material and decisive. It is not the quantity thereof. In the present case Rajman (PW3) did not have any enmity with the accused. Efforts had been made to show that the police officials used to take eatables from M/s Negi Store where Rajman (PW3) used to work. The defence is not only far fetched but without basis. Rizwan Khan (DW1) in his statement did not name SI Rajeshwar (PW5). He simply stated that one SI had come to his shop on 23.08.2005 and had taken away the accused.
15. Rajman (PW3) is a material witness. He has stated the facts in a straight forward manner. Although he has been cross examined at length but no material has been brought on record to justify the rejection of his evidence. Merely because it was stated by him that currency note Ex.P-1 had been sealed in the Police Station does not mean that the case is false. Rather it shows that Rajman (PW3) is a truthful witness. It is now well settled that where there is no previous enmity, chances of false implication are ruled out altogether. Reliance can be placed on Kundalik vs. State 1980 SCC 900. S.C. No. 42/05/06 9
16. An effort had been made by the accused to deny each and everything. In fact, it was suggested to Rajman (PW3) that he had never worked at the DSIDC liquor vend. It was also suggested to Rajkumar Jain (PW6) that the attendance register Ex.PW5/G is a forged one. In a way, the accused wants this Court to come to the conclusion that everyone was out and out to falsely implicate him. What Rajkumar Jain (PW6) would have gained by creating and fabricating a false attendance register? It is not the case of the accused that Rajkumar Jain (PW6) was also inimical to him.
17. It brings me to the question as to whether the accused had had a knowledge of currency note being counterfeit.
18. Rajman (PW3) has categorically stated that when he found the currency note to be fake and having red cross marks, he had pointed it out to the accused. In my view the accused should have on being told that it was a counterfeit note, taken away the note Ex.P-1. His insistence proves his guilty mind.
19. Now, this brings me to the question as to what offence had been S.C. No. 42/05/06 10 committed by the accused.
20. He has been charged under Section 489-B IPC. Under Section 489- B IPC one of the requirements is that the accused knew or had reason to believe the note to be forged or counterfeit. In the present case, initially, the accused may not be knowing that it was forged. However, he was informed by Rajman (PW3) that it was a counterfeit currency note. As mentioned earlier, the accused should have taken the currency note back and should not have insisted that it was genuine. In my view, the accused is liable to be convicted under Section 489-C IPC. He is accordingly, convicted under Section 489-C IPC.
Announced in the open court (H.S.SHARMA) On this day of 20th May 2008 ASJ/DELHI All pages signed