Delhi District Court
State vs (1) Jahir Hasan on 11 December, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0109172014
Sessions Case No. 32 of 2014
State Versus (1) Jahir Hasan
Son of Habib Hasan
Resident of Village Tugalpur Kamhera
PS Purkaji
District Mujaffar Nagar, U.P.
(2) Tufel Varis Khan
Son of Sagir Khan
Resident of Village Nanura
Tehsil Ladia Sarai
District Darbhanga, Bihar
(3) Sarfaraz
Son of Mohd. Shish
Resident of Village Paigambarpur
Dhirgwa, PS Tajpur
District Samastipur, Bihar.
FIR No. : 19 of 2014
U/s: 489B/489C read with Section 120B IPC
PS: Special Cell
Date of institution of the case : 11.08.2014
Date when the case reserved for judgment : 08.12.2015
Date of announcement of judgment : 11.12.2015
JUDGMENT
1. Tufel Varis Khan, Jahir Hasan and Sarfaraz are facing trial in this Court for offences punishable under Sections 120 B and 489B and 498C of Indian Penal Code (hereinafter referred to as 'IPC').
State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 1/20
2. The case set up by the prosecution as per the contents of the Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is that on 26.04.2014 Sub-Inspector (SI) Amrik Singh received secret information at about 6.45pm from an informer to the effect that two persons namely Tufel Varis Khan and Sarfaraz belonging to Darbhanga, Samstipur, Bihar were involved in trafficking of Fake Indian Currency Notes (FICN) in the denomination of Rs.1000/- and Rs.500/- which they had procured from West Bengal and used to sell in Delhi, UP and nearby places.
3. Specific information given was that these two persons would meet Jahir Hasan, a resident of UP between 8.00pm to 8.30pm near gate No.4 of Millennium Park, Delhi. SI Amrik Singh after satisfying himself about the reliability of the informer shared this information with Inspector (Insp.) Subhash Vats who also interacted with the informer. He thereafter shared the information with senior police officers who directed immediate action to conduct a raid to apprehend these persons.
4. As per the instructions received, SI Amrik Singh constituted a police team under the leadership of Insp. Subhash consisting himself, SI Vinod Kumar, Assistant Sub-Inspector (ASI) Ajay Vir, (Head Constable) HC Ram Gopal, HC Sanjeev Kumar, HC Rajesh Kumar, Constable (Ct.) Anoop Kumar. The informer was also associated with the team. The police team left with their arms and ammunition taking from the Malkhana and IO bag from the office to the using a police Gypsy DL-1CJ-3486 driven by HC Rajesh and two motorcycles. Insp. Subash Chand was sitting in the front passenger seat of the State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 2/20 Gypsy while SI Amrik Singh, SI Vinod Kumar and the secret informer were sitting in the rear. One private motorcycle was used by HC Ram Gopal with Ct. Anoop sitting as pillion and other private motorcycle was used by HC Sanjeev Kumar with ASI Ajay Vir sitting as pillion. The police team went to the spot via Barapula Road, Sarai Kale Khan and arrived at gate no.4 of Millennium Park.
5. On the way near Sarai Kale Khan Depot, SI Amrik Singh tried to associate 4 to 5 pedestrians to join the proceedings of the police team as well as 3 to 4 other pedestrians at the spot near Millennium Park but all of them declined citing their genuine reasons without disclosing their names and addresses. Without wasting further time, SI Amrik Singh got the police Gypsy and two motorcycles parked near gate no.3 which were left in the custody of HC Rajesh. SI Amrik Singh along with the secret informer and SI Vinod Kumar and Insp Subash Chand positioned themselves inside the gate no.4 of the Millennium Park and hid themselves. Other members of the police team HC Ram Gopal and Ct. Anoop positioned themselves just before gate no.4 and ASI Ajay Vir and HC Sanjeev positioned themselves in front of the left side of the gate.
6. At about 8.00pm, one person was seen coming on a black coloured motorcycle bearing registration No. HR-08K-1547 make Bajaj Platina from the side of Sarai Kale Khan. He stopped and parked his motorcycle near gate no.4. This person was found to be wearing a brown coloured shirt and brown coloured striped trousers who the informer identified as Jahir Hasan. Jahir Hasan started waiting for somebody at that place. After about ten minutes one autorickshaw State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 3/20 came and stopped at gate no.4 of Millennium Park out of which two persons got off and started talking to Jahir Hasan. These two persons were identified by the informer as Tufel Varis Khan and Sarfaraz after which the informer left. These three persons started talking to each other. Sarfarz had brought a bag with him out of which he took out a wad of notes and handed it over to Jahir Hasan. Tufel Varis Khan had a plastic packet in his hand out of which he took out second wad of notes and handed the same over to Jahir Hasan. Jahir Hasan kept both these wads in the pockets of his trousers. Just when these three persons were about to leave, SI Amrik Singh with the help of the members of his police team apprehended accused persons. Jahir Hasan was apprehended by SI Vinod. Tufel Varis Khan was apprehended by SI Amrik Singh and Sarfaraz was apprehended by ASI Ajay Vir. SI Amrik Singh called the police Gypsy to the place of apprehension. All the three accused persons were informed about the presence of the police team and the information given about them by the secret informer. These three persons disclosed their names as given by the secret informer. The police team offered their own search to the accused persons but all three of them refused in respect of which a refusal memo was prepared at the spot. Eight to ten persons of the public had gathered at the spot who the police team tried to associate with their proceedings and all of them again refused and left without disclosing their names and addresses.
7. SI Amrik Singh took the search of the person of Jahir Hasan. From the right pocket of his trouser one wad of currency notes in the denomination Rs.1000/- and from his left pocket another wad of currency notes of denomination of Rs.1000/- were found. Both the wads State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 4/20 were found to be affixed with rubber bands. Both these wads had 100 notes each. Examination of these notes revealed that the font of '1000' and its colour were different. Security threads etc. made the appearance of the currency notes to be fake. Their serial numbers were noted down. The wad found in the right pocket was kept in one yellow envelope marked 'JR' and the wad found from the left pant pocket was kept in another yellow envelope which was marked as 'JL'. Both these envelopes were kept in one plastic box and sealed with the seal of 'AS' and the plastic box was marked 'J1'. This plastic box 'J1' was taped and seized vide seizure memo.
8. SI Amrik Singh took the personal search of Tufel Varis Khan. He was found to be carrying one plastic packet in his right hand. This plastic packet was found continuing one wad of 100 currency notes of denomination of Rs.1000/- each. They also appeared to be fake. Their serial numbers were noted down. This wad was kept in a yellow envelope and the wad was secured with a rubber band. The envelope was kept in a plastic box marked 'T2', secured with doctor tape and seal of 'AS' was affixed and the box was seized.
9. SI Amrik Singh then conducted the personal search of Sarfaraz. He had one black coloured bag made of cloth / rexine on which 'Sport' was written. This bag upon checking was found to be containing a yellow plastic packet with the word 'Empire' and some words in Bengali printed on it. The same was found containing two wads of 100 notes each of denomination of Rs.500/- which appeared to be fake. The serial numbers of the notes were noted down. Both these wads of FICN were kept in separate yellow envelopes, put in a plastic State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 5/20 box 'S3' and secured with tape. The plastic box was sealed with the seal of 'AS' and seized. The seal after use was handed over to SI Vinod.
10. Rukka of the proceedings of the police team was drawn by SI Amrik Singh and was sent to the police station (PS) for registration of the FIR through ASI Ajay Vir Singh who went to the PS with the police gypsy driven by HC Rajesh. SI Amrik Singh along with the remaining staff and accused persons and case property remained at the spot.
11. Upon registration of the FIR, the same was assigned for investigation to SI Krishan Kumar who proceeded to the spot of apprehension of the accused persons where he met SI Amrik Singh with the police team. He was handed over the custody of the accused persons as well as seized case property. SI Krishan Kumar prepared a site plan at the instance of SI Amrik Singh and took into possession the motorcycle and helmet used by Jahir Hasan. SI Krishan Kumar interrogated the accused persons and personally searched them. Two mobile phone handsets were recovered from Tufel Varis Khan along with two bus tickets from Roorkee to New Delhi of Uttrakhand Transport and two railway tickets from Muzaffarpur to Haridwar which were seized. From the personal search of Sarfaraz, one mobile handset and two SIM cards were recovered. The IO arrested the accused persons. SI Krishan Kumar took into possession the Bajaj Platina Motorcycle bearing registration number plates HR-08K-1547 with key and helmat through a seizure memo from SI Amrik Singh. As per the charge-sheet, during investigation, it was found that the said motorcycle had been State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 6/20 stolen from the jurisdiction of PS Kaithal City, Haryana in respect of which FIR No. 367 of 2010 under Section 379 of the IPC had been registered. SI Krishan thereafter brought the accused persons along with the seized case property to office of the Special Cell. The case property was deposited in the Malkhana of PS Special Cell.
12. Disclosure statements of the accused persons were recorded by the SI Krishan in which they admitted their involvement in the circulation of FICN. The IO collected the Customer Application Forms (CAFs) and Call detail Records (CDRs) of the mobile phones and SIM cards recovered from the accused persons. The accused persons had disclosed the source of FICN from them. Investigation was carried out on the basis of the disclosures made but not clue was found regarding their source of FICN. The seized currency notes were sent to the CFSL for forensic examination and as per its report, the currency notes recovered were found to be fake. The seized currency notes were sent for examination to the CFSL CBI Lodhi Road. As per the FSL Report the seized currency notes were found to be fake. After recording of the statements of the witnesses and collecting necessary reports of the FSL, IO filed the charge-sheet in the Court.
13. By order dated 05.09.2014 charges as recorded above were framed against accused persons to which they pleaded not guilty and claimed trial. During the course of trial, the accused persons admitted the report of the CFSL CBI under Section 294 of the Cr.P.C. which was marked as Ex.PX1 and the author of the said report D.R. Handa, SSO CFSL CBI was dropped as a witness. The prosecution has examined thirteen witnesses to bring home the charges against the State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 7/20 accused persons. The members of the police team who apprehended the accused persons examined as witnesses are SI Vinod PW7, ASI Ajay Vir PW7A and SI Amrik Singh PW12. PW1 Meena Sharma is the official from Uttarakhand Parivahan Nigam who verified the bus tickets recovered from the accused. PW2 P.K. Singh is the official from East Central Railway, Muzaffarpur who verified the railway tickets recovered from the accused. PW3 is the Nodal Officer of M/s Aircel Ltd. PW4 is the Nodal Officer of M/s Bharti Airtel. PW5 is the Nodal Officer of Tata Teleservices Ltd. All the Nodal Officers had produced CDRs and CAFs of the mobile phone numbers recovered from the accused persons. PW6 Manoj Kumar Mishra is the official from Voter Registration Centre, District Pratap Garh, U.P. who has given a report regarding the voter ID card number ZUK0135674. PW9 HC Gyanender had gone to Pratap Garh to get the Election Identity card verified from the issuing authority. Ct. Manish Kumar PW10 had collected the exhibits from the MHCM and deposited the same with the CFSL, CGO Complex. PW11 HC Narayan Ram is the Duty Officer who recorded the FIR on the basis of the rukka sent by SI Amrik Singh through ASI Ajay Vir. PW13 SI Krishan Kumar is IO of the case.
14. After conclusion of evidence of the prosecution statements of all the three accused persons were recorded under Section 313 of the Cr.P.C. in which they claimed false implication. None of the accused persons desired to lead evidence in defence.
15. On behalf of the State, Ld. Addl. PP had argued that there was sufficient evidence on record to prove the charges framed against the accused persons.
State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 8/20
16. On the other hand,Ld. Counsel for the accused persons have argued that the accused persons have been falsely implicated in this case. They submitted that there were numerous contradictions in the version of the prosecution witnesses. No public witness was associated with the proceedings of the police team. They submitted that as per the case of the prosecution the accused persons used to sell FICN worth Rs.1,00,000/- for genuine currency of Rs.60,000/- but in the present case the genuine currency recovered from the accused persons was negligible. They submitted that PW7 and PW12 have refused to provide the CDRs of their personal phones which would have revealed that both these police officers were not present at the spot on that day.
17. I have heard counsel for the parties and have perused the record of this case. My findings are as under:-
18. As recorded above, the witnesses examined in respect of apprehension of the accused persons and recoveries effected from them SI Vinod PW7, ASI Ajay Vir PW7A and SI Amrik Singh PW12. All of them have deposed similarly in their examination in chief.
19. In cross-examination, PW7 deposed that the secret information was recorded in the daily dairy register at about 7.05pm but he could not remember the DD number. He did not receive any arms and ammunition before leaving the office of Special Cell. He could not remember the registration number and make of the motorcycle used by him. The secret informer had met him but he could not remember the description of his clothes. He could not remember the names and State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 9/20 descriptions of the persons who were asked to join the investigation. He admitted that SI Amrik Singh did not serve any notice on the public persons who had refused to join the investigation. He did not know how many gates were there in Millennium Park. He did not know which gate had the facility for parking of vehicles. He could not state the registration number of the auto rickshaw in which the accused persons came. He admitted that IO did not try to trace the TSR driver. He could not remember the description of the clothes worn by the accused persons. He stated that the secret Informer left the spot after gathering of the accused persons after 8:10pm. He admitted that Insp. Subhash had already left the spot by some other vehicle but he could not remember its description. He deposed that SI Amrik Singh by his own experience inferred that the seized currency was fake. He admitted that public persons were available in Millennium Park but denied the suggestion that police did not try to join any public witness to the proceedings despite their availability. He admitted that refusal memo of accused persons was not in their handwriting. He could not remember whether he had told the IO in his statement that the secret informer had identified all the three accused persons by their names at the spot. He was confronted with his statement Ex.PW7/DA where it was not so recorded.
20. PW7 further deposed in cross-examination that no mobile phone was found in the person of Jahir Hasan. He deposed that Jahir Hasan was interrogated by the IO in his presence and while Jahir was in the custody of IO, he called other two persons to reach the spot. He further deposed that Jahir Hasan made the said call from an STD booth but he did not know from which STD booth the call was made by Jahir State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 10/20 Hasan. PW7 then tried to explain that Jahir Hasan in his disclosure statement had stated that he had already called the co-accused on phone to reach the spot. He deposed that the IO did not take any steps to look for the STD booth from which Jahir Hasan made the said phone call. He deposed that the two accused used to procure FICN from Jahir Hasan and used to pay genuine money of Rs.60,000/- for supply of FICN of Rs.1,00,000/-. He deposed that in the personal search of Tufel, Jahir and Sarfaraz only Rs.130/-, Rs.100/- and Rs.10/- of genuine currency was found.
21. PW7 in his further cross-examination deposed that he had a personal mobile no.8010388068 which he was using for the last five years. He deposed that he has not gone outside Delhi between 25.04.2014 to 27.04.2014. He deposed that his connection was post paid and he used to receive call details with the bills. He deposed that he could not show the call details between 25.04.2014 to 27.04.2014 to the Court. He denied the suggestion that he was in Laxar, District Haridwar, Uttaranchal on 25th and 26th April, 2014 from where Jahir Hasan had been picked up and brought to Delhi. He denied the suggestion that he was concealing his call records from the Court. He could not remember whether he had told the IO in his statement Ex.PW7/DA that upon checking the registration number of the motorcycle seized it was found to be fake and its actual number was HR-08G-5080. When he was confronted with his statement, the said facts were not found to be recorded. He deposed that seizure memos were prepared at the spot on the bonnet of the Police Gypsy which was stationed at the place of arrest of the accused persons at the time of preparation of the documents.
State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 11/20
22. PW7A in his cross-examination deposed that no notice was given by the IO to the persons who have refused to join the investigation. He had not stated in his statement under Section 161 Cr.PC that Insp. Subhash Vats had deployed raiding team on different points. He did not notice any guard at the gate of Millennium Park. He could not say whether there were guards posted on each gate of the said park. He did not note down the number of auto rickshaw in which accused Tufel and Sarfaraz had come. No mobile phone was recovered from accused Jahir Hassan in his presence. His statement Ex.PW7A/DA was put to him in which he admitted that it was not recorded in his statement that the seal 'AS' had been handed over to him. PW7A immediately thereafter clarified that he could now remember that the seal had not been handed over to him but handed over to SI Vinod but due to confusion he had wrongly stated in his examination in chief that the seal had been handed over to him. He deposed that the accused persons were questioned in his presence but no question regarding the rate of sale of FICN had been put to any of the accused persons in his presence. He deposed that the seizure memos were prepared while sitting on the bonnet of the police gypsy. He deposed that he had gone to the spot on the motorcycle of HC Ram Gopal but could not state its registration number. He did not know at which gate car parking facility was available in Millennium Park. He could not remember whether anything was written on the polythene packet recovered from the accused Tufel.
23. PW12 in his cross-examination deposed that he did not made any separate DD entry regarding the receipt of secret information.
State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 12/20 He stated that he had made a departure entry in which he recorded the secret information. He voluntarily explained that he had noted the secret information on a rough paper and discussed the same with team leader Insp. Subhash Vats but he did not retain the same. He deposed that the DD Entry was made with the help of the rough note. He deposed that he made attempts to join the pedestrians opposite Millennium Park as witnesses to the police proceedings but all of them refused without disclosing their names and addresses. He did not serve any notice on them. He deposed that there was no shop or establishment near gate no.4 of Millennium Park. He tried to look for guards of the park but did not find any person there. He was present at the spot from 8pm to 7am but could not observe any PCR Van or PCR motorcycle patrolling the area near gate no.4. He did not know which was the jurisdictional PS of the said area and that he had not given information about arrest of the accused persons to any local PS. He deposed that he had not mentioned in the case diary or rukka that he had tried to look for guards of the park. He did not know how many gates were there in the Millennium Park or whether there was any parking facility for vehicles in the Millennium Park. He deposed that he could not state as to how the accused persons had communicated with each other to meet at gate no.4 of the said park. He deposed that he did not personally inquire from the accused persons whether they used to take any amount in cash or kind after delivery of FICN. He could not remember the amount of cash recovered from searches of the accused persons. He deposed that he was using mobile no.9871137763 and that he was in Delhi between 24 th to 26th April, 2014. He deposed that he could not bring the call details record in the Court for the said dates. He denied the suggestion that on 25th and 26th April, 2014 he was in Laxar, District Haridwar, Uttaranchal State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 13/20 from where Jahir Hasan was picked up and brought to Delhi. He
deposed that he prepared a rukka while sitting inside the police gypsy under the light of the tubelight affixed in the gypsy.
24. HC Ram Gopal PW8 in his examination in chief has deposed that on 26.04.2014 he had participated in the raid at Millennium Park where these three persons were apprehended and recoveries were made from them. He admitted that he had not made any statement to the IO regarding his presence and participation in the said raid.
25. PW13 SI Krishan Kumar in his cross-examination has deposed that he prepared the documents by keeping the papers on the bonnet of the gypsy. He had confirmed from the SHO Kaithal regarding theft of the motorcycle and was told that Jahir Hasan had been convicted in that case. He deposed that as per the CDRs, only one call was found to be made on the phone of Jahir Hasan from the mobile phone of Tufel Varis Khan.
26. There is no public witness associated with the proceedings of the police team at any point of time. The police witnesses have deposed that they tried to associate members of the public i.e. pedestrians with their proceedings but all of them had refused. The names and particulars of these public persons have not been noted down. No notice in writing has been given to them.
27. In the case of State vs. Om Prakash, Crl. L.P. 74 of 2013 decided on 05.08.13, the Hon'ble High Court of Delhi was considering a State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 14/20 challenge by the State against an order of acquittal passed by the Trial Court in a case involving recovery of FICN. Amongst others, the Hon'ble High Court upheld the grounds of acquittal to the effect that the supervising officer of the raiding team was not cited as a witness; that the provisions of Section 100 (4) of the Cr.P.C. regarding association of two or more independent and respectable inhabitants of the locality not being associated with the search and recovery proceedings; that despite availability of an independent recovery witness she was not associated; that asking passersby who were not ready to even disclose their names to join the investigation could not be termed as genuine efforts; that the officers of the raiding team did not record their arrival or departure in the roznamcha register and that use of private vehicles without any special circumstances and failure to maintain log books of such private vehicles.
28. In the present case as well efforts were made only to associate passersby with the proceedings of the police team which are not genuine efforts. The members of the police team examined as witnesses feigned ignorance about the existence of any public offices near the place of apprehension. Judicial notice of the fact can be taken that opposite Millennium Park there exists a huge DTC Depot. Further near the place of apprehension also exists the Northern Railway Coach Care Centre Hazrat Nizamuddin. The police team was present at the spot from 8pm to 7am. Surely during this period, they could have associated Government servants from the said offices but they failed to do so. In fact they did not even know about the existence of these public offices. It is also hard to believe that no PCR van or police patrol motorcycle would have passed them for such a long period i.e. 8pm to State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 15/20 7am. This casts a doubt as to whether the accused persons were actually apprehended from the place of incident or from some other place.
29. Apart from the absence of the public witnesses, the following contradictions are found in the versions of the police witnesses examined in this case:-
(a) As per the charge-sheet the seal 'AS' after use was handed over to PW7 SI Vinod. PW7 in his examination in chief has deposed that the seal after used was handed over to him. However PW7A ASI Ajay Vir in his examination in chief claimed that the seal after use was handed over to him by SI Amrik Singh. In cross-
examination, PW7A was confronted with his statement Ex.PW7A/DA and he admitted that as per the same, seal had been handed over to SI Vinod PW7. He tried to explain his lapse by claiming that he was confused;
(b) PW7 in his cross-examination has deposed that no mobile phone was found in the personal search of Jahir Hasan. He deposed that Jahir Hasan while in custody of the IO had called the two other accused on phone to reach the spot. He then deposed that this call was made by Jahir Hasan using an STD Booth but there was no STD Booth near Millennium Park. He deposed that he did not know from which STD Booth Jahir made the phone call. He tried to explain that Jahir in his disclosure statement had stated that he had already called the co-accused to reach State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 16/20 the spot. He deposed that the IO did not take any steps to trace the said STD Booth.
This version of PW7 regarding Jahir Hasan calling co-accused to the spot while being in custody of the IO runs absolutely contrary to the case set up by the prosecution regarding the three accused persons gathering at gate no.4 after talking amongst themselves;
(c) PW7 had deposed in cross-examination that the accused persons had disclosed that they used to procure FICN after making payment of money in the ratio of Rs.60,000/- genuine currency for FICN of Rs.1,00,000/-. The personal search of the all the three accused persons revealed cash of Rs.130/- with Tufel Varis Khan, cash of Rs.130/- with Jahir and Rs.10/- from Sarfaraz. It is quite unnatural that the accused persons would be found with such paltry amounts of genuine currency when they were carrying FICN worth Rs.3,00,000/-;
(d) As per PW7 and PW13 the paper work was made while keeping the papers on the bonnet of the police gypsy whereas PW12 has deposed that it was done while sitting inside the police gypsy under the tubelight inside the police gypsy;
(e) Both PW7 and PW12 disclosed their mobile number in cross-examination but refused to produce the same in Court. Suggestion was given to them that they State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 17/20 were in Laxar, District Haridwar, Uttaranchal on 26.04.2014 and it is for this reason that they shying away from producing the same before the Court;
(f) PW8 HC Ram Gopal in his examination in chief claimed that he was also part of the police team which had apprehended the accused persons on 26.04.2014. In fact, even as per the charge-sheet PW8 was part of the police team on that day. In cross-examination, he deposed that his statement was recorded by the IO on 21.06.2014 and that in his statement he had not stated to the IO that he was part of the police team on 26.04.2014.
I have gone through the statement of PW8 recorded under Section 161 of the Cr.P.C. on 21.06.2014. The same does not record any fact of PW8 being present with the police team on 26.04.2014. It is only restricted to PW8 going to the office of the Transport Corporation Uttrakhand to verify the bus tickets and to the Muzaffarpur Railway Station for verification of the railway tickets;
(g) As per contents of the charge-sheet PW13 SI Krishan Kumar found out that the motorcycle used by Jahir Hasan was stolen in respect of which FIR No. 367 of 2010 under Section 379 IPC stood registered at PS Kaithal City Haryana. Not a single witness in respect of registration of the said FIR or even the complainant of the said FIR has been examined in this case. Even copy of the said FIR has not been filed with the charge-sheet. PW7 in his State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 18/20 examination in chief has deposed that on checking through "ZIPNET" the registration number of the said motorcycle was found to be fake. This statement of PW7 was not found in his statement Ex.PW7/DA recorded under Section 161 of the Cr.P.C. when confronted;
(h) As per the case of the prosecution mobile number 9169463117 was recovered from Tufel Varis Khan and mobile number 8084430511 was recovered from Sarfaraz. Accused Jahir Hasan was not found with any mobile phone. Ex.PW13/B is a connectivity chart prepared by PW13 to show that they present together on 25.04.2014, boarded the train on 25.04.2014 and deboarded on 26.04.2014. Ex.PW13/C is a route chart as per which the location of mobile number 9169463117 is shown to be at Vasundhara Ghaziabad at 7:36pm on 26.04.2014. As per the case of the prosecution, the accused Tufel Varis Khan had reached the spot at 8:15pm on 26.04.2014. The distance between Vasundhara Ghaziabad and gate no.4 of the Millennium park is considerable. It is highly unlikely that the person using the number 9169463117 would have reached the spot of apprehension from Vasundhara Ghaziabad in such time; and
(i) As per case of the prosecution, Tufel Varis and Sarfaraz had alighted from an autorickshaw at gate no.4 of Millennium Park after which they met Jahir Hasan. At least, the police could have make an attempt to produce State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 19/20 the said autorickshaw or at least, examined driver of the autorickshaw to corroborate their version that he had dropped these two persons at gate no.4 of Millennium Park at about 8:15pm. All the witnesses in cross-examination admitted that no attempt was made at all to associate the driver of the said TSR with the proceedings of the police team.
30. As recorded above no public witness has been associated with the proceedings of the police team. No credible attempt was made in this direction. Inconsistencies in the versions of the police witnesses have been found which are only amplified by the absence of public witnesses. In these facts and circumstances, it cannot be said the prosecution has been able to prove its case beyond reasonable doubt.
CONCLUSION
31. The net result of the above discussion is that accused Tufel Varis Khan, Jahir Hasan and Sarfaraz are acquitted of all the charges framed against them.
32. File be consigned to record room.
Announced in the open Court (REETESH SINGH)
on 11th December, 2015 ASJ-02/FTC, PHC/NDD
11.12.2015
State vs. Tufel Varis Khan & Ors.
FIR No.19 of 2014, PS: Special Cell 20/20